LAW 555

LABOUR LAW

Renouf

LABOUR LAW

PART ONE: INDIVIDUAL EMPLOYMENT LAW

Employment law involves the legal relationship between employer and employee where the employee is not represented by a union.

Defining the Employment RelationshipThe meaning of the terms "employee" and "employer" vary from context to context. A person may be an employee for the purposes of one statute but not for another. However, there are some common elements to the definitions.• The employment relationship is created by contract. Therefore, one chooses to

become an employee or an employer.• For a contract of employment to exist, it must satisfy the legal tests which apply to all

contracts.• Unless legislation or the common law otherwise provides, the parties to an

employment contract are free to make whatever deal they please, and put into thecontract whatever terms they wish.

• The remedies for breach of an employment contract are the normal contractualremedies (i.e. damages and in some cases injunctions).

• If there is no contract, there is no employment relationship.

Why is the Distinction Important?• Tort liability (employers are vicariously liable for torts of their employees, but not for

independent contractors)• Employment benefits• Application of the Employment Standards Code• Qualification for WCB• Criminal Liability

Tests for Distinguishing the Employment Contract from Other ContractsControl: An employer exercises a higher degree of control over the work of an employee than an independent contractor. The control test tends to break down, especially in the case of highly skilled employees.

Lord Wright's Four-Point Test : Since control is not always conclusive, it is often necessary to examine various elements which constitute the relationship between the parties including © control, © ownership of the tools, © chance of profit, and © risk of loss.

Denning's Business Integration Test : Under a contract of service, a man is employed as part of the business, and his work is done as an integral part of the business. Under a contract for services, his work, although done for the business is not integrated into it, but is only accessory to it.

Other Factors:

• The contract itself may say that the relationship is one of employment. This is notdeterminative. The court will look at the relationship as a whole.The alleged "employee" may employ other people. This is not conclusive but tends to suggest that the person is not an employee.The alleged "employee" may work for several "employers". Also not conclusive, but this situation suggest that the individual is not an employee.

Regina v. Mac's Milk Ltd. [19731 Alberta Supreme CourtFacts: Mac's Milk entered into a contract with an individual to manage one of thecompany's stores. The store manager was terminated and he brought an action againstMac's Milk for failure to pay money in lieu of vacation. Mac's Milk argued that it wasnot an employer and the manger was not an employee within the terms of the AlbertaLabour Act and therefore the terms of the Act with respect to vacations were notapplicable.Issue: Was the store manager an employee or an independent contractor?Analysis: The contract between the store manager and the company set out thefollowing:• It was the duty of the store manager to manage and operate the store. Certain

management functions were set in the contract.• The manager was personally accountable to the company for the retail-selling price of

all merchandise.• The employment of the store manager could be terminated for cause or without cause.

The store manager was required to provide, at his own expense, a staff of employees.The language of the contract indicated that it was a contract of employment.

• The manager was paid a commission based on total sales.Employee is defined by the Act as "a person engaged in an industry who is in receipt of or entitled to wages for labour or services performed wherever the labour or services are performed. The Court found that the four-point test was the appropriate in this situation. Using this test, the Court concluded that the store manager had not been carrying on business on his own behalf but that he was managing and operating the store on the company's behalf and was therefore, an employee.Held: The store manager was found to be an employee and was entitled to costs. Note: The main factor in this finding was control, not only to direct the work the employee is required to do but the manner in which the work is to be done (Halsbury Definition). Courts are increasingly using this approach.

Cormier v. Alberta Human Rights Commission and Ed Block Trenching Ltd. [19841 Alberta Court of Queen's BenchFacts: Cormier was a truck driver living in Grande Cache. He owned his own truck. Ed Block Trenching was the major employer in Grande Cache and routinely hired truckers outside of Grande Cache but refused to hire Cormier and his truck. Cormier believed that the company refused to hire him because he is black. He brought a complaint before the Alberta Human Rights Commission, however his complaint was dismissed on the basis that the relationship between Ed Block Trenching and the various truck drivers was one of dependent-contractor rather than employer-employee. The Commission found that the dependent-contractor relationship is not covered by the Act.

Issue: Is Ed Block Trenching an employer for the purposes of the Individual's RightsProtection Act?Analysis: Section 7(1) of the Individual's Rights Protection Act states:No employer or person acting on behalf of an employer shall

(a) refuse to employer or refuse to continue to employ any person or(b) discriminate against any person with regard to employment or any term or

condition of employment,because of the race, religious beliefs, colour, sex, physical characteristics, martial status,age, ancestry or place of origin of that person or of any other personThe Court found that where the language of the Act is doubtful or ambiguous, it shouldbe given a remedial and liberal construction . The Court gave a broad meaning to theword employment, defining it as any contract in which one person agrees to execute anywork or labour for another. By this broad definition, Ed Block Trenching was anemployer for the purposes of the Act.Held: The Commission's decision that it lacked jurisdiction was quashed and it wasordered to hear Cormier's complaint.Note: For the purposes of human rights legislation, Cormier was considered anemployee. However, in other contexts, this might not be so. Context is very important.(1) Look at the purpose of the legislation and (2) Look at the definition of employee, ifany, in the legislation.

Levels of Analysis in "Employee" Determination:• Purpose of the statute: Is it intended to cover the immediate situation?• Definitions in the statute: Are the requirements satisfied?• Contractual analysis: What indictors of relationship appear in the contact?• Factual circumstances: Was the person actually an employee?(All four levels of analysis should be used.)

Indicators of the Relationship:• Who selects the individual who performs the service?• Is the individual paid on fixed, annual or monthly basis or in a lump sum with risk?• Who controls the result?• Who reaps the benefits? Does the person have a fixed interest or can they share the

profit?• Who owns the equipment?• Who determines the time frame of the work?

Is the work integrated into the business?

Formation of the ContractThe employment relationship is contractual. Therefore, the general rules of contract apply the employment situation unless modified by statute.

Generally, employment contracts need not be in writing. There are some exceptions to this rule:(a) Collective agreements: A collective agreement by definition is an agreement in

writing between an employer or an employers' organization and bargaining agent

containing terms or conditions of employment, and may include one or more documents containing one or more agreements

(b) Contracts for more than one year: The English Statute of Frauds states that "no actionshall be brought.. .upon any agreement that is not to be performed within the space ofone year from the making thereof unless the agreement is inwriting and signed by theparty to be charged therewith." This provision has been held to apply to employmentcontracts, but only those which could not possibly be performed within one year. Theusual indefinite employment from month to month is not within the statute.

(c) The Alberta Masters and Servants Act provides that "a contract of hire of personalservice for a period of more than one year shall be in writing and signed by thecontracting parties." This requirement of writing is limited to contracts ofemployment which are enforced under the Masters and Servants Act.

Human Rights, Citizenship and Multiculturalism ActThe Labour Relations Code also modifies the general rules of contract as applied toemployment contracts.Section 147 No employer or employers' organization and no person acting on behalf ofan employer or employers' organization shall

(a) refuse to employ or to continue to employ any person or discriminate against anyperson in regard to employment or any term or condition of employment becausethe person

i. is a member of a trade union or an applicant for membership to a tradeunion, ii. has indicated in writing his selection of a trade union to be the

bargainingagent on his behalf, iii. has been expelled or suspended from

membership in a trade union for areason other than a failure to pay the periodic dues, assessments andinitiation fees uniformly required to be paid by all members of the tradeunion as a condition of acquiring or retaining membership in the tradeunion, iv. has testified or otherwise participated in or may testify or

otherwiseparticipate in a proceedings under this Act, v. has made or is about to make

a disclosure that he may be required to makein a proceedings under this Act,

vi. has made an application or filed a complaint under this Act, vii. has participated in any strike that is permitted by this Act, or viii. has exercised any right under this Act;

(b) impose any condition in a contract of employment that restrains, or has the effectof restraining, an employee from exercising any right conferred on him by thisAct.

TERMS OF THE CONTRACT OF EMPLOYMENTThere are three types of terms: Express, Implied and StatutoryExpress Terms : Oral or written. Beware of the parole evidence rule. If an agreement isin writing, oral evidence contrary to the contract cannot be introduced.Implied Terms : Terms arising from common practice or common law will be implied.

Statutory Terms: Terms that are part of the contract by virtue of statutes (ex. EmploymentStandards Code).Employment Standards CodeThe Employment Standards Code provides some minimum terms which are required tobe a part of all contracts of employment within the ambit of the Code. While the Codeprovides minimum standards, parties can always exceed these requirements.

Section 3: Common law rights remain. Can enforce contracts with higher standards. Section 4: An agreement that this Act or a provision of it does not apply, or that the remedies provided by it are not to be available for an employee, is against public policy and void. Sections 6-67 set out basic minimum standards (pay, vacations, etc).

Typical Issues Arising with the Code1. Are the actions in compliance with the Code?1. How are the rights under the Code enforced? (mechanisms in the Code, not via the

superior courts — see "employment standards officer"2. What is the proper forum for disputes? (Note: If an employee suffers a "wrong" and

makes a complaint to employment standards board and the board finds against theemployee, a judge may decide to dismiss the issue based on the board decision. Thecourt will show deference.)

Employer's ObligationsPayment of Wages

Even where an obligation to pay wages is not expressed, the common law will imply an obligation to pay wages.

• Interest on unpaid wages is recoverable.• Code, ss. 8, 11-13• Minimum wages are set by regulation. The current minimum wage in Alberta is

$5.90/hr.

Hours of Work and Overtime• Code, ss. 16-24• The overtime rate is not less than time and a half.• Exemptions, Code ss. 2, 14-43

General Holidays and Holiday Pay• Code, ss. 25-33

Vacation Pay• Code, ss. 34-44

OtherEmployment records, ss. 14-15 Termination of employment, ss. 54-64 Maternity and adoption benefits, ss. 45-53

• Employment of young persons, ss. 65-66Employment of disable people, s. 67

Duty to Provide a Safe Place to WorkEmployers are required to provide employees with safe tools and equipment, a safe system of work and fellow employees who do not foreseeably endanger them.

• This duty may arise in tort or as an implied term of the contract.• An employee can refuse to work in an unsafe situation and in so doing does not give

just cause for termination.

Duty to Provide Notice of Termination, or Payment in Lieu• Generally, an employer must give an employee reasonable notice of termination, or

payment in lieu of notice.• Notice is not required if the employee has provided cause for termination.

Duty to Pay Employees Temporarily 111 • The Canadian common law is unclear as to whether employees who are legitimately

absent from work because of illness or injury are entitled to be paid until theiremployment is terminated or are given pay in lieu of notice. It is generally thoughtthat a duty exists.Employee illness or injury which is permanent or so debilitating that the employee can't do the work frustrates the contract.

Non-Duties• The employer has no implied duty at common law to provide references.• An employer has no duty to provide work for an employee. (Exception where the

employee's wage depends on the amount of work s/he is given or where an employeeneeds exposure as well as payment, as in the case of an actor).

• There is no duty on an employer to take seniority into account in firing, promotion,demotions, etc.

Employee's ObligationsGeneral Rules• Most employees' duties arise from the express or implied terms of the contract,

although some statutory duties exist as well.• If an employee is terminated, s/he has no right to get his/her job back. Exceptions

exist for (1) employees governed by a collective agreement, (2) employees whoseunjust dismissal cases are the subject of an adjudication under the Canada LabourCode, and (3) a few other exceptional situations.

• The employee's only remedy is damages for the employer's failure to give reasonablenotice or pay in lieu.

Duty to Work• The employee's primary obligation is to work or to be ready and able to work if asked

to do so.

• Absenteeism and lateness can amount to a breach of the obligation to work, especiallyif they are wilful and if the employer has provided warning and an opportunity tochange.

Obligation to Obey Lawful Orders• There is a general duty to obey lawful orders.• The orders must be lawful, within the employee's scope of employment, not patently

unreasonable, and not dangerous to the employee's health or safety.

Duty to Avoid Misconduct• There is a wide range of conduct which can lead to dismissal.

Obligation to be Competent• It is difficult to prove that an employee is incompetent enough to justify dismissal

without notice.• Employers may find it prudent to dismiss with notice in such cases.• Employees hired on the basis of specialized skills are an exception.

Duty of Fidelity• There is a general duty to serve one's employer faithfully and honestly.• The duty of fidelity is most often applied in cases of (a) inventions by an employee on

the employer's time, (b) employees engaging in competition with the employer, (c)and misuse of trade secrets or other confidential information.

• The employee woes to his employer the duty to put the employer's interest ahead ofoutside interests.

• The employee may not denigrate (defame) the employer's business. Doing to clientsso may be just cause for dismissal.

• The duty of fidelity may be expressed in the contract. Express terms that areexcessively broad will be struck down by the court.

- It is implied that an employee will not work for a competitor for areasonable period of time within a reasonable geographic scope.

- Geographic scope: limited to type of companies and territory the companyoccupies.

- Period of time: influenced by length of employment, significanceemployee had in the company, etc.

- The more specialized the employee is, the greater the importance of theimplied term.

• The duty of non-competition and confidentiality may extend beyond the term of thecontract.

Confidential Information• What constitutes confidential information of an employer?• Faccenda Chicken v. Fowler (1987 QB) held that customer lists to be confidential

information.• Confidential information can be viewed on a spectrum ranging from VERY

confidential to NOT VERY confidential.

If a judge determines that the information was very confidential, then the employee could be liable for a breach of a duty of fidelity. Courts can/will provide former employers with injunctive relief as a remedy.For very confidential information, the duty is a permanent, ongoing duty that extends beyond the term of employment.

• Information that is easily accessible or able to be researched is no likely to be foundconfidential. (That is, if there is public access to the information.)

• Injunctive remedy may prevent disclosure of confidential information, use of theinformation, unfair competition, prohibit the employment of the employee by the newemployer.

• The Copyright Act provides that inventions, copyrighted material created during thecourse of the employee's employment resided with the employer.Implied terms can be altered by the contract and the presumption of the Copyright Act could be reversed.

Termination of the Employment ContractTerm Employment : Some employment contracts will be terminated without notice on the happening of an event (either on a specified date, the completion of a project, etc.)

Retirement : Retirement on a certain date is a version of term employment. Mandatory retirement cannot be successfully challenged under the Charter or under the Alberta Human Rights, Citizenship and Multiculturalism Act.

Termination by Mutual Agreement : The contract of employment can be brought to an end by express consent of both parties at any time in accordance with general contract law principles. The difficult question in the employment context is ensuring that the employee genuinely consents to a termination settlement rather than having it imposed on him or her by the employer's superior power. The courts will strike down an ostensibly consensual termination settlement if it is "unconscionable" - if the employer has unfairly exploited the employee's inferior bargaining position in order to negotiate terms that are substantially less favourable to the employee than the prevailing industry standard.

