Law Notes

C18A - Employment Law

9 min read

C18A - Employment Law

Employer and Employee Contracts

  • employment law: branch of civil law that governs employer-employee relationships
  • Roles in Common Law
    • employer must…
      • pay agreed upon salary
      • provide safe workspace
      • give reasonable notice of an intention to terminate the contract of employment
      • honour terms of contract
      • assign legal work
      • etc.
    • employee must
      • be punctual and taking only permitted leaves of absence
      • obeying legal and reasonable orders
      • being loyal, honest, and competent

Employee Protection

  • Employment Standards Act (ESA)
    • min. standards for wages
    • vacation pay
    • statutory holidays
    • overtime
    • termination
    • severance pay
    • etc.
    • certain jobs exempt like students in training, police officers, and interns
    • young ppl. <16 cannot be employed during school hours
    • Alb: exemptions exist for young workers who work on farms / ranches
  • employees under federal agencies, banks or Crown corporations covered by Canada Labour Code

Workplace Safety Standards

  • Employers obligated to provide employees w/ certain types of training such as
    • Workplace Hazardous Materials Information System (WHMIS)
  • Occupational Health and Safety Act
    • min. workplace safety standards
    • ensures that workers who refuse unsafe work cannot be fired
  • all prov. and territories have safety officers who inspect working conds. and deal w/ employee complaints
  • employer required to set up joint health and safety committees (JHSC)
    • ensures safety standards being met
    • otherwise they stop work until standards are met
    • standards under constant review
  • co-op students and workers in unpaid training programs not covered by law until 2014
  • nov. 2014: Stronger Workplaces for a Stronger Economy Act (Ont.)
    • protects vuln. workers incl. co-op students and unpaid interns

Labour Law and Collective Bargaining

  • labour law: the branch of law regulating unionized workplaces or workers bound by collective bargaining agreements
  • unionized workplace: employees belong to a group that votes for a team of leaders
    • elected leader acts on behalf of all employees in bargaining w/ employer for collective agreement / contract
  • collective agreements: a document that contains clauses defining the employment relationship for the life of the contract and must also incl. a grievance procedure
    • usually includes wages, benefits, working conditions, etc.
  • collective bargaining also done by association or federation negotiating on behalf of its members
    • i.e. Ontario Medical Association for Ontarian doctors

Union Organization

History

  • harsh beginning for civilized union-management relations
  • 19th century: workers move from farms and small home-based workplaces → large, often dangerous factories and mines
  • attempts to improve working conditions incl.
    • limits on hours of work
    • safety measures
    • elimination of child labour
  • 1872: illegal to attempt to form union
    • union leaders often arrested, beaten, and even killed
    • union movement grew stronger over time
    • support for basic rights such as min. wages and safe working conds. grew

Canada Labour Code (1985)

  • Canada Labour Code (1985) regulates labour-management relations
  • administered by Canadian Industrial Relations Board
    • quasi-judicial body
    • made up of representatives of gov’t., labour, and businesses
    • full force of courts to adjudicate disputes between union and mgmt.
  • provincial Labour Relations Board
    • oversee collective bargaining process
    • incl. how union formed
    • behaviour during negotiations
    • what happens when negotiations break down
    • both sides expected to play by rules and follow strict procedure

Forming a Union

  • certification: a method of determining whether or not there are sufficient workers interested in becoming members of a union
    • must be certified by applying to labour relations board
    • certified only if it can gain support of majority of employees, min. 55%
    • illegal for employers to threaten to fire employees for attempting to organize union
    • employer cannot promise favours such as promotions or wage increases to influence workers
    • union cannot threaten workers who don’t wish to join

Negotiation

  • certified union has exclusive right to represent workers bargaining w/ employer
  • union representatives elected by union members and face re-election
  • Rand Formula: formula that requires all members of the bargaining unit, whether or not they are union members, to pay union dues
  • closed shop: all employees in the workplace must belong to the union
  • open shop: not all employees in the workplace must belong to the union
  • good faith: both management and union must sincerely work toward a collective agreement
    • no good faith, other side can make complaint to Labour Relations Board
    • Labour Relations Board can impose sanctions / penalties if complaint upheld
  • Interest of Union and Workers
    • arrive at agreement that is favourable in terms of:
    • wages
    • hours of work
    • benefits
    • disciplinary procedures
    • seniority rights
    • etc.
  • Interest of Management
    • ensure company remains profitable
    • shareholders continue to benefit

Mediation and Arbitration

  • in cases where negotiations break down
  • Labour Relations Board may ask both sides to engage in mediation / arbitration
  • Board may impose mediator, especially where workers provide essential public services
  • mediator sits down w/ both sides and makes recommendations
  • if both sides reject mediator’s recommendations, parties may request arbitrator
  • binding arbitration: a review process and decision by a neutral third party, which both sides of the dispute must accept

