Questions- Common Law

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The Legal Regimes. Common Law (non-union)Collective Bargaining (union)Statutory or Employment Law (union

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Questions- Common Law

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1. Questions- Common Law Describe and differentiate the three legal regimes Define and discuss the three questions associated with common law dismissal Define ‘Just Cause’ When is an employer required to give notice of termination?

2. The Legal Regimes Common Law (non-union) Collective Bargaining (union) Statutory or Employment Law (union & non-union)

3. Samantha hired by Teleconnection Inc. June 2007 terms of employment negotiated between her and Teleconnection $30,000 and 3 weeks vacation June 2009 - Samantha is fired without notice for failure to follow work rules Samantha sues for wrongful dismissal Court rules no just cause - she should have been given 4 weeks notice orders payment in lieu of notice

4. Common Law - Samantha similar to contract law employment relationship is an individual contract for labour Assumes both parties are free and equal contracting parties in the sale/purchase of labour enforced/adjudicated by the courts Often called the ‘master-servant’ relationship (more in Chapter 6)

5. Collective Bargaining Law: Juanita hired by Data Inc. (unionized) June 2007 terms of employment outlined in CLA June 2008 - Juanita fired for failure to follow work rules June 2008 - Juanita files grievance Sept 2009 - arbitrator rules reinstatement (e.g., she gets her job back)

6. Collective Bargaining Regime - Juanita based on inferior bargaining economic power of employee vs. employer substitutes individual employment contract with collective employment contract between the union and the employer Contract is known as a collective agreement enforced/adjudicated by administrative tribunals Labour Relations Board Arbitration

7. John: Statutory or Employment Law John works as a Nurse at Central Hospital not a union member worked Labour Day Monday and not paid overtime files a complaint with labour standards officer

8. Statutory or Employment Law (John) Laws related to the minimum terms and conditions of employment for all employees (union and non-union) usually enforced/adjudicated by administrative boards Labour Standards Officers/ Tribunals Human Rights Commissions

9. Common Law Three key components Employer Employee Employment Contract/Agreement

10. Employee Per Montreal Locomotive Works Ltd (1947), an employee does not have control of the work ownership of the tools chance of profit risk of loss Employees are required to work serve honestly and faithfully obey lawful and safe orders be present provide notice (intention to quit)

11. Employer An employer is required to pay employee (at or above minimum wage) give reasonable notice of dismissal without cause can give payment in lieu of notice notice is not required when the person is not an employee the contract is of a specific duration the person resigns there is frustration of contract there is a temporary layoff the employer can show just cause**

12. The Contract A contract can be Expressed through offer letters oral agreements employee handbooks Implied by past practice

13. Dismissal: Question 1 - Was there expressed/constructive dismissal? (AKA - Is there evidence the employee was dismissed?) expressed - writing/verbal constructive - fundamental change in contract pay level, job title/status, hours of work, benefits

14. Dismissal: Question 2 - Did the employer have “Just Cause”? Just Cause - Port Arthur Shipping Co. (1967) serious misconduct habitual neglect of duty (gross) incompetence conduct prejudicial to employer’s business willful disobedience to the employer’s orders No Just Cause - go to question 3 economic conditions reorganizations

15. Dismissal: Question 3 3- If the employer did not have just cause, how much notice is required? Reinstatement is not deemed reasonable – only remedy is notice (or pay in lieu of notice) Notice/pay in lieu of notice calculated based on statutory minimum unemployment/length of time to obtain a similar position age and service level of responsibility education/training approx 1 month per year of service (max 24 months)

16. Questions: Statutory or Employment Law What elements are included in the Employment/Labour Standards Laws? Explain employment legislation related to Human Rights, the Charter, Employment Equity and Pay Equity Define BFOQ/BFOR, Duty to Accommodate, and Discrimination What are the goals of Health and Safety Legislation?