Quitting : An employee may terminate his/her own employment upon reasonable notice to the employer. The length of notice that an employee must give in order to resign lawfully is determined by the contract of employment and the employment standards legislation. The Employment Standards Code requires the employee is to give one week's notice if he or she has been employed for longer than three months but less than two years, and two week's notice if he or she has been employed for longer than two years. The employment contract may modify this notice period.

Dismissal : Dismissal is the termination of the contract of employment by the employer. Constructive dismissal can be evidenced by unilateral changes in the employee's job such as demotion, reduction in salary, change in status or powers, or reduction in bonuses. If an employer is terminated for cause, no notice is required. When a person is fired without cause, the employee is entitled to reasonable notice, or pay in lieu of such notice.

The minimum notice period is set by the Employment Standards Code, ss. 9-10, 54-64. however, the common law usually requires a longer and more generous notice period.

WRONGFUL DISMISSALThe Cause of Action: Dismissal is wrongful if it breaches legislation that either prohibits the employer from dismissing an employee for specified reasons or establishes certain procedures that must be followed before dismissal can be invoked. The human rights legislation in all jurisdictions, for example, prohibits dismissal - or any other form of discrimination regarding the employment relationship - on designated protected grounds such as race, sex, disability, and religion.

Construction Dismissal:• According to the general principles of contract law, if one party commits a

repudiatory breach of the contract, the innocent party is entitled, if he or she sochooses, to terminate the contract and sue for damages.

• Certain terms may be considered fundamental such that the breach of such a fundamental term of the contract unilaterally by the employer gives rise to the right of the employee to treat the variation in terms as a repudiation of the contract.

• When an employee quits in response to repudiation of the contract by the employer,the employee is deemed to have been constructively dismissed and can sue fordamages for wrongful dismissal.

• A breach of contract on the employer's part will only ground constructive dismissal ifit is sufficiently serious to be characterized as repudiatory in nature. Otherwise, theemployee's remedy will be restricted to damages flowing from the breach in question,not from wrongful dismissal.

• When employees are constructively dismissed, they must elect to (1) resign/sue, or(2) waiver/affirmation.

Reasonable Notice:• Reasonable notice or payment in lieu applies in cases without cause.• The reasonableness of the notice must be decided with reference to each particular

case, having regard to (from Bardal v. Globe & Mail)the character of employmentthe length of service of the servantthe age of the servant

- the availability of similar employment considering the servant's training,experience and qualificationswhether the employee had been induced to leave secure employment whether the employee had been given a promise of job security

- whether the employer engaged in bad faith conduct

If the employment contract states a lower notice period than the statutory minimum, then the common law notice period will apply (which is longer).

55 (1) Unless subsection (2) applies, an employer may terminate the employment of an employee only by giving the employee(a) a termination notice under section 56,(b) termination pay under section 57(1), or(c) a combination of termination notice and termination pay under section 57(2).

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55 (2) Termination notice is not required(a) to terminate the employment of an employee for just cause,(b) when an employee has been employed by the employer for 3 months or less,(c) when the employee is employed for a definite term or task for a period not exceeding

12 months on completion of which the employment terminates,(d) when the employee is laid off after refusing an offer by the employer of reasonable

alternative work,(e) if the employee refuses work made available through a seniority system,(f) if the employee is not provided with work by the employer by reason of a strike or

lockout occurring at the employee's place of employment,(g) when the employee is employed under an agreement by which the employee may

elect either to work or not to work for a temporary period when requested to work bythe employer,

(h) if the contract of employment is or has become impossible for the employer toperform by reason of unforeseeable or unpreventable causes beyond the control of the employer,

(1) if the employee is employed on a seasonal basis and on the completion of the seasonthe employee's employment is terminated, or

Q) when employment ends in the circumstances described in sections 62 to 64

56 To terminate employment an employer must give an employee written terminationnotice of at least(a) one week, if the employee has been employed by the employer for more than 3

months but less than 2 years,(b) 2 weeks, if the employee has been employed by the employer for 2 years or more but

less than 4 years,(c) 4 weeks, if the employee has been employed by the employer for 4 years or more but

less than 6 years,(d) 5 weeks, if the employee has been employed by the employer for 6 years or more but

less than 8 years,(e) 6 weeks, if the employee has been employed by the employer for 8 years or more but

less than 10 years, or(a) 8 weeks, if the employee has been employed by the employer for 10 years or more.

57 (1) Instead of giving a termination notice, an employer may pay an employeetermination pay of an amount at least equal to the wages the employee would have earnedif the employee had worked the regular hours of work for the applicable terminationnotice period.

(2) An employer may give an employee a combination of termination pay andtermination notice, in which case the termination pay must be at least equal to the wagesthe employee would have earned for the applicable termination notice period that is notcovered by the notice.

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(3) If the wages of an employee vary from one pay period to another, the average of the employee's wages for the 3-month period immediately preceding the date of termination of employment is to be used to determine the employee's termination pay.

Mitigation:■ Upon termination, employees who have been wrongfully dismissed have a duty to

mitigate any losses suffered.■ Mitigation applies to damages in all areas of contract law.■ The employee must make reasonable efforts to seek alternative employment.■ The employee is not expected to uproot the family to another country to find new

work. The circumstances of the employee are taken into account.■ The employer has the burden of proving that there are other employment

opportunities out there that the employee should have taken.■ Employee may start his own business as an attempt to mitigate and it must be a bona

fide business venture and generate income to be deemed an attempt to mitigate.■ Objective test: A reasonable person in the position of the employee would have taken

these steps.

Just Cause: Factors to consider in determining whether an individual was dismissed forcause:

o clearly identified work expectationso work expectations are realistic/reasonableo employee is advised they are not meeting these expectationso employee is given a reasonable time to improveo employee is provided with reasonable assistanceo employee is made aware termination will follow a failure to improve

Where there is just cause, there is no obligation to give notice or pay in lieu. Legitimate reasons for dismissal include:

1. Wilful disobedience or insubordination2. Fraud/dishonesty3. Breach of fidelity4. Brach of company rules or policy (depends on severity,

importance, notice)5. Misconduct in the workplace6. Off-duty conduct7. Unsatisfactory work performance

Must consider the following factors

Damages:• Damages will be based on the amount of notice the employee would have earned

during the reasonable notice period to which s/he was entitled.• Since employees have a duty to mitigate damages, the court will reduce the amount of

damages to which the employee was entitled if the employee does in fact find otherwork or if s/he could have done so by the expenditure of reasonable effort.

Non-union employees in federally regulated industries may request re-instatement as a remedy if unjustly dismissed. Under the Labour Code provisions, there is a 90-day limitation period (if the non-unionized employee (1) has been employed for more than one year (2) is non-management, (3) and the employee was not terminated for lack of work or just cause then the employee may approach the adjudicator and request remedies under the Labour Code including re-instatement and damages).

• Are there aggravated or punitive damages? Can tort claims arise from wrongfuldismissal?Wallace v. United Grain Growers (1997 -~ SCC): Instead of aggravated/punitive damages, the court can add to the notice period to further damages if they find the conduct of the employer to have been unfair, insensitive, etc. To seek additional general damages BUT not an excessive amount is deemed the Wallace factor.

• If the manner in which termination occurred caused health problems (i.e. emotional orpsychological trauma) the employee can seek tort action or additional damages addedto the general damages.

When an employee claims wrongful dismissal, ask the following questions:1. Was she employed in a federally regulated industry?2. Was the employee unionized?3. Do the Canada Labour provisions apply?4. Does the Employment Standards Code apply?5. Human Rights implications - 1 year limitation period.

HUMAN RIGHTS LEGISLATION AND THE CHARTERAlberta Human Rights, Citizenship and Multiculturalism Act

6(1) Where employees of both sexes perform the same or substantially similar work for an employer in an establishment the employer shall pay the employees at the same rate of pay.

7(1) No employer shall(b) refuse to employ or continue to employ any person, or(c) discriminate against any person with regard to employment or any term or

condition of employmentbecause of the race, religious beliefs, colour, gender, physical disability, mental disability, marital status, age, ancestry, place of origin, family status or source of income of that person or any other person. Note: The words "sexual orientation " are to be read into the Act.

The Human Rights, Citizenship, and Multiculturalism Act does not define "employee" or "employer". The courts tend to give these words broad and liberal meanings in the context of human rights legislation.

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British Columbia (Public Service Employee Relations Commission) v. B.C.G.E.U.[19991 Supreme Court of Canada Facts: Ms. Meiorin was employed by the B.C. Ministry of Forests as a member of aforest fighting crew. Although she did her job well, she lost her job three years laterwhen the Government adopted a new series of fitness tests for forest fighters. She passedthree out of the four tests, but failed a fourth one, a test designed to assess whether shemet the Government's aerobic standard.Issue: Did the Government improperly dismiss Ms. Meiorin from her job as a forestfighter? Does the aerobic standard that led to her dismissal unfairly exclude women fromforest fighting jobs?Analysis: Because of their lower aerobic capacity, most women are adversely affected bythe high aerobic standard set by the Government. Meiorin established aprimafacie caseof discrimination. The British Columbia Human Rights Code prohibits discrimination inemployment on the basis of many factors including sex. An exception applies to refusal,limitation, specification or preference based on a bona fide occupational requirement(BFOR). It was the position of the Government that Meiorin failed to meet a bona fideoccupational requirement and therefore, her termination was justified. The court outlineda three-step test for determining whether a prima facie discriminatory standard is a BFOR.An employer may justify the impugned standard by establishing on the balance ofprobabilities:O that the employer adopted the standard for a purpose rationally connected to theperformance of the job;© that the employer adopted the particular standard in an honest and good faith beliefthat it was necessary to the fulfilment of that legitimate work-related purpose; and© that the standard is reasonably necessary to the accomplishment of that legitimatework-related purpose. To show that the standard is reasonably necessary, it must bedemonstrated that it is impossible to accommodate the individual employees sharing thecharacteristics of the claimant without imposing undue hardship on the employer.The Court found that the first two steps of the test were satisfied. The purpose ofimposing an aerobic standard is to enable the Government to identify those employees orapplicants who are able to perform the job of a forest fighter safely and efficiently. Thereis a rational connection between this general characteristic and the performance of thestrenuous tasks expected of a forest fighter. The Court also found that the Governmentadopted this standard in the good faith belief that adopting the standard was necessary tothe identification of those persons able to perform the job safely. It had no discriminatoryintention. However, the third element of the test could not be satisfied. There was noevidence that the aerobic standard constituted the minimum qualification required toperform the job safely and efficiently. Therefore, the aerobic standard was not a bonafide occupational requirement.Held: Meiorin was wrongfully dismissed from her position. The Court ordered that shebe reinstated to her former position and compensated for her lost wages and benefits.Note: Prior to this case, distinctions were made between direct discrimination andadverse affect discrimination. That distinction has been eliminated and is no longer ofuse.

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PART II: COLLECTIVE LABOUR RELATIONS

INTRODUCTIONThe law of collective labour relations governs the employment relationship where employees are represented by unions or are in the process of union organization. It also deals with the relationship between the union and the employer.

The common law of employment is one of contract. Therefore, the fairness of any particular contract of employment depends on the parties possessing roughly equal bargaining power. For many employees, the common law operates unfairly because they have little or no bargaining power with their employers. They bargain individually, not collectively. At common law, an employer has a right to terminate employment, provided the employer gives notice or pay in lieu of notice. The employer is not required to have any reason for the dismissal and even if an employee can successfully sue for wrongful dismissal, the employee may be awarded damages but has no right to get the job back. In response to the inadequacy of the common law, legislation has been passed to create minimum standards to which most employment relationships must adhere. Trade unions have also developed to allow employees to bargain collectively and thereby, increase their bargaining power.

THE LABOUR RELATIONS BOARDThe Alberta Labour Relations Board is responsible for administering a large part of the Labour Relations Code, the Public Service Employee Relations Act, as well as parts of the Colleges Act and Police Officers Collective Bargaining Act. It acts as a neutral body where the parties to labour relations can have their applications dealt with and their complaints resolved.

Matters Handled by the Board• Applications for certification from trade unions wanting to be bargaining agents for

employees.• Applications from employees, trade unions and employers to modify or cancel

collective bargaining rights.• Resolving disputes about the meaning of the Code and the Acts.• Hearing unfair labour practice complaints. These are complaints that the fair play

rules of labour relations established by the Code and the Acts have been breached.The Board grants appropriate remedies when a party establishes a complaint.

• Hearing and deciding applications on factual issues such as whether a person isincluded or excluded from a bargaining unit.

Matters Not Handled by the Board• Mediation• Employment Standards

Wrongful Dismissal• Grievances

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s. 8 Board Composition11 Powers of the Board11(3) Decisions are final and binding11(4) Board has original jurisdiction and can reconsider decisions12 Inquiries, Investigations and Inspections13 For evidentiary purposes board may compel witnesses and the production of evidence14 The board may require, conduct or supervise votes15(1) Employers, employees, trade unions or other interested persons may makeapplications to the board that the Act has been violated.15(1.1) The board may refuse complaints if they are made 90 days after the violationcomplained of.15(2) Parties may ask the board to clarify application of the Act16 Remedies for violation may be issued including but not restricted to:(a) interim or permanent cease and desist order(b) (i) reinstate employees suspended or discharged (ii) pay compensation to employees

suspended or discharged (iii) reinstate a person as a member of a trade union (iv)rescind penalties imposed contrary to the act.

(c) (i) order to bargain in god faith and make every reasonable effort to enter into acollective agreement (ii) prescribe conditions for collective bargaining

(d) (i) certify or refuse to certify a trade union - must still have a vote, (ii) revoke orrefuse to revoke certification

17 If board orders are not complied with they may be filed as orders of the Court18 Privitive Clause. May be judicially reviewed by certiorari or mandamus if originatingnotice is filed within 30 days of decision.

TRADE UNIONS AND EMPLOYERS' ORGANIZATIONSTrade UnionsThe common law treats trade unions as unincorporated associations, like clubs. The legalstatus of trade unions has been changed by legislation. As a result, a trade union can sueor be sued as a legal person for the purposes of the Labour Relations Code. When a tradeunion sues or is sued for a completely non-union purpose, its legal status is unclear. Mosttrade unions use corporate entitles to conduct business (Examples: taking out a mortgage,registering an interest with land titles, etc.)United Nurses of Alberta: Trade union can be sued for criminal contempt of court.

s. l(x) "trade union" means an organization of employees that has a written constitution, rules or by-laws and has as one of its objects the regulation of relations between employers and employees.

Section 23 of the Code gives trade unions the legal personality to act like a corporation.Employers' Organizationsl(n) "employers' organization" means an organization of employers that acts of behalf ofan employer or employers and has one of its objects the regulation of relations betweenemployers and employees, whether or not the organization is a registered employers'organization.

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28(1) For the purposes of this Act an employers' organization is capable of(a) prosecuting and being prosecuted, and(b) suing and being sued.