Grievance Procedure

grievance: allegation / formal protest by an employee (usually) or union (or management in certain cases) of misrepresentation or misapplication of a collective bargaining agreement

  • most grievances quickly settled in meeting between management and union representative
  • no settlement: union and mgmt. must follow series of steps that may end up in arbitration

Strikes and Lockouts

  • when negotiations break down completely
  • if union believes it has support of workers
    • it asks for strike vote usually in form of secret ballot
    • if >80% of workers vote to strike
      • strong message sent to mgmt. that workers are prepared to walk off the job
      • may provide incentive to go back to bargaining table
    • union’s position weakened if only small amount of workers support strike
  • strike difficulties
    • workers unpaid
    • workers paid small amount out of strike fund from union
  • work-to-rule: job action during which employees continue to work, but perform only essential components of their job
    • alt. to full strike
    • i.e. teachers refuse to participate in extracurriculars
  • lockout: situation in which employers bar employees from entering workplace
    • not usually in employer’s financial interest to lock out employees
    • generates anger / resentment among employees
    • tactic to speed up negotiation process
  • Gov’ts. can intervene in labour disputes
    • essential employees (i.e. doctors, police officers) can be legislated back to work

Once strike is inevitable and all legal requirements met…

  • union set up picket lines outside of place of employment
  • purpose of picket lines
    • getting union’s position known to public
    • ensures workers don’t cross picket line and return to work before strike is over
  • picketing must be peaceful and lawful
  • s. 76 of Labour Relations Act of Ont. prohibits strikers from using force / intimidation
  • picketers cannot
    • obstruct roadways
    • force people not to do business w/ employer
    • picket on private property
  • unions can only prevent their own employees from going to work
    • they cannot prevent employees from diff. union from going to work
  • scab: slang name for a worker who crosses picket line to work during strike
    • can be disciplined by union
    • employers in some prov. permitted to use replacement / temp. workers who must cross picket line in order to work

Reaching a Collective Agreement

  • ratification: voting process by bargaining unit members that constitutes the signing of collective agreement by union and management
  • collective document incl. legally binding terms
    • length of contract
    • wages
    • benefits
    • working conditions
    • time off for personal or parental leaves
    • safety issues
    • grievance procedures

Human Rights in the Workplace

  • Canadian Human Rights Act and provincial human rights codes
    • prevents employers from discriminating on basis of race, age, marital status, gender, disability, etc..
    • employers cannot ask prospective employees to indicate age / marital status at interview
    • workers w/ mental or physical disabilities must be accommodated in workplace up to point of undue hardship
    • employees cannot be fired for being on sick leave / parental leave
      • not protected from mass layoffs
  • just cause: serious reason (such as theft, fraud, or misconduct) for terminating an employee and for which an employee is not entitled to notice / compensation
  • employers must ensure job requirements are bona fide
    • they specifically relate to job task

Harassment

  • c5-human-rights
  • further expanded by Ont. gov’t. in response to continued complaints regarding sexual violence / harassment
  • Bill 132, Sexual Violence and Harassment Action Plan Act
    • proposes changes to Occupational Health and Safety Act (OSHA)
    • modify and expand current def. of “workplace harassment” to incl. “workplace sexual harassment”
    • requires employer to have procedures for workers to report incidents to person other than supervisor / employer if sup. / emp. are subject of complaint
    • info. obtained regarding complaint not disclosed until necessary
    • employee w/ complaint must be informed of results of investigation and any corrective action taken
    • employers expected to renew procedures annually and ensure employees are informed about procedures
    • allows inspector to order employer to have investigation and report completed by impartial 3rd party at employer’s expense

Pay Equity

  • pay equity: equal pay for work of equal value
  • fundamental human right
  • various laws enacted to address prob. of wage discrimination
  • 1951: UN ILO adopted convention concerning equal pay for men and women for equal value
  • 1972: Canada ratifies ILO’s convention on equal pay
  • women on avg. still earn less than men
    • factors: education levels, work experience, unionization, family / home responsibilities, discrimination
  • 1987: Ont. passes Pay Equity Act
    • ensures that employers provide pay equity for female employees
    • employers required to identify and correct gender discrimination
    • and adjust wages of female employees so that they are at least equal to male wages
  • 2011: women earned ~74¢ / $ of man

The Changing Workplace

  • temporary and contract employment becoming norm in many workplaces
  • tech making work from home easier
  • national youth unemployment / underemployment growing concerns
  • manufacturing jobs paying high wages being replaced by lower-paying service jobs
  • decrease in unionization
    • harder to represent temporary, contract, and service-industry employees
  • bill 12 amend Ont. Employment Standards Act, 2000 to protect employee tips and other gratuites

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