17. Elements included in Canadian Labour/Employment Standards Laws floor of rights - the minimums for all employees (union and non-union). It includes hours of work and scheduling overtime meal and coffee breaks vacation public holidays minimum wage wage protection maternity leave notice of termination

18. Types of Human (or Employee) Rights Legislation Charter of Rights and Freedoms (Constitution 1982) Canadian Human Rights Act (1985) Employment Equity (1986) Pay Equity Various Health and Safety laws Occupational Health & Safety

19. Charter of Rights and Freedom Everyone has freedoms related to Conscience and religion Thought, belief, opinion, and expression Peaceful assembly Association Subject to reasonable limits….

20. Human Rights Act and Employment Equity Legislation Largely influenced by Civil Rights Act of 1964, title VII rectify past employment discrimination Human Rights Act – employers cannot discriminate based on prohibited factors gender age race/ethnicity sexual orientation Disability, etc. Employment equity focused on 4 target groups and seeks to minimize employment discrimination for women, visible minorities, persons with disabilities, aboriginals

21. What is Discrimination? In practical terms: Employers decisions made on factors unrelated to real job duties are deemed discriminatory The role of BFOQ/R - Bona Fide Occupational Qualification/Requirement Employer is inconsistent in application of job performance standards/job duties Looks like favoritism Systemic Discrimination– rules followed and protected groups disadvantaged Direct Discrimination – implies intentional discrimination

22. Human Rights Solutions and Remedies: In practical terms Employers bear the Duty to Accommodate reasonable steps to correct the situation unless ‘undue hardship’ Examples: modified hours of work, job duties, breaks, etc. onus on employer to prove ‘undue hardship’ BFOQ/R - Bona Fide Occupational Qualification/Requirement discrimination is ‘permitted’ if decisions are based on job requirements that are consistently applied to all job holders

23. Pay Equity Examines gender-based pay discrimination: Seeks equal pay for jobs of equal value as determined by factors such as skill/knowledge, effort, job responsibilities, working conditions Engineer versus nurse

24. Occupational Health & Safety Internal Responsibility Model (IRM) Right to know about hazards Right to participant in joint (employee/union-management) health and safety committees Right to refuse unsafe work without fear of reprisal Provincial goals: the prevention of workplace accidents and illness recognition that all workers have a fundamental right to a workplace that neither impairs their health nor imperils their safely works with stakeholders to establish, promote and enforce workplace health and safety

25. Canadian Collective Bargaining Legislation (focus of chapter 2) Canadian laws modeled after the Wagner Act (1935) right of employees to unionize right of collective bargaining prohibited employer interference unfair labour practices (s.23-26) interfere with selection, formation, admin of a union financial support of union threat to dismiss/ penalize a person for being a union member/rep administrative agency (Labour Relations Board) to oversee the act Certification, unfair labour practices, illegal strikes/lockout

26. The “Big Five” Concepts Related to Collective Bargaining Legislation Displaces Common Law Majority and Exclusivity Voluntarism Statutory Freeze Dispute Resolution Procedures

27. Displaces Common Law Displaces common law NOT statutory law individual contracts of labour no longer exist there is a collective employment contract/agreement Which legislation governs the collective employment relationship? Depends on: jurisdiction federal = banking, inter-provincial transportation, communication, defense and defense-related activities provincial = the rest Public vs.. Private (s. 3) Private - one provincial act Labour Relations Act Public - a number of laws Royal Nfld Constabulary Act Teachers Collective Bargaining Act

28. Majority and Exclusivity (s. 50) If union has support of a majority of employees in the bargaining unit it can be certified exclusive right to bargain on behalf of all employees within that unit employer must recognize the union as the exclusive bargaining agent the union must represent all employees fairly Duty of Fair Representation

29. Exclusivity Principle Means... Individual contracts disallowed Employer cannot bargain directly with employees No other union may bargain on behalf of the employees in the bargaining unit Right to Bargain for Union Security Provisions closed shop union member prior to hiring (s. 31 OF LRA) union shop must join union on hiring dues shop/Rand formula/agency Shop (s.87) must pay dues not required to join union