SCOPE OF THE LEGISLATION1 (1) "employee" means a person employed to do work who is in receipt of or entitled to wages, but does not include

(i) a person who in the opinion of the Board exercises managerialfunctions or is employed in a confidential capacity in matters relating to

labour relations,(ii) A person who is a member of a medical, dental, architectural,

engineering or legal profession qualified to practice under the laws ofAlberta and is employed in his professional capacity.

(Note: This is an exhaustive definition. Common law definitions do not apply.) l(m) "employer" means a person who customarily or actually employs an employee.

l(aa) "wages" includes any salary, pay, overtime pay and other remuneration for work or services however computed or paid but does not include tips or other gratuities.

Who is an Employee?The meaning of "employee" according to the predecessor of the Code was discussed in the Yellow Cab Case below.

Re: Yellow Cab Ltd. and Board of Industrial Relations et al. [19801 S.C.C. Facts: A complaint was brought before the Board of Industrial Relations alleging that Yellow Cab engaged in unfair labour practices in contravention of the Alberta Labour Act (the predecessor of the Alberta Labour Relations Code). Specifically, Yellow Cab was alleged to have violated the sections of the Act prohibiting an employer from interfering with the formation of a union and attempting to compel a person from being a member of a trade union. Yellow Cab argued that the Board had no power to deal with the complaint since there was no employer-employee relationship between the parties. Issue: Could the complainants be categorized as employees?Analysis: The Act states that "employee means a person employed by an employer to do work or provide services of any nature who is in receipt of or entitled to wages." Wages includes any salary, pay, overtime pay and any other remuneration for work or services however computed, but does not include tips or other gratuities. The complainant drivers were lessors of the company's vehicles for which they paid a fixed rental. At no point did the company pay wages to the complainants. Therefore, the Court found that no employer-employee relationship existed.Held: No employer-employee relationship existed therefore, the provisions did not apply. Question: Would Yellow Cab be decided differently today because of changes to:

(i) administrative law: privitive clauses (the LRB said that they were employees but the court said no - with privitive clauses more deference is given to the LRB)

(ii) the definition of wages - changed to include such payments as when the customer pays the employee directly (i.e. cab drivers)

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United Association of Plumbers v. Midwest Pipeline [19891 Alberta Labour Relations BoardFacts: A union was seeking certification for the pipefitting employees of MidwestPipeline. Rig workers fall into three different categories: © employees operatingemployer's equipment, © rig welders owning their own equipment and paid a wageseparate from rental for the equipment, (D rig welders owning their own equipment andpaid one sum for both the equipment and services performed. Rig welders oftenincorporate for tax purposes.Issue: Are rig workers, both incorporated and unincorporated, employees under theLabour Relations Code?Analysis: The Labour Relations Code provides the following definitions:(1) "employee" means a person employed to do work who is in receipt of or entitled towages..."(m) "employer" means a person who customarily or actually employs an employee;(aa) "wages" includes any salary, pay, overtime pay and any other remuneration for workor services however computed or paid but does not include tips or other gratuities.The Board was satisfied that by these definitions and using Lord Wright's four-fold testthat unincorporated rig welders are employees for the purposes of collective bargaining.As to whether or not an incorporated rig welder is an employee, the Board found that theonly real difference between an incorporated and an unincorporated rig welder is wageflow. For incorporated rig welders, the wages usually go to a corporation which in turnpays the proprietor. So long as the company employing the employee is paying wages orbears the ultimate burden of remuneration, the definition is met.Held: Rig works, whether incorporated or not, are employees.Note: This reasoning only applies to an incorporated sole proprietor who does the workhimself.This case included a 7-criteria test of the employer/employee relationship (from Adams)• employer exercises discretion and control over the employees performing the work• employer bears the burden of remuneration• employer imposes the discipline• employer hires the employees• employer has the authority to dismiss the employees• employer is perceived to be the employer by the employees• intention to create employer/employee relations

Exclusions from the CodeThere are a number of people who are employees but who are excluded from the Code. Code, s. 1(1 )(i)• Managerial employees

Professional employees• Crown employees• Police officers• Farm workers (Re: Dumore might change this)• Domestics• Employees under the jurisdiction of the federal government

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Who is the Employer?Difficulty sometime arises in as to which of two or more persons is the employer of a group of employees. Re: Kmart Canada Ltd. [1983]

ACQUISITION OF BARGAINING RIGHTS BY CERTIFICATIONA union seeking to organize a group of employees will usually launch a campaign to sign up as many employees as members as it can. Once the employees are signed up, the next step is to acquire the right to bargain for those employees with the employer. This can be accomplished in two ways:

(1) By the union becoming certified by the Labour Relations Board as the bargainingagent for some or all of the employees of the employer, or

(2) By the employer voluntarily recognizing the union as the bargaining agent of theemployees.

Overview of the Certification ProcessCertification is the process that lets employees choose trade union representatives after a Board-conducted secret ballot of the employees. Certification gives the union the right to require the employer to engage in good faith collective bargaining. The collective agreement achieved through bargaining covers all employees in the bargaining unit, whether they supported the union's application for certification or not. It is a majority rules system.

The Labour Relations Board supervises the certification process. Its duty is to:1. receive applications from trade unions,2. give the employer, employees and other affected persons notice of the application,3. conduct investigations and hold hearings to make sure the trade union applied at the

right time, with the necessary level of initial employee support, and according to theCode's requirements,

4. make sure the group of employees in question is a unit that is appropriate forcollective bargaining,

5. hold a secret ballot representation vote among the affected employees, and6. issue certificates for successful applications.

• There are four situations when time limits may apply to trade unions applying forcertification. These include the filing of constitutional documents, previousapplications, strikes & lockouts, and existing collective bargaining relationships.

• A trade union applying for certification must complete and file an "Application forCertification" form.

• An application for certification must include evidence of 40% support of the tradeunion by the employees. The Board accepts two types of proof of the 40% support(membership and petition evidence).

• The board examines each application to ensure that the bargaining unit applied for isappropriate for collective bargaining.

• Upon receipt of an application, the Director of Settlement appoints an Officer toinvestigate.

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• The Officer notifies the parties and commences an investigation.At the conclusion of the investigation, the Officer completes a report and gives it to the parties. The report includes: the legal name of the employer, the correct name of the applicant, a statement about whether the union has met the 40% support level, a list of employees in the unit, a recommendation about the appropriate bargaining unit, a recommendation about trade status, (where possible) recommendation concerning voting arrangements, and any necessary recommendation on persons who may be included in or excluded from the unit.A party may object to the report by giving written notice to the Board and the other parties. A full day's notice must be given prior to the hearing otherwise the Board may proceed without hearing the objection.

• At the hearing, the Board normally orders the vote once it is satisfied that the unionhas 40% support in the unit applied for.

• After the vote, the parties are advised of the results.• The Board may then issue a certificate.

BARGAINING UNIT DESCRIPTIONSThe Labour Relations Code allows a trade union to be certified for an "appropriate bargaining unit" of employees. An appropriate bargaining unit means a group of employees that it makes "labour relations sense" to group together for collective bargaining. There may be more than one way of describing an appropriate unit. The Board may certify any bargaining unit that is appropriate. It is not required to certify only the most appropriate unit. If the unit applied for is not appropriate, but a reasonably similar unit would be appropriate, the Board may amend the unit. The Board may then grant a vote, in the amended unit, on the strength of 40% support within the unit originally applied for. If no reasonably similar unit would be appropriate for collective bargaining, the Board will dismiss the application. Sections 32 and 33 deal with appropriate bargaining units.

The Board considers the following factors in deciding whether a unit is appropriate.None of these factors are determinative but are weighed along with other considerations.

Community of Interest: (Do the employees in the proposed unit have common interests, common workings skills and working conditions? Will they have conflicting goals in collective bargaining? This factor favours smaller bargaining units. The greater the community of interest between employees in the unit, the more likely it is that the Board will find the unit to be appropriate.

• Bargaining History: Is there a history of collective bargaining with the employer?The Board is more likely to approve a small bargaining unit where the employeralready operates with several units and several bargaining agents. The Board will notcertify a unit that "carves out" a small group of employees from an existing viablebargaining unit unless there are compelling labour relations reasons to do so.

• Nature of Employer's Organization: Where an employer operates in severallocations, the Board will consider the degree to which the operations are integrated orinterdependent. If employees are highly mobile between departments or locations ofthe employer, the Board is less likely to find a departmental or localized unitappropriate.

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• Viable Bargaining Structures: Larger bargaining units tend to promote moreeffective bargaining and representation by the trade union than small units. Thelarger the bargaining unit proposed, the more likely it is that the Board will find itappropriate, so long as the employees share a community of interest.

• Avoidance of Fragmentation: Multiple bargaining units within one employer'soperation are more difficult and costly for an employer to administer. They also tendto restrict the job mobility of employees. The Board may not find a bargaining unitappropriate if it would unduly fragment the employer's bargaining structure.

• Agreement of the Parties: If the trade union and employer agree that a proposed unitis appropriate, the Board may give the agreement some weight provided it is anappropriate unit.

Specific Board Policies• The Board usually includes full-time, part-time and casual employees in the same

"all-employee" unit. The Board will not normally certify separate units of full-timeand part-time employees.

• A unit of employees of an employer will be considered appropriate unless there is aninsufficient community of interest between the different parts of the unit.

• Some certification applications would leave only a few small portions of anemployer's workforce unorganized. In such cases, the Board may consider aproposed bargaining unit inappropriate if it would exclude these tag-end positions.

• In industrial operations, the Board will generally find both a "production" or "plant"unit and an "office and technical" unit to be appropriate. A unit including both plantand office and technical employees will not normally be appropriate unless theapplicant union can demonstrate substantial support within both the plant and theoffice portions of the unit.

• The Public Service Employee Relations Act stipulates that employees of the Crown inright of Alberta form a single bargaining unit.

Unit Considerations for Specific Industries• In the retail industry , a unit comprising employees at several locations within a

geographic area may be appropriate where a single location unit for an employer withseveral locations would not. However, if an employer's operations in a geographicarea have not been previously certified, a single location unit may be appropriate if itis otherwise a viable unit on its own.

• A bargaining unit may not be appropriate if it includes security Ruards with otheremployees. If the guards are employed to protect against the acts of fellowemployees, the Board will normally require that the guards be excluded from the unit.They may be certified as a separate unit

• The Code states there shall only be one firefighter bargaining unit for each employer.It is to consist of all officers and technicians assigned exclusively to fire protectionand fire prevention even though those duties may include ambulance and rescuefunctions. The standard firefighter bargaining unit description is "all firefighters."

• In education , most employers have two types of employees: teaching personnel andnon-teaching personnel. Usually, the Board finds "all teachers" and "all employeesexcept teachers" as appropriate units. Guidance counsellors, librarians with teaching

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qualifications, and principals are all included in the category of teaching personnel. The School Act provides that there may only be one bargaining unit of teachers for each employer.

• The appropriate manufacturing unit is usually "all employees except office, clericaland sales personnel." This description includes all people involved in themanufacturing or productions process. Office and clerical refers to white-collarwork.

• In the mining industry , the appropriate bargaining unit is normally "all employeesexcept office and clerical personnel." Security personnel should be excluded if theyare in a conflict of interest position however, if they are simply watchmen then theymay be included.

Guidelines for Writing Bargaining Unit Descriptions• Omit statutory exclusions. Do not expressly exclude those persons automatically

excluded by the Code.• Use "all employees" followed by limitations.• Include restrictions based on the employer's operating divisions.• Include geographic limitations.• Name specific exceptions using common, generic terms.• When excluding other bargaining units, refer to the other certificate and do not

include the other union name or unit description.• Presume province wide units. Units without geographic restrictions are province

wide. The only exceptions are construction and maintenance units which are for theunion's territorial scope. All geographic restrictions are expressed.

• Presume all employee types (full-time, part-time and casual) unless there is anexpressed exception.

• Use generic job types, not specific titles.• Use function not qualification based descriptions.• Use gender neutral terms wherever possible.• Use standard descriptions and terms.

Bargaining Units for Hospitals, Nursing Homes and Community Health• The Labour Relations Board maintains standard bargaining units for employees of

hospitals, nursing homes, and community health. These units do not apply to thebroader health care industry.

• Any union applying for certification for these employers should apply for thestandard bargaining unit.

• For hospitals and nursing homes, the Board has identified five standard units: directnursing, paramedical professional, paramedical technical, auxiliary nursing, andgeneral support services. For community health, there are three standard units:nursing, professional and support.

• When justified, the Board may vary the units somewhat. Historical factors, the sizeof the institution and the range of occupational classes used by an employer mayjustify a variation.

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• The basis of these unit descriptions is job function. The Board's assignment of anemployee to a bargaining unit will not depend upon ambiguous occupational titles.The Board will assess the person's actual function within the particular institution.

Hotel and Restaurant Employees International Union Local 47 and Mackenzie Catering (1984) Ltd. [19971 Alberta Labour Relations Board Facts: MacKenzie Catering operates 22 isolated, rural camps where it provides meals and housekeeping services to remote industries such as oilfield, construction and logging at their camps. The largest of its camps is the Solv-Ex camp which provides services to employees of Solv-Ex corporation. MacKenzie Catering employs a total of about 169 employees, 27 of which are assigned to the Solv-Ex camp. This matter involves an application for certification of a unit of employees identified as "all employees at the Solv-Ex site". The employer objects to the appropriateness of the bargaining unit. Issue: Is the described unit an appropriate bargaining unit? Analysis:• The Union gave evidence that it had not attempted to organize any of the other

McKenzie Catering camps and would not do so because most of them were small,three-person camps that were difficult to find, difficult to access and the employeeswere very transient.

• While the Board has a preference for larger rather than smaller bargaining units, itmust assess each application. Where it makes sense to do so in the circumstances, theBoard will find a smaller unit appropriate, for example, where employees mayotherwise be denied access to collective bargaining.

• The employees of the Solv-Ex camp shared a community of interest which eachother.

• There was no evidence that the employees knew of the existence or location of theother camps.

• There was no convincing evidence that the Solv-Ex camp was integrated with theother camps such that it became inappropriate for collective bargaining.

• The unit was large enough to be a viable bargaining unit and unique enough to be aunit distinct from other camps. The unit was easily described and its boundaries wereclearly defined. It did not create a tag-end of employees who may not be able toobtain bargaining rights on their own.

Held: The unit was found to be appropriate and a vote was directed.

CertificationUnder the Code, majority support is proven in two steps:© The application for certification must be accompanied by evidence that at least 40% of the employees in the unit applied for have indicated their support for the trade union or have indicated in writing their selection of the trade union at the date of the application. © Before the application for certification is granted, the Labour Relations Board must satisfy itself that the employees in the unit the Board consists appropriate have voted to select the trade union as their bargaining agent. A representation vote is decided on the basis of a majority of the ballots cast by employees in the bargaining unit.

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31 An application for certification shall be supported by evidence in a form satisfactory to the Board, that

(a) at least 40% of the employees in the unit applied for, by(i) maintaining membership in good standing in the trade union, or(ii) applying for membership in the trade union and paying on their own behalf a

sum not less than $2 not longer than 90 days before the date the applicationfor certification was made, or both, have indicated

their support for the trade union, or(b) at least 40% of the employers in the unit applied for have, not longer than 90 days

before the date the application for certification was made, indicated in writingtheir selection of the trade union to be the bargaining agent on their behalf.

32(1) Before granting an application for certification the Board shall satisfy itself, after such investigations as it considers necessary, that

(a) the applicant is a trade union,(b) the application is timely,(c) the unit applied for, or a unit reasonably similar thereto, is an appropriate unit for

collective bargaining,(d) the employees in the unit the Board considers an appropriate unit for collective

bargaining have voted, at a representation vote conducted by the Board, to selectthe trade union as their bargaining agent.

56(1) A representation vote shall be decided on the basis of a majority of the ballots cast by employees in the bargaining unit.

Bars to Certification• Existing Certification, s. 35(2)(a-c)• Previously Lost or Withdrawn Application, s. 55

Existing Collective Agreement, ss. 35(2)(a)(d-e), 35(3)• Bargaining Rights Previously Revoked, s. 52(2)(c)• Strike or Lockout, s. 35(1 )(b)• Filing of Union Constitution, ss. 22, 35(l)(a)

Union Picketing, s. 36(2)

Effect of Certification38(1) When a trade union becomes a certified bargaining agent, it

(a) has exclusive authority to bargain collectively on behalf of the employees in theunit for which it is certified and to bind them by a collective agreement, and

(b) immediately replaces any other bargaining agent for employees in the unit forwhich it is certified.

ACQUISITION OF BARGAINING RIGHTS BY VOLUNTARY RECOGNITIONBefore the certification process was created by legislation, the only way that a union could obtain bargaining rights for employees was by obtaining voluntary recognition by the employer. Even after the passage of labour relations statutes, many unions are

O/l

voluntarily recognized today instead of going through certification. Voluntary recognition has some similarities to and differences from certification.• Where there has been no previous relationship between an employer and a union, the

employer approached by the uncertified union which wishes to bargain for itsemployees has no obligation to bargain or to conclude an agreement with the union.

• Once an employer concludes a collective agreement with an uncertified union andrecognizes the union as a bargaining agent for some or all of its employees, theemployer does have a duty to bargain collectively as to future collective agreements.However, the employer can terminate its obligation to bargain collectively by serviceof a notice at least 6 months prior to the expiry date of the collective agreement.

• Under certification proceedings, it is the Board which determines the size of thebargaining unit and which employees are included. Under a voluntary recognition,the unit is limited by the consent of the employer.Section 38 does not apply to voluntary recognition. There is no provision to prevent the employer from striking different agreements with different individual employees or different unions.

MODIFICATION OF BARGAINING RIGHTS Board Reconsideration of its Decisions11(4) The Board has exclusive jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any matter before it and the action or decision of the Board thereon is final and conclusive for all purposes, but the Board may, at any time, whether or not an application has commerrced under section 18(2), reconsider any decision, order, directive, declaration or ruling made by it and vary, revoke or affirm the decision, order, directive, declaration or ruling.

43 The Board may, on the application of any trade union or employer affected, modify the description of a bargaining unit contained in any certificate if it is satisfied that

(a) the former certificate no longer appropriately describes the circumstances ofcollective bargaining between the parties.

(b) The modification is not such as may call into question the union's majoritysupport within the bargaining unit, and

(c) It is otherwise appropriate to make the modification.Successor RightsAt common law, if a business is sold that had a union and a collective agreement in effect, the purchase of the business would not be bound to recognize the union or abide by the collective agreement based on the concept of privity. This concept has been modified by statute.

44(1) When a business or undertaking or part of it is sold, leased, transferred or merged with another business or undertaking or part of it, or otherwise disposed of so that the control, management or supervision of it passes to the purchaser, lessee, transferee or person acquiring it, that purchaser, lessee, transferee or person is, where there have been proceedings under this Act, bound by those proceedings and the proceedings shall continue as if no change had occurred, and

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(a) if a trade union is certified, the certification remains in effect and applies to thepurchaser, lessee, transferee or person acquiring the business or undertaking orpart of it, and

(b) if a collective agreement is in force, the collective agreement binds the purchaser,lessee, transferee or person acquiring the business or undertaking or part of it as ifthe collective agreement had been signed by him.

"Otherwise disposed of is broad thereby bringing most transfers within the definition. There are two ways the business can be sold:

1. share purchase: no successorship - you take everything including thecollective agreement

2. asset purchase: successorshipEither way, the collective agreement survives.

Successorship is automatic however after it occurs, questions need to be answered. For instance, after the employees are intermingled, is the bargaining unit still appropriate? The LRB will normally request a vote.

Never put your bargaining rights to a vote unless you absolutely have to.80/20 rule: all employees in the bargaining unit as is. Does this include proposed?If >80 - the collective agreement staysIf <20 - the collective agreement goes

UFCW Local 401 v. Hull's Foods Ltd. [19901 Alberta Labour Relations BoardFacts: Safeway sold two of its stores to Hull's Foods. The Union made an applicationpursuant to s. 44 of the Code.Issue: Does the certification of the union remain in effect and apply to Hull's Foods?Analysis:• No employees or management personnel of Canada Safeway Ltd. were hired by

Hull's Foods. All Safeway employees who so desired were transferred to other storelocations.

• Bargaining rights do not attach to specific employees as individuals. If rightsattached to individuals, it would be tantamount to an invitation to a purchaser of abusiness to discharge some or all of the former employees of the vendor.The sale of the stores did not involve a sale of goodwill, customer lists, or accounts receivable. However, the property was subleased and Hull's Foods purchased a substantial amount of inventory from Safeway. The skills of the employees of Hull's Foods are the same or similar to those of the Safeway employees and the services/products provided by Hull's Foods are similar to those provided by Safeway. The products and brand names changed but the business was otherwise essentially the same.

• Under the provisions of s. 44, Safeway sold its stores to Hull's Foods therefore, thecertification of the union remains in effect and applies to Hull's Foods.

Held: Certification in effect.

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Possible Exam Question: At the Safeway store, the Deli Department's meat slicers and store management have a CA negotiated by the union. The store has recently made an arrangement to have Sam's deli handle all the deli operations. How would the two arrange this deal so that Sam's would not be the successor to the CA? Answer: You would state in the agreement that this was NOT a sale or undertaking of the business and that the store was simply contracting out to Sam's deli.

Aiax (Town) v. C.A.W. Local 222 [20001 Supreme Court of CanadaAppeal by the Town of Ajax from a Court of Appeal decision that it was a successor employer. The Town entered into a contract with a transportation company regarding the operation of the Town's municipal transit system. The Town owned and supplied virtually all tangible assets used to operate the system. The union was the certified bargaining agent for the company's bus drivers, mechanics and cleaners. The Town terminated its contract with the company and commenced the operation of its own transit system. The company laid off all of the drivers, mechanics and cleaners, and the Town hired a substantial number of them. The Ontario Labour Relations Board concluded that a sale of a business to a successor employer, within the meaning of section 64 of the Ontario Labour Relations Act (equivalent of section 44), had occurred. The Divisional Court quashed the Board's decision on the ground that it was patently unreasonable. The Court of Appeal allowed the union's appeal.Held: Appeal dismissed. The function of the reviewing court was not to test the correctness of the Board's decision, but rather to decide whether the decision was patently unreasonable. It was not patently unreasonable for the Board to find a nexus between the company and the Town, as required for successorship. The historical and functional connection between the company and the Town constituted evidence on which the Board would rationally have based its conclusion on successorship. (This is a good case which illustrates contracting out.)

Sept-Iles (City) v. Quebec (Labour Court) [20011 Supreme Court of Canada Facts: The appellant city contracted out garbage collection in certain districts of the city to subcontractors. In accordance with article 15 of the collective agreement between the city and the respondent union representing the city's salaried manual labourers, no unionized employees were laid off, had wages cut or lost benefits as a result of the contracts with the subcontractors. The union filed motions under s. 45 of the Quebec Labour Code with the labour commissioner general, seeking to have the transfer of the certification and the collective agreement to the subcontractors recorded. According to the evidence adduced, the subcontractors used their own staff and their own equipment, continued to exercise complete authority to manage their staff and were required to comply with the city's instructions regarding the proper performance of the contract. The city continued to be ultimately responsible for a number of aspects of the garbage collection service. In a decision affirmed by the Labour Court, the commissioner recorded the partial transfer of the city's rights and obligations to the subcontractors and held that they were bound by the certification and collective agreement. Issue: Does the Labour Court have the power to conclude that a union's certification and collective agreement may be transferred to a subcontractor of the employer? Was the decision of the court patently unreasonable?

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Analysis: The standard of review is patent unreasonableness.Section 45: The alienation or operation by another in whole or in part of an undertaking otherwise than by judicial sale shall not invalidate any certification granted under this code, any collective agreement or any proceeding for the securing of certification or for the making or carrying out of a collective agreement.

Section 45 of the Labour Code may apply to subcontracts where the transferee, in addition to performing functions similar to those performed by the transferor to which the certification originally applied, receives a right to operate part of the transferor's undertaking. Those principles are not patently unreasonable. It is up to the specialized decision-making authorities to weigh the applicable criteria in order to determine whether a transfer of the operation of an undertaking has occurred. Held: The approach taken by the Labour Court was a reasonable exercise of its specialized jurisdiction. Accordingly, the appeal was dismissed.

Spin-offs45(1) On the application of an employer or trade union affected, when, in the opinion of the Board, associated or related activities or businesses, undertakings or other activities are carried on under common control or direction by or through more than 1 corporation, partnership, person or association of persons, the Board may declare the corporations, partnerships, persons or associations or person to be 1 employer for the purposes of this Act.

45(2) If, in an application under subsection (1), the Board considers that activities or businesses, undertakings ur other activities are carried on by or through more than 1 corporation, partnership, person or association of persons in order to avoid a collective bargaining relationship, the Board shall make a declaration under subsection (1) with respect to those corporations, partnerships, persons or associations and the Board may grant such relief, by way of declaration or otherwise, as it considers appropriate, effective as of the date on which the application was made or any subsequent date.

45(3) This section does not apply with respect to employers engaged in the construction industry in respect or work in that industry. (Section 190 relates to construction common employer declarations.)

HCEU v. Danfield Security Services et al. H9961 Alberta L.R.B.R. Facts: In June of 1994, Danfield Security Services began providing security services at the Alberta Hospital. Those services had been previously performed by employees of the Hospital who were included in the general support staff bargaining unit. The Hospital and the Union were parties to a collective agreement. The Union's position was that the contracting-out arrangement between the Hospital and Danfield attracts the operation of one or both of the "successorship" or "common employer" provisions of the Code. It sought to bind Danfield to the Hospital's certification and collective agreement. Issue: Successorship? Common Employer? Analysis:

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• Bargaining rights are not attached to work, but rather they attach to a business whichmust be transferred in order to trigger a successorship. The purpose of thesuccessorship provisions is to preserve bargaining rights in spite of changes in theownership and control of an enterprise.

• There must be some nexus between the two employers other than the fact that oneemployed persons to do certain work that the other now does or will do, before onecan be declared the successor of the other.The mere transfer of work away from bargaining unit employees as a result of contracting out has never been found to trigger a successorship.

• There was no disposition of the business, therefore the s. 44 application was notsuccessful.

• When considering whether an employer is a common employer, it is useful to viewthings as a spectrum. At one end of the spectrum are cases of the "labour contractor"variety, where the contractor is the employer of record but displays no otheremployer-like attributes in respect of its supposed employees. In extreme cases, theBoard may not find it necessary to make a common employer declaration in respectof the two entitles. Rather, it may find that the true and only employer is the principalrather than the contractor. At the other end of the spectrum are cases which involveoff-site contracting out where there is little or no interaction between the employeesof the principal and those of the contractor and the principal enjoys little if anycontrol over how the employees of the contractor carry out their jobs.

• Core function analysis is also helpful in determining if a common employer findingshould be made. That a function can be considered "core" may be an important partof the evidentiary foundation for such a finding, but it does not in and of itself makesuch a finding automatic.

• It is significant, though not determinative, that Danfield has a substantial history inthe security history, and that its contract with the Hospital is but one of many suchcontracts.

• The contract with Danfield gave Alberta Hospital considerable control over thesituation, from selecting employee uniforms to rejecting unsuitable securitypersonnel. Contractors who bring a workforce into a principal's workplace arecommonly subject to substantial restrictions on who those employees might be andhow they are to be dealt with. In a commercial sense, it is not surprising that that isso. Quality control has to be an important consideration in any successfulsubcontracting arrangement. These kinds of contractual limitations do not tend togive rise to "common control or direction" as that term is used in common employerprovisions.

• The common control or direction was not present.Held: Union's application dismissed.

47(1) When a trade union claims that, by reason of a merger or amalgamation or a transfer of jurisdiction of a trade union, it is the successor of a trade union that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent for a unit of employees of an employer, the Board in any proceedings before it or on the application of any person or trade union concerned may declare that the successor trade union has acquired the rights, privileges and duties under this Act of its predecessor.

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TERMINATION OF BARGAINING RIGHTS OBTAINED BY CERTIFICATION(Note: These provision do not apply to bargaining rights acquired by voluntary recognition.) Bargaining Rights are the rights obtained as a result of certification.• Revocation: An application to revoke bargaining rights may be made by a trade

union, the employees within the unit, or the employer (ss. 49-56)Termination by certification: ss. 30-38

• Termination because no employees in the unit for a period of 3 years: s. 51(l)(c)(ii)• Termination where the bargaining agent and employer have not bargained

collectively for 3 years: s. 50(5).Termination when the bargaining agent has abandoned its bargaining rights:

• Termination by modification of the bargaining unit description: s. 43• Termination as a result of successor rights or spinoff orders: ss. 44(2), 45(2)

COLLECTIVE BARGAINING58(1) When a notice to commence collective bargaining has been served under this Division, the bargaining agent and the employer or employers' organization, not more than 30 days after notice is served, shall

(a) meet and commence or cause authorized representatives to meet and commence,to bargain collectively in good faith, and

(b) make every reasonable effort to enter into a collective agreement.

Duty to Bargain in Good Faith• There is a duty to bargain in good faith and reasonably, but there is no duty to agree.

The following will create a breach of the duty:failure to meet at allsurface bargainingunfair labour practicesdeliberately tabling inflammatory proposalssudden change in position, introducing new demands, bargaining to areceding horizonrefusal to execute an agreement (negotiate, agree, then not sign)failure to disclose bargaining datamisrepresentationfailure to disclose solicited informationfailure to disclose unsolicited information (key decisions affecting asignificant number of bargaining unit employees)parties not prepared to justify their positionsfailure to produce bargaining agents with real access to principal party andauthorityconduct away from the table can result in a breach (bargaining directlywith employees)

The following things CANNOT be bargained to impasse: narrowing a certificate extending bargaining

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-objecting to the make-up of a bargaining committee-recording the proceedings.