30. Voluntarism Free Collective Bargaining: unionized workers and their employers: should resolve disputes voluntarily to the satisfaction of both parties with minimal government intervention Duty of fair bargaining – parties must make serious attempts to reach settlements

31. The Statutory Freeze Prohibits unilaterally changing terms and conditions of employment between the time of application for certification and completion of bargaining Applies during later rounds of bargaining “Business as before”

32. Dispute Settlement Procedures Third-party interventions prior to a strike Conciliation (s. 98) 15 days since minister received request for conciliation Interest Arbitration used as substitute for strike or lockout First Collective Agreement (Arbitration) (s. 81) Last Offer Vote Grievance (or Rights) Arbitration replace right to strike/lock-out during term of CLA (s.86, 99)

33. The Certification Process Certification: the process by which the Labour Relations Board determines that a union is entitled to act as the exclusive bargaining agent (BA) for employees in a bargaining unit (BU) Cornerstone of Canadian labour law and the gateway to union representation Employees can only have union representation after the union is certified critical implications for the % of workers covered by collective agreements

34. Union representatives/supporters approach other workers to sign union cards indicating support If sufficient numbers, file an application with the Labour Relations Board for certification 40% in Nfld (s. 38 and 47)

35. Methods of Certification: (varies by province – see table 2.1) Automatic Certification: Uses signed membership cards as evidence of union support If union demonstrates a majority support through these signed cards, certification is ‘automatically’ granted If union has minimum threshold of support (eg. Between 40% and 55%), a vote is ordered Mandatory Vote - Nfld: vote always required regardless of levels of support Board Ordered: Usually due to unfair labour practice Very rare

36. Eligibility of Employees: Some employees are not permitted to sign union cards and/or unionize Some variation across jurisdictions Workers are generally “employees” unless they: actually exercise managerial authority employed in a confidential capacity with respect to industrial relations “does not include a manager or superintendent or other persons who, in the opinion of the board, exercises management functions or is employed in a confidential capacity in matter relating to labour relations”*

37. Other Common Exclusions Certain professionals such as doctors, dentists, lawyers, architects, engineers Note this exclusion becoming less common Movement to union-like representation such as the NL Medical Association domestics or agricultural employees students (eg. Summer/temporary employees)

38. Defining the Appropriate Bargaining Unit (BU) Labour Board determines the appropriate unit for the purposes of collective bargaining The fashioning of appropriate units determines the underlying structure of collective bargaining and impacts: the success of certification the balance of power between the parties, overall performance of the system

39. Labour Board (LRB) Objectives In determining the BU, Labour Boards seek to to protect the rights of employees to access collective representation to ensure the viability and stability of the collective bargaining relationship, once established If too broad can reduce the likelihood of a successful organizing drive If too narrow May result in a proliferation of small units administrative difficulties, industrial instability and little union bargaining power

40. Factors Labour Relations Boards Consider When Determining BU: Statutory limitations Wishes of the parties (not determinative) Industrial stability Nature of employer’s organization Geographic factors Traditional methods of union organizing (e.g., craft?) Community of interest (very important)

41. Decertification/Revocation Union can be decertified (s. 51) when: after Board investigation- the union is deemed to no longer represent a majority of employees in BU by vote: 40% sign cards 70% of BU votes and majority seek revocation LRB is not required to address a decertification application within 12 months of certification within 6 months of previous application within 12 months of date of notice to employer to start bargaining

42. Distinctive Features of Cdn Legislation Simplicity of certification process often through use of cards alone Restrictions on Strike/Lockout grievance etc. Mandatory Grievance Arbitration Right of Union Security Closed shop, union shop, Rand formula Protection of striking workers

43. Increased Government Role in Cdn Legislation Industrial Inquiry Commission Special legislation for certain industries. Last-Vote Offer Replacement workers

44. Role of the Charter 1980’s - Right to strike and collective bargaining were not covered under freedom of association Lavigne – dues being used for non-CB activities does not violate charter Peaceful secondary picketing allowed 1997- Supreme court rules (replying on ILO labour standards) that collective bargaining is a constitutional right under freedom of association (see IR Today 2.4)

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