Only those things that are terms and conditions of employment can be bargained to an impasse.

McMurray Independent Oil Workers v. Suncor [19801 A.L.R.B. Facts: The Oil Workers Union insisted that the collective bargaining process be transcribed and that tape recordings or other means be used. Suncor did not wish the proceedings to be recorded and refused to continue bargaining until such devices were removed. The Union refused to proceed unless the process was transcribed. Issue: Was there a failure to make every reasonable effort to enter into a collective agreement?Analysis: Upon notice to commence collective bargaining, the Code imposes a duty on an employer and a trade union to bargain collectively in good faith and also to make every reasonable effort to enter into a collective agreement. The compulsion is respect to, and only with respect to, the terms and conditions of the employment of the employer's employees . The union insisted that the collective bargaining process be transcribed, and insisted upon this to the point of impasse. They would not continue the bargaining meeting unless there was transcription. Transcription is not a subject matter that could possibly fall within the ambit of the phrase "terms and conditions of employment." Therefore, the trade union could not compel in collective bargaining that the process itself be transcribed. All that it could mandatorily insist upon is the negotiation of "terms and conditions of employment." The Board found that insisting upon transcription to the point of impasse was an unreasonable act and did not constitute a reasonable effort on the part of the Union to enter into a collective agreement. Held: The Board directed that the Union cease insisting that the collective bargaining proceedings be recorded and transcribed without the concurrence of Suncor.

U.F.C.W. Local 280-P v. Gainers [19861 Alberta Labour Relations BoardFacts: The Union and the employer began bargaining. The Union struck and theemployer locked out. Days after the strike and lockout had commenced, the employer,without notice to the Union, applied to the Superintendent of Pensions to wind up thepension plan that the employees had been participating it. The Union complained of afailure to bargain in good faith because the company refused to produce the details of thepension plan and relevant documents when requested and failed to inform the Union ofthe proposed windup.Issue: Bargaining in good faith?Analysis:• The duty to bargain in good faith includes the obligation to disclose pertinent

information requested by a trade union. A party commits an unfair labour practice if it withholds information relevant to collective bargaining without reasonable grounds.

• A second requirement is the duty to avoid misrepresentation.• Employers also have an affirmative duty, in circumstances where a decision has been

made that will have a significant impact on the employees affected, to disclose thatdecision to the Union in negotiations. Failure to disclose in these situations would betantamount to a misrepresentation and would involve bad faith.

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The employer in this matter did not want the Union to know the steps it was taking to terminate the pension plan. It refused to consent to the Superintendent of Pensions giving any information on the topic to the Union.The Union specifically requested information about the pension plan. However, even if it had not done so, the employer was still required to disclose its plans. The decision to terminate the plan was one of sufficient importance to fall within the category for which disclosure is required and the decision passed from being a matter of consideration to being a final decision.

• The employer argued that it is unrealistic to require employers to bargain with theirunions about corporate decisions made in the belief, held in good faith and onreasonable grounds by the employer that employees will not be adversely affected.The Board disagreed. The pension issue was not one falling within the sole discretionof the employer. It was an issue over which the parties had bargained for many years.Also, it was unreasonable to think that the employees would not be adversely affectedby the decision.

Held: The duty to bargain in good faith was breached.

Consolidated-Bathurst Defence to Non-DisclosureIn this case, the Ontario Labour Relations Board did not impose a duty of disclosure on an employer that was "seriously contemplating" a major decision. However, disclosure is necessary after a board of directors has given final approval on a decision affecting the employees of an organization. Further, there is an obligation to respond honestly to inquiries made by the union. However, contemplation of a change does not impose a positive duty of disclosure on employers unless the proposed change is a "de facto decision." That is, when the decision has passed the point of contemplation and board approval of the proposal is a mere formality.

G.C.I.U. v. Southam Inc. [20001 Alberta Labour Relations BoardFacts: Southam was bargaining collectively with two unions. One union argued that theemployer failed to bargain in good faith by refusing to agree to a practice (standardizedwages) that was an industry standard. The union also took issue with Southam'sstatement that several issues including wages were not open to collective bargaining.Further, the union contended that Southan purposely slowed the negotiations when itrealized that the two unions were cooperating with each other.Issue: Did the employer fail to bargain in good faith and make every reasonable effort toenter into a collective agreement with the union?Analysis:• The objectives of the duty to bargain in good faith are to compel recognition of the

trade union as a legitimate representative of employees, and to require full, honestand rational discussion of terms and conditions of employment with a view toreaching an agreement.

• While labour boards will not seek to advance their own views of what constitutes afair or reasonable settlement, they are adamant the process of collective bargainingmust respect the objectives of the statute: recognition of the trade union, full andrational discussion of the issues, and serious efforts to reach a collective agreement asthe end product of the process.

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• The Union argued that the employer is not permitted to bargain to the point ofimpasse a demand that certain items remain entirely outside the collective agreement.The Board disagreed and found that while all issues surrounding terms and conditionsmay be bargained, no issue must be bargained. It would be an unwarranted intrusioninto free collective bargaining to say that any particular item must be in the agreementand that it is bad-faith bargaining to resist such a proposal to the point of impasse.

• The union argued that the employer failed to make reasonable efforts to reach acollective agreement with the union. The Board agreed with this and found that theemployer purposely slowed the negations by its persistent failure to engage in timely,informative and rational discussions. The employer also failed to provide anyjustification for its rejection of the near-universal feature of standardized wages.

Held: The employer failed to make reasonable efforts to ^nter into a collective agreement.

• Parties have a duty to make solicited disclosure to each other of information that isnecessary to understand a position or formulate an intelligent response.

• An employer has a duty to make unsolicited disclosure of management decisions thatmay have a significant impact on terms and conditions of employment or on thebargaining unit itself

• Parties must not deliberately misrepresent material facts.• Parties may not refuse to meet before positions have been thoroughly explored, and

they must first meet through representatives who are equipped to engage in the full anrational discussion that the duty demands.

• One party may not attempt to dictate the bargaining representatives of another.• An employer may not engage in surface bargaining, in which an outer willingness to

observe the form of collective bargaining masks an intention to avoid entering into anagreement at all.

• Parties may not press to the point of impasse a demand that the other party has aconclusive right to resist.The duty to engage in rational discussion means that the parties must be willing to explore the issues brought to the table.The LRB must answer questions about whether the duty to bargain in good faith by looking at the totality of bargaining conduct including: (a recent history of unfair labour practices, the tabling of proposals that appear to lack any business justification or otherwise appear to be so unreasonable as to be tailor made for rejection, a refusal to grant a clause that is standard in the relevant industry, refusal to accept capitulation by the other side except upon additional onerous conditions)

IF BARGAINING FAILSMediation, code ss. 62-68Strikes and Lockouts, ss. 69-90Arbitration, ss. 91-102Disputes Inquiry Boards, ss. 103-109Disputes Resolution Tribunals, ss. 115-125

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MediationMediation must occur before there can be a legal strike or lockout.

Voluntary Interest Arbitration (s. 91-93)Parties entitled to strike/lockout may voluntarily submit to arbitration board to set theterms of agreement.This option is not used often. Both parties must agree to it.This is different from rights arbitration. Rights arbitration involves the interpretation ofentitlements under a collective agreement.

Compulsory Interest Arbitration (s. 94-102)This is the process used to settle collective bargaining disputes where employers/employees are not permitted to strike/lockout. This applies to firefighters, hospitals and their employees.

Disputes Inquiry BoardA DIB may be appointed by the minister responsible for labour relations.If a DIB is established before a lawful strike then no strike/lockout until 10 days after theDIB makes recommendations to parties or 72 hours after a vote on DIBBrecommendations ordered per s. 105A DIB has 20 days, or longer if the parties agree, to effect a deal.Unless the parties accept the DIB's recommendation, they must be put to a vote.

PROPOSAL VOTESIn three situations, the Labour Relations Code provides for a vote on a proposal to settle a collective agreement. These Board-conducted secret ballot votes are called proposal votes. The Code allows a proposal vote to be held on:• The recommendation of a mediator,• The recommendation of a Disputes Inquiry Board, or• A party's most recent collective bargaining offer.

A proposal vote must be held on any unaccepted recommendations of a disputes inquiry board. In such cases, no application is necessary. When holding a vote on a mediator's recommendation, the party that has accepted the recommendation may apply to the Board to conduct a vote of the persons represented by the other party. Each party during collective bargaining has one opportunity to ask the Board to conduct a vote on its most recent offer. This can only be done after proposals have been exchanged. Where a party applies for a vote on its last collective bargaining offer, the Board must be satisfied that the offer, if accepted, could form the basis of a collective agreement. In either case, the party requesting the vote must complete an application form available from the Board.

A completed application includes:a full completed application form,a copy of the proposal or recommendation to be voted ona copy of the most recent collective agreement between the parties, anda list of affected employers or employees.

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In all proposal votes, the Board will take steps to let the voters know the proposal being voted upon. This may include posting at the worksite or other suitable locations. It may include a mail out or similar mechanisms.

The Board uses the list of employers and employees supplied with the application as its preliminary voters list. The Board determines the eligibility to vote in proposal votes the same as representation votes.

STRIKE AND LOCKOUT VOTESThe Code requires that the Board supervise all strike or lockout votes. A Board-supervised vote is necessary before taking lawful strike or lockout action.

A party cannot take a strike or lockout vote unless:no collective agreement is in effect, or

- if a collective agreement is in force, it is in force under the bridgingprovisions of section 128, and

- the 14-day cooling-off period following the end of the mediation processhas expired, but less than 2 years has passed since that expiry.

A party seeking a supervised vote must complete an application form and include:- a completed Notice of Vote, as prescribed or approved by the Board,

an alphabetic list of voters, anda sample ballot as prescribed or approved by the Board

REGULATION OF STRIKES, LOCKOUTS AND PICKETINGThe Code prohibits strikes and lockouts unless:

no collective bargaining is in force, except under the bridging provisionsof section 128,the party held the appropriate vote and filed the results as required,the strike or lockout vote remains current,the party served proper notice to take the action,

- the action begins on the date in the notice, and- the recommendation of any disputes inquiry board appointed have been

released and voted on.

A party wishing to take strike or lockout action must apply to the Board for a supervised vote. Once the vote is complete, the party must file the results with the Board. The strike or lockout votes remain current for 120 days from the day of the vote. If no strike or lockout has begun with 120 days, the party must take a new vote if it wishes to take action.

Before starting strike or lockout action, a party must serve proper notice. The notice must specify the date, time and initial location at which the strike or lockout will commence. Written notice must be serviced at least 72 hours before the strike or lockout begins. A party intending to strike or lockout must also notify the mediator.

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Once a lawful strike or lockout is in progress, the Code allows a person to engage in picketing to try to persuade others not to enter the employer's place of business or to do business with the employer. The right to picket in connection with a labour dispute is subject to the following conditions:

it must be peaceful,it must take place only at the striking or locked-out employees' place ofemployment,it must not involve acts that are otherwise unlawful.

The Code restricts the means by which employees or either the affected employer or an outside employer may support striking or locked-out employees. An employee cannot refuse to load or take delivery of "struck" goods from a carrier unless the carrier itself is directly engaged in a lawful strike or lockout. These goods are often known as "hot cargo." Employees who are not involved in the strike or lockout may not refuse to do their work because the "struck" work is not being done by union members or is being done by someone else. An employee may not be disciplined for refusing to perform the work of another employee or legal strike.

When a legal strike or lockout ends, employees affected by the dispute may request a resumption of employment. Employees requesting resumption of employment are entitled to preference over any employees hired to replace them during the dispute. The right to resumption of employment does not apply to an employee who has been lawfully terminated during a dispute. Where a dispute ends but no collective agreement is in place, the returning employees are entitled to their former positions, on terms negotiated individually with the employer. Discriminating against employees because they exercise their rights under the Code is prohibited. The right to resumption does not apply where the employer permanently discontinues some or all of its operations, or no longer employs employees to do certain work.

A strike or lockout may be unlawful because the preconditions to a legal strike or lockout have not been met, or because a strike or lockout by the parties involved is unlawful under any circumstances. The Code prohibits engaging in an unlawful strike or lockout. It also prohibits calling, counselling, procuring or threatening an unlawful strike or lockout.When a breach of the Code pertaining to illegal strikes, lockouts or picketing is proven, the Board may issue a directive designed to correct the unlawful action. During the course of its proceeding, the Board may also issue interim directives. These directives are effective for a limited period of time, usually until a full hearing can be concluded. They are designed to give interim remedies in urgent situations.

The Board may direct what action, if any, the parties shall do or refrain from doing. These directives usually require any party found to be in contravention of the Code to cease those activities. A directive to cease an illegal strike or lockout or picketing is binding upon the party to whom it is^ddressed. It also applies to any further strike, nr nir.ketinp that occurs for the same or a substantially similar reason. A

directive may be filed wit the Court. Once filed, it is enforceable as a judgement or order of the Court and can therefore result in contempt of court proceedings for any violation.

Fire fighters and hospital employees may not strike nor may their employers lock them out.

Regulation of the Right to Strike Under the Labour Relations Code69 No employees, no bargaining agents and no person acting on their behalf shall strike or cause a strike or threaten to strike unless that strike is permitted by this Act.

71 An employee, bargaining agent or person acting on behalf of a bargaining agent is entitled to strike or cause a strike if

(a) no collective agreement is in force, other than as a result of section 128,(b) a strike vote was held under this Division,(c) strike notice is given in accordance with this Division,(d) the strike commences on the day and at the time and location specified in the

strike notice or, if an amendment to the strike notice is agreed to and is permittedunder this Division, on the day and a the time and locations specified in theamended strike notice, and

(e) in a case where a disputes inquiry board is established before the commencementof the strike, the time limits referred to in section 103(3) have expired.

Before a legal strike can occur, the following steps must be gone through:1. Collective bargaining has gone to impasse.2. The Party may request a one-time vote on the most recent offer (optional ss. 67-68).3. At least 14 days of mediation must take place (s. 63).4. A 14-day cooling off period must be observed after the mediator's report or vote (s.

63).5. Parties may continue to negotiate or may submit to voluntary interest arbitration

(optional ss. 91-93).6. If a Disputes Inquiry Board was appointed before the strike, no strike shall commence

until 10 days after the Minister serves the parties with the recommendations, or 72hours after a vote on the recommendations (optional ss. 103-109).

7. The trade union must apply to the Board to supervise a strike vote. The strike votemust be current, the results must be filed with the Board, and the majority of the votesmust be in favour of the strike. The union must apply for the strike vote at least 7days before the planned voting day and the strike must occur with 120 days of thevote. The strike vote must follow mediation and the cooling off period (ss. 73-75).

8. The union must give notice of the time, date and initial location of the strike. Noticemust be served at least 72 hours before the strike.

9. The strike must commence on the date and time specified in the notice, unlessamended (ss. 71, 78). If not, new notice must be given.

What is a Strike?1 (v) "strike" includes

(i) a cessation of work,

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(ii) a refusal to work, or(iii) a refusal to continue work,

by two or more employees acting in combination or in concert or in accordance with a common understanding for the purpose of compelling their employer or an employers' organization to agree to terms or conditions of employment or to aid other employees to compel their employer or an employers' organization to accept terms or conditions of employment.

McGavin Foods Limited v. Retail, Wholesale and Department Store Union [19881Alberta Labour Relations BoardFacts: The Employer, McGavins, alleged an illegal strike by the Driver-Salesmenbecause they refused to cross the picket line of the Bakery Workers. The collectiveagreement in place included the following provision: The company shall not require anyemployee who is a member of the union to cross a lawful picket line. Despite thisprovision, the employer argued that it was entitled to assign the employees work thatinvolved crossing the picket line.Issue: Did the refusal of the drivers not to cross the picket line constitute an illegalstrike?Analysis:• The definition of strike includes three elements: refused work, the element of

concerted action and the purposive element of intent.• Work means those activities or duties the employee would ordinarily expeci, and be

expected, to perform as a consequence of his or her being an employee. This mayinclude work called for in the contract of employment but may also include workdifferent from that called for in the contract of employment. The performance ofillegal activities or inherently unsafe activities would not constitute work.

• Refusal to cross a picket line by a group of employees does give rise to an inferenceof concerted action. An onus is placed upon employees once it is established thatthey have refused to work, to come forward with a credible and convincingexplanation for their conduct. Where such an explanation is not forthcoming or is notcredible in light of the circumstances, the Board will draw an inference the employeeshave acted in concert and therefore illegally.

• The definition of strike in Alberta also requires a subjective element or purpose. Areasonable inference of the necessary intent can be drawn from the circumstances.This results in an evidentiary burden of the explanation shifting to the Union oremployees. This inference of intent will not always arise. There may be facts whichsuggest other motives, such as personal safety. However, when a group of employeesrefuse to cross a picket line, the Board will generally infer that they did so in thebelief that their support for the picketing would put pressure on the employer in thedispute to settle with the striking employees.

• With regard to the contractual provision, the Board states that parties are not free tocontract out of the no-strike provisions of the Labour Relations Act. Clauses whichpermit employees to refuse to cross a legal picket line cannot make legal what isclearly illegal under the statute.An employee or Union claiming a contractual right to strike, or not to be scheduled for the work that is the subject of that strike, has an obligation to perform the

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scheduled work and to assert the contractual right through the arbitration process.The employee must "work now, grieve later."

Held: There was a concerted refusal of scheduled work and that work was to support those legally striking in their attempts to get their employer to agree to terms and conditions of employment.

What is a lockout?1 (p) "lockout" includes(i) the closing of a place of employment by an employer, (ii) the suspension of work by an employer, or (iii) a refusal by an employer to continue to employ employees, for the purpose of compelling his employees, or to aid another employer in compelling the employees of that employer, to accept terms or conditions of employment.

Union of Calgary Cooperative Employees v. Calgary Cooperative Association Ltd. F19931 Alta L.R.B.R. Facts: Calgary Cooperative Association and the Union had a collective agreement. The Vice President of Personnel approached the Union with its concerns that it could not continue to operate competitively unless it was able to substantially cut employee costs. It proposed a 20% cut in bargaining unit salaries. It published a notice to all employees that the cut in salaries was required for their continued employment. Issue: Did the employer make a threat of a lockout?Analysis: The common understanding of the motive component of a lockout appears to be for the purpose of obtaining for the employer terms and conditions of employment that the employer considers favourable. Calgary Cooperative threatened to reduce employees' hours of work and salaries. This constitutes a threat of suspension of work by an employer and a threatened refusal to continue to employ employees on the terms and conditions previously in effect. The employer made these threats with the intention influencing employees to accept the changes to the collective agreement. The Board found that this was a threat of a lockout.Held: Calgary Cooperative Associations was ordered to cease and desist threatening a lockout and to stop its actions of communicating with its employees contrary to the Code. Note: The employer did not breach the Code by seeking to change the collective agreement. It breached by failing to follow procedures for renegotiation.

There are two elements to a lockout:1. Objective Element (closing of place of work, suspension of work or

refusal to continue to employ).2. Subjective Element (purpose of compelling acceptance of terms and

conditions of employment)

PicketingPicketing is unlawful except in accord with section 82.In some circumstances, picketing can be restricted (section 89).

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Edinburgh Developers Ltd. and Cascade Builders v. Vanderlaan, Sentes andInternational Association of Heat and Frost Insulators 119741 Alberta SupremeCourt Facts: The employees in this matter picketed the premises of their employer. Theirintent was to persuade employees of other subcontractors to refuse to cross the picketline, thus inducing them to breach their contracts of employment with their employersand to bring business operations to a halt.Issue: Was the picketing lawful?Analysis: The Code allows picketing during a strike or lockout:82(1) Subject to subsection (2), during a strike or lockout that is permitted under this Actanyone may, at the striking or locked-out employees' place of employment and notelsewhere, in connection with any labour relations dispute or difference and without actsthat are otherwise unlawful, peacefully engage in picketing to persuade or endeavour topersuade anyone to

(a) enter the employer's place of business, operations or employment,(b) deal in or handle the products of the employer, or(c) do business with the employer.

At the time this decision was made, the predecessor to the Code was in force. A similar provision to 82(1) was in effect. The Court found that the purpose of the picket line in this case was not to obtain or impart information from or to anyone, but was to induce members of other Unions who were employed on the job to refuse to cross the picket line and enter their place of employment, thereby bring the operation to a halt. The picketing was unlawful as it was designed to and did induce breaches of contract. Held: Picketing unlawful.

United Food and Commercial Workers v. Kmart Canada [19991 Supreme Court of Canada Facts: The Union was certified to represent employees at the Campbell River and Port Alberni Kmart stores. Those stores are the "primary employer." The Union was not certified to represent employees in the Lower Mainland or Victoria stores. These stores are the "secondary sites." During a labour dispute with the primary employer, members of the union distributed leaflets at the secondary sites. The leaflets made it clear that they were seeking a consumer boycott of all Kmart stores. The distribution of the leaflets did not interfere with employees at the secondary sites nor was there any indication that it interfered with the delivery of supplies. The activity was carried out peacefully and it did not impede public access to the stores.Issue: Does legislation restricting the peaceful distribution of leaflets infringe s. 2(b) of the Charter? Can that legislation be justified pursuant to s. 1 of the Charter? Analysis: The B.C. Labour Relations Code defines picket or picketing to mean "attending at or near a person's place of business, operations or employment for the purpose of persuading or attempting to persuade anyone not to (i) enter that place of business, operations or employment, (ii) deal in or handle that person's products, or (iii) do business with that person. Distribution of leaflets would fall within the definition of picketing. The Code permitted union members to picket at the primary stores but not at the secondary sites. The purposes on the restrictions against picketing are to minimize the effects of labour disputes on persons who are not involved in the dispute, to promote

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conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions, and to ensure that the public interest is protected during labour disputes. The leafleting was conducted peacefully, the information contained in the leaflets was accurate, the manner in which they were distributed was not coercive, intimidating or otherwise unlawful. The activity did not impede access to or egress from the leafleted premises. The activity did not interfere with employees or suppliers of the secondary sites. If not for the labour legislation prohibiting these actions, the leafleting would normally constitute a valid, lawful exercise of freedom of expression. The Board therefore found that the definition of "picketing" was overbroad and catches more expressive conduct than was necessary to achieve the legislative objectives. Accordingly, the requirement of minimum impairment is not met. Held: The definition of picketing in the B.C. Code limits freedom of expression and this limit is not reasonable and demonstrably justified under s. 1 of the Charter. The definition of "picketing" was declared to be of no force of effect. (The declaration of invalidity was suspended for six months to allow the legislature sufficient time to make amendments.)Note: Alberta's section 82 restricts picketing, not the broader activity of persuasion. Picketing can and should be interpreted to exclude leafleting.

Section 1 Charter Analysis:1. Is there a legislative objective of sufficient importance to warrant overriding aconstitutionally protected right or freeuom? The government objective was characterizedas trying to minimize the impact of the harmful effects of picketing on neutral thirdparties and the public. This is a valid objective.2. Are the means chose to meet the objective reasonable and demonstrably justified in afree and democratic society? To meet this test, (I) there must be a rational connectionbetween the objective and the restriction, (2) the restriction must minimally impair theright and (3) the law must be proportionate (the law must not have disproportionatelynegative effects. The minimum impairment test failed.

Retail Wholesale Canada Local 285 v. Brewers Distributors Ltd. and MTE LogistixEdmonton Inc. [20001 Alberta Labour Relations Board Facts: Brewers Distributors Ltd (BDL) was in a collective bargaining dispute with theUnion. In preparation for a work stoppage, BDL contracted with MTE to providewarehouse space and services to distribute beer to BDL's customers. MTE stockpiledbeer of BDL. Shortly thereafter, BDL locked out its employees and MTE beganperforming the bulk of the distribution work that had been done by BDL. In response tothe lockout, employees at BDL's New Westminster warehouse refused to ship product tothe MTE warehouse, relying on a "hot cargo" clause of their collective agreementallowing them to refuse to handle goods for delivery to "any establishment at which astrike or lockout is in progress." Members of the union also began picketing MTE'swarehouse.Issue: Does section 82 of the Labour Relations Code permit picketing of the premises ofan off-site "ally" employer during a labour relations dispute?Analysis:

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The object of picketing may be the employer directly involved in the dispute ("primary picketing") or a party not directly involved in the dispute ("secondary picketing.") Secondary picketing may be directed at the premises of suppliers, carriers, subcontractors or customers of the primary employer.

• Section 82 restricts picketing to the employees' place of employment. The purpose ofthis provision was the Alberta legislature's attempt to prohibit secondary picketing.

• The "Ally" Doctrine is aimed at the phenomenon of employers who intentionally andmaterially assist a struck employer in resisting a strike or prosecuting a lock-out of itsemployees. The ally doctrine identifies employers who are not neutral orunconcerned in the primary labour dispute, but have consciously inserted themselvesinto the dispute as an adjunct to the employer's economic strength. The doctrineallows picketing of such allies on the basis that it is not true secondary picketing, butpicketing of an employer that is an integral part of the primary dispute.

• The Board found that MTE stood in a relationship with BDP that could becategorized as an "ally" or "alter ego" relationship. MTE voluntarily and withknowledge of the impending labour dispute between BDL and the Union, assumed animportant role in the performance of BDL's regular business and effectivelystrengthened BDL in its dispute with the Union.

• Section 82 allows picketing at "striking or locked out employees' place ofemployment." This includes

> Places where striking or locked out employees worked either normally orwith some regularity before the dispute, provided the employer stilloperates there during the dispute,

> For mobile employees without a regular work place, the place where theywere performing work at the outset of the dispute,

> The place where an employee would return to work if s/he resumed workduring the course of the dispute, and

> The place where an employee would reasonably^expect to return to workat the end of the dispute.

• The MTE warehouse is not the "striking "or locked out employees' place ofemployment" within the meaning of s. 82(1). Accordingly, s. 82(4) prohibitspicketing there.Section 82 of the Code restricts freedom of expression.

• The pressing and substantial objective of the geographical restriction of s. 82 (placeof employment) is to prevent avoidable economic damage to neutral third partiesfrom picketing activity. True neutrals, innocent bystanders to the economic contestbetween employer and employees, should sustain as little damage as possible from adispute that they have had no hand in creating, the result of which they are generallyindifferent to, arid that they have no ability to resolve. However, the Board could seeno valid purpose for completely insulating a party that voluntarily participates in thedispute and who is in a position to influence the outcome from the economic damageof a labour dispute.

Held: To the extent that s. 82 prohibits picketing of "ally" or "alter ego" employers in labour disputes, it infringes s. 2(b) of the Charter. To the extent that it is inconsistent with the Charter, s. 82 is of no force an effect. Picketing of the MTE warehouse is permitted.

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THE COLLECTIVE AGREEMENTss. 126-1311 (f) "collective agreement" means an agreement in writing between an employer or an employers' organization and a bargaining agent containing terms and conditions of employment, and may include 1 or more documents containing 1 or more agreements.

There is relatively little legislative control over the contents of a collective agreement, and the parties are generally free to negotiate such terms and conditions as they please.

Before a collective agreement is negotiated for the first time between the union and employer, the legal situation is that the employer is a party to a series of individual employment contracts with all of its employees.

At common law, a collective agreement had no legal status as a contract which could be sued upon. The remedy for a breach of a collective agreement was not a lawsuit but a strike. As a result of the lack of legal remedies, the process of arbitration to settle disputes arising out of collective agreements developed. Although the common law has been altered by legislation, arbitration still remains the primary vehicle for deciding disputes. The Labour Relations Code states that a collective agreement can be sued on by the union and the employer. The terms of the collective agreement are binding on the union, the company and on individual employees in the bargaining unit, whether members of the union or not.

Syndicat Catholique etc. v. Compagnie Paquet Ltee. [19591 Supreme Court ofCanada Facts: A provision in the collective agreement made between the Union and theEmployer stated that the employer shall withhold union dues from the wages of eachregular employee covered by the agreement and remit them to the union. Severalemployees declared that they did not wish to have union dues withheld from their wages.Issue: Were the employees free to refuse to remit the union dues?Analysis: The union, by virtue of its certification, is the representative of all employeesin the bargaining unit for the purpose of negotiating the labour agreement. There is noroom left for private negotiation between the employer and the employee. Thecompulsory deduction of union dues became a term of each individual employee'scontract of employment by virtue of the fact that they were given notice that in future thededuction would be made as a term of their employment. At that point, they could eitheraccept the new term or seek other employment. They made their election by continuingto work. It was not within the power of an individual employee to insist on retaining hisemployment on his own terms or on any terms other than those lawfully inserted into thecollective agreement.Held: Remission of union dues was a term of employment.

McGavin Toastmasters Ltd. v. Ainscough et al. [1975] Supreme Court of Canada Facts: The employees of the company illegally went on strike. Four days after the strike commenced, the employer closed the plant and announced that it would not be reopened. The employees sought severance pay in accordance with their collective agreement.

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Issue: What effect did the illegal strike have on the employees' entitlement to severancepay?Analysis:• A provision of the collective agreement stated the following:

"In the event of amalgamation, closure of the plant or a department thereof, or reduction in the work force due to automation or technological advances causing a regular full-time employee to lose his/her employment, the Company hereby agrees to pay such an employee severance pay at his/her regular rate of pay according to the following schedule..."

• At issue was whether there was a repudiation by each employee of the contract ofemployment by reason of the unlawful strike, whether the concerted refusal to workterminated the employer-employee relationship, or whether the unlawful strikeconstituted a breach of a fundamental term of the contracts of employment of thestriking employees so as to disentitle them to the severance pay.Where a union has been certified for collective bargaining, there is no room left for private negotiations between employer and employee. To the extent of the matters covered by the collective agreement, freedom of contract between master and individual servant is abrogated.

• Questions such as repudiation and fundamental breach must be addressed to thecollective agreement if they are to have any subject matter at all. A collectiveagreement is not the sort of agreement that can be terminated by repudiation by oneparty merely because the other party has broken one of its terms.

• The employees were prohibited from striking and did so illegally. The employer-employee relationship was not terminated by the unlawful strike however it was opento the company to take disciplinary action against the employees for participating inthe strike. The company did not take any positive action against the strikers.The company's failure to act against the employees brought it within the severancepay obligations of the collective agreement.

Held: The collective agreement was still in force and the employees were entitled to severance pay.

ARBITRATIONss. 132- 144

AVOIDING DELAY IN ARBITRATIONThe Labour Relations Code gives the Labour Relations Board a role in ensuring expeditious arbitration. The Board also has the ability to establish guidelines for avoidance of delay in arbitration.

The Board's view is that arbitration is primarily the responsibility of the parties to the collective agreement. Parties are responsible for making their own grievance and arbitration process work in the context of their particular work environment. Any party to an arbitration can complain to the Board that the matter is being unduly delayed. Such a complaint can be made anytime after the case is submitted to arbitration, whether before or after any hearing. The Director of Settlement will review the application for completeness and obtain any additional information required. The Director may try to

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resolve the delay informally, or refer the matter to the Chair. The Chair will consult the parties informally and attempt to resolve the delay. If necessary, the Chair may require submissions or refer the matter to a hearing. If the matter is referred to a hearing, the Board will hear the complaint and issue any remedial order necessary. If undue delay is found, the Board has a general power to issue whatever directive the Board finds necessary.

THE DUTY OF FAIR REPRESENTATIONSection 151 imposes a duty of fair representationontrade unions. The €ode allows the Labour Relations Board to review the fairness of the union's conduct. It does not offer an appeal from the union's decision not to pursue a grievance. Nor does it give the Board the power to hear or rule on the employee's grievance itself. Employees who feel unfairly represented by their union under their collective agreement cannot bring court action. Instead, they can file a complaint with the Board. If the Board finds a breach of the duty, the nature of the complaint will influence any remedy given to the complainant.

Principled Features of the Duty of Fair Representation• The exclusive power conferred on a union to act as a spokesperson for the employees

in a bargaining unit entails a corresponding obligation on the union to fairly representall employees comprised in the unit.When the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

• The discretion must be exercised in good faith, objectively and honestly, after athorough study of the grievance and the case, taking into account the significance ofthe grievance and its consequences for the employee on the one hand and for theunion on the other.

• The union's decision must not be arbitrary, capricious, discriminatory or wrongful.• The representation by the union must be fair, genuine and not merely apparent,

undertaken with integrity and competence, without serious or major negligence, andwithout hostility towards the employee.

Employees' ResponsibilitiesEmployees have a responsibility to protect their interests. This includes filing the grievance, cooperating with the union, and mitigating their losses. If they do not, claims for breach of the duty of fair representation may not succeed. Employees with grievances to advance must first look to the procedure set out in the collective agreement. They must do what the collective agreement requires of them to launch the grievance properly. Section 151(2)(b) protects a trade union from financial liability to an employee for a loss that resulted from the employee's own conduct.

The Union's DutiesThe Union should consider the following factors when deciding to abandon or settle a grievance:• The union must avoid ill will.• The union must not discriminate.

• The union must not be arbitrary.• The union has a right to consider other factors.• Unions need not hire counsel if it has adequate internal resources.• The union has a duty to advise employees of hearings that may affect their positions.

Content of the Duty (Canadian Merchant Services Guild v. Gagnon, 1984 SCC)1. Exclusive bargaining power of unions creates the obligation to represent all

employees in the unit fairly.2. When the union has the right to take a grievance to arbitration, the union enjoys

considerable discretion.3. The union discretion must be exercised:

in good faith,objectively and honestly,after a thorough study of the grievance taking into account the significance

of the grievance AND the consequences for the employee and the union.4. The union decision must not be:

arbitrary, capricious, discriminatory, or wrongful.

5. The representation by the union must be:- fair,

genuine,not merely apparent,undertaken with integrity and competence, without serious or major negligence, and without hostility toward the employee.

Complaints and Remedies• The Director of Settlement reviews each complaint. If the allegations contained in

the complaint may amount to a breach of section 151 then the Director of Settlementaccepts the complaint and recommends a dispute resolution procedure. This mayinclude mediation or an officer's investigation.

• If an officer investigates, the Officer's report sets out the facts surrounding thecomplaint. The report is forward to the affected parties who may then object to thereport. If no objections are made, the Board may proceed without consideringobjections. If necessary, the Board schedules a hearing.

• The Code allows the Board to review the fairness of the union's conduct. It does notoffer an appeal of the union's decision on a grievance. Nor does it give the Board thepower to hear or rule on the employee's grievance itself.

• If the Board finds a breach of the duty, the nature of the complaint influences anyremedy given to the complainant.

• S. 151 (1) 90-day limitation.S. 151(3) grants the ability to extend time limits.

• Board has the ability to award costs - leading case on ability to award costs (Europeancheesecake Ltd.) Ability to award costs is not as discretionary and unlimited as the

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courts. It can only award costs where it finds misconduct. The board can assess costs through its own procedures.

• The remedies the Board can award included extending the time limits of thegrievance procedure, giving a declaration or awarding damages.

Gendron v. Supply and Services Union 119901 Supreme Court of Canada Facts: The employee in this case brought a grievance to his Union. The Union heard hisgrievance but dismissed it as having no merit. He then brought an action against theUnion for breach of the duty of fair representation before the Manitoba Court of Queen'sBench.Issue: Do ordinary courts under the Canada Labour Code have the jurisdiction toentertain a claim from an employee alleging a breach of the duty of fair representation byhis bargaining agent?Analysis:• The duty of fair representation is a common law right.• This right has been codified by various labour relations statutes including the Canada

Labour Code which states: "Where a trade union is the bargaining agent for abargaining unit, the trade union and every representative of the trade union shallrepresent, fairly and without discrimination, all employees in the bargaining unit."

• The statutory duty is identical to the duty at common law, therefore the common lawis not additive, but is duplicative.

• Where the statute applies, the common law duty is ousted.• Since the statute was applicable in this case, the employee could not base his claim on

the common law and had recourse to the statute only.• The Canada Labour Code sets out the responsibilities of the Canada Labour

Relations Board. While the Code does not provide that the board has exclusivejurisdiction, it contains a broad privative clause protecting the decision of the Board.

• The ordinary courts do not have jurisdiction over these matters, only the ability toreview the board decisions in the very limited parameters contemplated by theprivative clause.

Held: The Manitoba Court of Queen's Bench had no jurisdiction to hear the matter. The claim should have been litigated before the Canada Labour Relations Board.

Vickers v. Health Sciences Association of Alberta [19971 Alta. L.R.B.R.Facts: The University of Alberta transferred operation of the Provincial Laboratory to theUniversity of Alberta Hospitals (UAH). The parties agreed that employees with theProvincial Laboratory who accepted employment with the new employer would havetheir seniority recognized. After the issue of seniority was settled in the collectiveagreement, the Union realized that there was disparity in the method of calculatingseniority for the continuous employees of UAH and those who had been transferred fromthe University of Alberta. UAH, after consultation and agreement with the Union, sentletters to the transferred employees and indicated that their seniority would be based onthe same calculation as the continuous employees and therefore, the number of hours oftheir seniority would be reduced.Issue: Did the Union violate the duty of fair representation?Analysis:

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• The duty of fair representation arises only with respect to employee rights containedin the collective agreement. No such duty exists for matters arising from or out ofcollective bargaining.

• Collective bargaining means to negotiate or negotiation with a view to the conclusionof a collective agreement or the revision or renewal of a collective agreement.

• Collective bargaining, when used as a shield to protect against a duty of fair representation, must be viewed narrowly as opposed to broadly . The discussionsbetween the Union and the Employer to modify the seniority should not becategorized as collective bargaining. There was no possibility for employee input andthere was no democratic opportunity for members to express their wishes.

• The Union failed to consult with its members, failed to investigate how the decisionwould affect others, failed to consider other options, failed to disclose its actions tothose affected, failed to consider all relevant matters, and failed to perform aninvestigation of all the facts. The Union took one side's opinion over another withoutconcern for the other side's interest.

• While there was no evidence of bad faith, the Union violated its duty of fairrepresentation.

Held: Duty breached. The Union was ordered to cease and desist from breaching the complainants' right to be fairly represented and to take immediate steps to restore the complainants full seniority pursuant to the collective agreement. Note: Keep Weber in mind when reading this case.

CAN A DISPUTE ARISING OUT OF A COLLECTIVE AGREEMENT BE TAKEN DIRECTLY TO COURT, BYPASSING THE ARBRITRATION PROCESS?An arbitration award can be reviewed by the court. S. 143

St. Anne-Nackawic Pulp and Paper Co. Ltd. v. Canadian Paper Workers Union[19861 Supreme Court of Canada Facts: The employees in this matter commenced an illegal strike. After obtaining aninterim injunction against the striking union, the employer sued the union in tort fordamages caused by its illegal strike.Issue: Does the Court have the jurisdiction to hear the matter?Analysis:• There was a collective agreement operating at the time of the strike.• The collective agreement provided that there shall be no strikes so long as the

agreement continues to operate.• The New Brunswick Industrial Relations Act stipulates that every collective

agreement shall provide for the final and binding settlement by arbitration orotherwise for all differences between the parties to the agreement. Where thecollective agreement does not so provide, a comprehensive arbitration clause will bedeemed to be a provision of the agreement.

• If the courts were made available to the parties as an alternative forum, violencewould be done to a comprehensive statutory scheme designed to govern all aspects ofthe relationship of the parties in a labour setting. Arbitration, when adopted by theparties as was done here in the collective agreement, is an integral part of that

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scheme, and is clearly the forum preferred by the Legislature for resolution ofdisputes arising under collective agreements.

Held: The claim for damages must be advanced in the contractual forum of an arbitration board.

General Rule: The grievance and arbitration procedures provided for by the LRC and embodied in the legislative prescriptions in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement. Problem with this general rule: If there is no authority to grant injunctive relief pursuant to an action for damages, how can the courts retain the authority to grant injunctions restraining illegal strike activity? The court finesses this argument by stating the courts retain a limited residual power in the labour relations scheme to grant injunctions with respect to illegal strikes since in those cases the courts are enforcing the provisions of the LRC and not a collective agreement.

Weber v. Ontario Hydro f!991 Supreme Court of CanadaFacts: Weber was employed by Ontario Hydro. As a result of back problems, he took anextended leave of absence and was paid sick benefits stipulated by the collectiveagreement. Ontario Hydro suspected that Weber was abusing his sick-leave benefits andhired private investigators to look into the matter. The investigators used deception togain entry into Weber's home and as a result of the information they obtained, Weberwas suspended for abusing his benefits. Weber took the matter to his union and filed agrievance alleging that Ontario Hydro had violated the collective agreement by hiringinvestigators. Arbitration was commenced and was subsequently settled. Weber alsocommenced a court action based on tort (trespass, nuisance, deceit and invasion ofprivacy) and breach of his Charter rights (breach of ss. 7 and 8) and claimed damages forthe surveillance.Issue: To what extent does the mandatory arbitration clause in the collective agreementaffect the ability of an employee to bring an action through the courts?Analysis:• The Ontario Labour Relations Act includes a provision requiring every collective

agreement to provide for the final and binding settlement by arbitration of alldifferences between the parties arising from the interpretation, application, orviolation of the agreement.

• Mandatory arbitration clauses generally confer exclusive jurisdiction on labourtribunals to deal with all disputes arising from the collective agreement. This extendsto Charter remedies, provided that the legislature empowers the arbitrator to hear thedispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator issubject to the residual discretionary power of courts of inherent jurisdiction to grantremedies not possessed by the statutory tribunal. The arbitrator has been given by theAct the jurisdiction over the parties and the dispute and is further empowered by theAct to award the Charter remedies claimed (damages and a declaration).

• Ontario Hydro had the right to decide what benefits the employee would receive. Inthe course of making that decision, Ontario Hydro is alleged to have actedimproperly. This allegation falls within the phrase "all unfair treatment and anydispute arising out the content of the agreement."

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• Weber argued that jurisdiction over torts and Charter claims should not be conferredon arbitrators because they lack the expertise on the legal questions such claims raise.The answer to this concern is that arbitrators are subject to judicial review. Withinthe parameters of that review, their errors may be corrected by the courts.

Held: Action dismissed.

New Brunswich v. O'Learv (1995) SCC • Companion case to Webber• Employee was driving the employer's truck. He blew the tire. Instead of changing

the tire, the employee continued to drive the vehicle thereby destroying the wheel.The employer attempted to sue the employee in small claims. It was held that thiscould not be done since the parties agreed to settle their disputes by arbitration undera collective agreement.

3 different models for dealing with arbitration clauses intended to be binding:1. The concurrent model: Allows one to proceed either in the courts or via an

arbitrator. This model is rejected since the LRC creates an exclusiveregime and this model would defeat the legislative intent to create anexclusive regime.

2. Overlapping Jurisdiction Model: If the subject matter of a dispute raisesissues that go beyond the traditional labour law then the courts havejurisdiction. This model is rejected because it goes against thejurisprudence that states disputes should be defined according to the factsgiving rise to the wrong, not the legal characterization of the wrong. Thismodel would allow innovative pleaders to evade the prohibition by raisingimaginative causes of action.

3. Exclusive Jurisdiction Model: The preferred approach. If a dispute arisesout of the collective agreement, then the LRB and the arbitration processhave exclusive jurisdiction.

UNFAIR LABOUR PRACTICESCodess. 16-17, 145-153

Unfair labour practices are practices which interfere with the rights of employees, unions and employers.

Unfair Labour Practices by Employers• Interference with union (ss. 146-148)• Freeze provisions (s. 145)• Prosecution of breaches (ss. 156, 159)• Remedies (s. 16)

The onus is on the complainant to prove that the employer committed the offence. In Alberta, the Board may infer elements of the offence from the facts. Section 147 requires that the employer did the act with an anti-union animus. The Board may infer anti-union animus from the circumstances.

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Section 146 prohibits participating, interfering, and contributing. The Board will not infer that any interference whatsoever with the formation of the union is improper and instead will confine their examination to the legitimacy of the management action complained about.

• Interference includes intimidation, threats of plant closure, etc. Participation includesforemen assisting in revocation applications, companies paying for legal costs ofrevocation applications, etc.

• Employers will sometimes seek to manipulate pay or other terms of employment topersuade employees that they are better off without a union. This is prohibited duringsensitive periods (e.g. certification, collective bargaining).

I.B.E.W. v. Stuve Electric #1 [19891 Alta. L.R.B.R.Facts: The Union applied for certification for a unit of electricians employed by StuveElectric. Before the representation vote was conducted, the employer threatened that anyunionized employees would be terminated and encouraged them all to sign lettersopposing the certification process. The union lost the certification vote.Issue: Could the employer's conduct be categorized as an unfair labour practice?Analysis: Section 147 of the Code prohibits employers from compelling employees torefrain from becoming a trade union member by intimidation or threats of dismissal. TheBoard found that the employer's conduct breached this section.Held: The employer committed an unfair labour practice.

I.B.E.W. v. Stuve Electric #2 [19891 Alta. L.R.B.R.The Union in the case above requested that the Board direct certification. The Board could only do so if it found, in the absence of the employer's conduct, that the Union would likely have achieved majority support on the application for certification. The test was easily met in this case, since the Union started off by producing evidence of 52% employee support. Directed certification can only be granted subject to a vote according to s. 16(2) of the Code. The Union challenged the constitutionality of this section, stating that it is a violation of the section 15 equality provisions of the Charter. The Board found that a trade union, as a form of corporate entity, is unable to take advantage of section 15's provisions. The Board ordered as a remedy that the employer cease intimidating the employees to compel them to refrain from becoming union members. The Board further directed that a second vote be held.

CONTINUATION AND TERMINATION OF COLLECTIVE AGREEMENTS• Collective agreements usually set out the term of the agreement. If the agreement is

silent, s. 127 of the Code states that the term shall be one year.• Collective bargaining may commence before the collective agreement terminates.

FREEDOM OF ASSOCIATION AND THE CHARTERFreedom of association is very broad and applies to union association. The right to associate does not give the goals of association any special status. You do not gain any rights when you associate with a group. You cannot do anything as a group that you cannot do as an individual at common law.

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Does a prohibition on strike action by nurses infringe freedom of association? No, since there is no common law right to strike. Such a right can only be created by statute.

Reference RE: Public Service Employee Relations Act [19871 SCCThe Government of the Province of Alberta requested a reference for an advisory opinion as to whether prohibiting the right to strike of public service employees and imposing a specific form of compulsory interest arbitration had interfered with the freedom of association of the public service employees. The Court of Appeal held that freedom of association did not include protection for actions, i.e., strikes, of the association (see 85 DRS P49-091). The matter was appealed to the Supreme Court of Canada.

HELD: The appeal was dismissed. Freedom of association under the Charter meant freedom to engage collectively in those activities which are constitutionally protected for each individual. Freedom of association does not, however, vest independent rights in the group. The issue to be decided was whether a particular activity of an association in pursuit of its objects was to be constitutionally protected or left to be regulated by legislative policy. The right to bargain collectively and the right to strike as incidental to collective bargaining are modern rights created by legislatures, not fundamental freedoms and are not included in freedom of association. Prohibiting the right to strike did not violate the Charter as the Charter did not guarantee the right to strike. The provisions relating to the conduct of arbitration also did not violate the Charter as the Charter did not guarantee a specific form of dispute resolution.

PS AC v. Canada [19871 SCC The Public Service Alliance of Canada challenged the validity of the Public Sector Compensation Restraint Act. The Federal Court of Appeal held that the Act did not violate the Canadian Charter of Rights and Freedoms and was not inconsistent with the Canadian Bill of Rights (see 84 DRS P48-733). The Alliance appealed to the Supreme Court of Canada.

HELD (One dissenting in part; One dissenting): The appeal was dismissed. Freedom of association under the Charter meant the freedom to engage collectively in those activities which are constitutionally protected for each individual. Freedom of association does not include the objects of an association nor the means used to obtain those objects such as collective bargaining and the right to strike. With regard to the Bill of Rights, the legislation was passed with a view to dampening inflationary expectations. This was a legislative objective which qualified as a "valid federal objective."

RWDSU v. Saskatchewan [19871 SCC Following unsuccessful contract talks between the unions and the province's only major dairy businesses, the unions served strike notice. Before the rotating strikes could begin, the dairies served lock-out notices on the unions. The province responded by passing temporary back to work legislation which prohibited the employees from striking and the employers from locking out. The Court of Appeal held that freedom of association included the right to bargain collectively and its incidental right to strike and that while this right was subject to reasonable limits demonstrably justified, the government had

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failed to establish that the limits were justified (see 85 DRS P27-780). The matter was appealed to the Supreme Court of Canada.HELD (One diss.): The appeal was allowed. Freedom of association under the Charter meant the freedom to engage collectively in those activities which are constitutionally protected for each individual. Freedom of association does not include the objects of an association nor the means used to obtain those objects such as collective bargaining and the right to strike.

Professional Institute of the Public Service of Canada v. Northwest Territories [19901 SCC The appellant Institute was the bargaining agent for a number of nurses employed by the federal government in the Northwest Territories until the nurses became employees of the territorial government. As a result of their change of employment the nurses ceased to belong to the bargaining unit on behalf of which the Institute had been certified to bargain collectively and became eligible for membership in the respondent Association, which had been incorporated to bargain collectively on behalf of all non-excluded territorial employees. The Institute sought incorporation as required by s. 42(1 )(b) of the Public Service Act for the purposes of representing its former members. Under that section an employees' association must be incorporated by an Act if it is to bargain collectively on behalf of its members. The territorial government declined to enact the required legislation. The Institute applied to the territorial Supreme Court for a declaration that s. 42(1) of the Act was inconsistent with freedom of association guaranteed in s. 2(d) of the Canadian Charter of Rights and Freedoms. The trial judge found that s. 42(1) violated s. 2(d) of the Charter and was not a reasonable limit within the meaning of s. 1. The Court of Appeal allowed the respondent Commissioner's appeal.

HELD: (Wilson, Gonthier and Cory JJ. dissenting): The appeal should be dismissed. Section 42(l)(b) of the Public Service Act does not infringe s. 2(d) of the Charter. The absence in s. 42(1 )(b) of a set of objective conditions for the certification of a union is not a violation of freedom of association. While the statutory monopoly^created by^the section prevents a rival union from bargaining for its members, such legislative frustration of an association's objects is not a violation of s. 2(d) if the restriction is not aimed at and does not affect the establishment or existence of the association ~ unless the association's activity is another Charter-protected right or an activity that may lawfully be performed by an individual. The statutory monopoly has no effect on the existence of the Institute or the ability of any individual to be a member of it, and the activity of collective bargaining for working conditions is not constitutionally protected. Since the activity of bargaining is not itself constitutionally protected, neither is a legislative choice of the bargainer. Given that a government has no common law obligation to bargain at all and can suspend a statutory obligation to bargain altogether, there can be no constitutional impediment to its choosing to bargain with a particular employees' representative. Further, the requirement in s. 42(1 )(b) that a union be incorporated for it to bargain collectively does not constitute a violation of s. 2(d) of the Charter. The section does not prohibit the establishment of or membership in other unions, or prevent any such union from seeking incorporation under the Act. Nor does it require that an employees' association incorporated under the Act be constituted in a particular way or that it submit

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the scope of its objects, terms of membership or rules of internal governance to legislative control. The requirement of incorporation in s. 42(l)(b) is the means by which the territorial government has chosen to recognize the union or unions with which it will bargain collectively. A grant of collective bargaining rights must account for the associational rights of affected individuals, but this means nothing more than permitting rival associations to exist and vie for recognition.

Lavigne v. Ontario Public Service Employees Union 119911 S.C.C. Appeal from decision reversing decision holding that a mandatory check-off clause and sections 51, 52, and 53 of the Community Colleges Collective Bargaining Act was of no force and effect as being contrary to section 2(d) of the Canadian Charter of Rights and Freedoms and not justified under section 1. The Court of Appeal had found the union's use of the dues was a private activity by a private organization and beyond the reach of the Charter, and that there had been no infringement of the appellant's freedom of association.

HELD: Appeal dismissed. Though the Charter applied to compulsory dues, check-off did not infringe section 2(d). If a right not to associate existed, the requirement to pay dues which might later be used on matters a non-member did not support did not fall within it. The purpose of dues check-off had nothing to do with conveying intent to support all union activities, nor did payment prevent the appellant from expressing himself or associating with anyone. If there was a violation, it would be justified under section 1.

R. v. Advance Cutting & Coring Ltd. [2001] S.C.C. Appeal by the contractors and construction workers from the dismissal of their appeal from convictions on charges of hiring employees who did not have the required competency certificates, or with working in the industry without such certificates, contrary to section 119.1 of the Quebec Construction Act. The Act required the appellants to become members of one of a list of union groups in order to obtain the certificates. They argued that such obligation was unconstitutional because it breached their right not to associate, which they claimed was a component of the guarantee of freedom of association in section 2(d) of the Charter. The trial judge dismissed the constitutional argument, and found the appellants guilty as charged. The Superior Court affirmed that judgment and the Court of Appeal dismissed the appellants' motion for leave to appeal.

HELD: Appeal dismissed. The impugned legislation was constitutional. However, five of nine judges found that the legislation infringed the implied negative right not to associate. Of those, four found that the infringement was not justified under section 1 of the Charter. The fifth found that it was justified. Three judges found that the negative right not to associate was not infringed, reasoning that some forms of compelled association in the workplace were compatible with Charter values. They held that the legislation did not establish a form of ideological conformity or threaten a liberty interest protected by the Charter, which was necessary in order to claim infringement of the right not to associate under section 2(d) of the Charter. They further held that even if the

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legislation had infringed the right not to associate, it would still have been justified under section 1. Furthermore, as the management of labour relations required expertise largely beyond that of the courts, it was best left to the political process. One judge found that section 2(d) of the Charter only included the positive freedom to associate. Accordingly, there was no breach of a right not to associate and it was unnecessary to address the section 1 argument.

Dunmore v. Ontario (Attorney General) [20011 S.C.C. Appeal by a group of agricultural workers from a judgment upholding Ontario's Labour Relations Act. In 1994, the Ontario legislature enacted the Agricultural Labour Relations Act (ALRA), which extended trade union and collective bargaining rights to agricultural workers. In 1995, the legislature repealed this Act, thereby excluding agricultural workers from the rights provided by the Labour Relations Act (LRA). The appellant agricultural workers brought an application challenging the repeal of the ALRA and their exclusion from the LRA, arguing that this infringed their freedom of association provided by section 2(d) of the Charter. The Ontario Court (General Division) and the Ontario Court of Appeal both upheld the impugned legislation.

HELD: Appeal allowed. The impugned legislation was unconstitutional. The LRA was clearly designed to safeguard the exercise of the freedom to associate rather than to provide a limited statutory entitlement to certain classes of citizens. The workers met the evidentiary burden of showing that they were substantially incapable of exercising their fundamental freedom to organize without the LRA's protective regime. The wholesale exclusion of agricultural workers did not minimally impair their freedom of association. The exclusion was overly broad in that it denied the right of association to every sector of agriculture without distinction. Therefore, the total exclusion of agricultural workers from Ontario's labour relations regime was not justifiable under section 1 of the Charter.Note: Dunmore case illustrates how fragile bargaining rights are in the collective bargaining process.

Alberta v. Retail Wholesale Canada, Local 285 [20011 Alberta Court of Queen's Bench The Alberta Labour Relations Board ("the Board") made no error in concluding that s. 82(1) ("s. 82(1)") of the Labour Relations Code ("the Code") is of no force and effect to prohibit picketing at locations operated by third party employers to whom all work previously performed by the picketing employees had been contracted. The application of s. 82(1) must be so limited to protect the right of freedom of expression of the picketing employees pursuant to s. 2(b) of the Canadian Charter of Rights and Freedoms ("the Charter"). Even assuming that the pressing and substantial objective of the statutory prohibition against secondary picketing includes limiting the economic harm which results from picketing suffered by the employer engaged in a labour dispute, that objective is not met by a prohibition which, in the circumstances, completely insulates that employer from the economic effects of picketing by denying its employees any location at which they might effectively picket. Any interpretation of s. 82(1) which would extend protection from picketing to this type of allied employer is not saved by s.

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1 of the Charter as it is does not amount to a minimal impairment of the rights of picketing employees to freedom of expression.

R.W.D.S.U. v. Pepsi-Cola Canada Beverages (West) Ltd. [20021 Supreme Court of CanadaAppeal by Pepsi-Cola Canada from a decision quashing an interlocutory injunction which prohibited secondary picketing. The Union engaged in protest and picketing activities during a lawful strike and lockout at one of Pepsi's plants. These activities spread to secondary locations such as retail outlets and the hotel where substitute labourers were staying. Union members also engaged in intimidating conduct outside the homes of Pepsi's management personnel. Pepsi obtained an interlocutory injunction prohibiting picketing activities at secondary locations. The Saskatchewan Court of Appeal upheld the order against congregating at the residences of Pepsi employees but quashed the restraint of peaceful picketing at other secondary locations.

HELD: Appeal dismissed. Secondary picketing was lawful unless it involved tortious or criminal conduct. The wrongful action model balanced the various interests at stake in manner consistent with the fundamental values in the Charter. This rule offered sufficient protection from undue harm for neutral third parties when weighed against the value of free expression which was engaged by primary and secondary picketing.

Legal Status of UnionsUnited Nurses of Alberta F19961 Alta. L.R.B.R. Appeal from an order holding the appellant union to be in criminal contempt and imposing a fine. The appellant went on strike contrary to directives made under the Labour Relations Act and filed with the court. The court had to determine whether a union could be found in criminal contempt, whether the offence of criminal contempt violated the Charter, whether the directive of a provincial board gave rise to criminal contempt and whether the appellant's Charter rights were violated as a result of a refusal to permit the appellant to cross-examine on the Crown's affidavits.

HELD (dissent): Appeal dismissed. Unions could be found in criminal contempt. Criminal contempt arose in circumstances where the accused knew, intended or was reckless as to the fact that the act of defiance would publicly bring the court into contempt. The court held that an accused could predict in advance whether or not the conduct would constitute a crime. The offence of criminal contempt did thus not violate the Charter.Section 142(7) of the Alberta Labour Relations Act could give rise to criminal contempt. The word "enforceable" was not restricted to the civil contempt power and could embrace the criminal contempt power. Section 142(7) provided that a directive filed with the court was to be enforced as if it were an order of the court. A directive could, therefore, give rise to criminal contempt. The court held that even if the appellant's right to cross-examine on the affidavits had been wrongly curtailed, there was no miscarriage of justice.