Canadian Labour Law & Industrial Relations

PIPSC Joins the Canadian Labour Congress

2011-11-08T17:12:00.000-08:00

The Professional Institute of the Public Service of Canada (PIPSC) voted to join the Canadian Labour Congress this last weekend. PIPSC a public sector trade union has never affiliated with the Canadian Labour Congress, though attempts to affiliate have been brought to the Annual General Meeting in the past. Its undoubtedly a historic step for PIPSC, and a great outcome for the CLC, as they get 55,000 to 60, 000 new members.

Congratulations to PIPSC members on becoming members of the CLC!

Jim Stanford - Raitt's Three Principles of Labour Relations

2011-11-04T13:00:00.000-07:00

Jim Stanford of the CAW published a very interesting column this week in the Globe - Raitt's Three Principles for Labour Relations only run one way. In short he argues that the the Minister's actions in recent labour disputes illustrate three principles that are defining the government's approach to industrial action.

1) Even at private non-monopoly companies the government can ban strikes (CAW / Air Canada)
2) Government can explicitly dictate wage settlements (CUPW / Canada Post)
3) The Government has the explicit right to ban all work stoppages (CUPE / Air Canada)

Its a great summary of the Conservative Government's approach to work stopages and industrial action even though its a bit scary.

Carmela Allevato's Labour Law Blog: What information does the employer have to provide to the union?

2011-05-16T08:25:00.000-07:00

Carmela Allevato's Labour Law Blog: What information does the employer have to provide to the union?: "What information does the employer have to provide to the union?"

Carmela Allevato's Labour Law Blog: BC Supreme Court decision on promissory estoppel in labour arbitration

2011-05-16T08:18:00.000-07:00

Carmela Allevato's Labour Law Blog: BC Supreme Court decision on promissory estoppel in labour arbitration: "In a recent decision Telus Communications Inc. v. TWU http://www.courts.gov.bc.ca/jdb-txt/SC/10/14/2010BCSC1429.htm, the British Columbia Supreme Court had occasion to review the doctrine of promissory estoppel and its application in labour arbitration. The court confirmed that there must be a finding that the promissor intended to affect legal relations and that the representation must have been unambiguous and precise for a promissory estoppel to be established.
The case is a good reminder to ensure that statements are clear and free of ambiguity; and that, even where an employer or a union says that it has no intention of enforcing its legal rights under an agreement, they may still assert those rights unless there was an intention to alter them."

John Gordon on the Treasury Board agreements

2010-11-09T08:26:00.000-08:00

PSAC has posted a short video clip on its web site where John Gordon, PSAC President, explains the reasoning behind PSACs decision to go to the table early with Treasury Board and to negotiate severance issues with the Treasury Board. Here is the clip

Its interesting to listen to Gordon on severance, he attempts to sell the deal to members by saying that its money in your pocket now which is pensionable, whereas at the end of your career under the old agreement it is not pensionable. This kind of glosses over the fact that this is a major concession on the part of PSAC. PSAC's Q&As on the severance question are much more detailed and provide their members with much better information to make informed decisions. See them here.

PIPSC Pulls out of Contract Talks with Treasury Board

2010-10-27T05:41:00.000-07:00

Word has spread by now that PIPSC has pulled out of early contract talks with Treasury Board. The Ottawa Citizen has a article in yesterday's issue on the story. The pull out was basically about the concession of severance pay. Earlier in October PSAC reached a deal for its PG, EB and SV Treasury Board Groups in which they made an important concession - they gave up severance pay on retirement and voluntary departure. This is a long standing benefit public servants had in their collective agreements. PSAC essentially traded this for a higher wage increase. Debate is starting on whether this was the right call for PSAC. The PIPSC pull out undoubtedly signals a difference of opinion between the two biggest public sector Unions. To know more about the severance issue see PSACs Q&As on the matter.

Expedited Bargaining for Federal Public Sector Unions

2010-10-13T20:03:00.000-07:00

I have been meaning to post on this for a while but our new baby (see personal blog urminsky.blogspot.com) has kept me pretty busy. Many readers will have noticed that the Treasury Board of Canada has or is about to go to the Bargaining Table with two major public sector PSAC and PIPSC respectively. Various news outlets have been reporting on this unprecedented move by the Treasury Board. Usually negotiations to renewal collective agreements drag on and on, unless it is cut short with the introduction of legislation imposing settlements or specific terms.

PSAC announced its deal on October 4, 2010. Three of its 5 Treasury Board Groups signed tentative agreements with the Treasury Board. The highlights of these agreements are discussed on the PSAC website here. PIPSC represents 6 Treasury Board Groups and these will be heading into bargaining with Treasury Board soon.

Undoubtedly debate will rage about whether these deals are good or not. The Canadian Federation of Independent Business was quick to condemn the government for the deal, see their article here.

Federal Medical Adjudicators

2010-05-07T13:09:00.000-07:00

A few months back the Federal Court heard an appeal in the case of Walden v. Treasury Board, the Ottawa Citizen reported on the appeal here. This case stems from a decision of the Canadian Human Rights Tribunal.

The case concerned medical adjudicators who claimed to have been discriminated against by the Federal Government. Paragraphs 13 - 23 address the facts in the case but to sum up, medical adjudicators claim they had been discriminated against because Treasury Board placed them in the Program Adminstrative Group rather than the Nursing Group. Medical Advisors, who are doctors who perform substantially similar work to the medical adjudicators are in the Health Services Group (SH) and are classified using the MD classification standard. This all has implications in the end for the pay of medical adjudicators as well as the union that represents them.

The Federal Court dismissed the employers application for judicial review this week. The Ottawa Citizen has a review of the case and the decision here. It will be interesting to see Treasury Board's next move in this case.

A week at Queen's University's Industrial Relations Centre

2010-04-21T19:23:00.000-07:00

I spent last week at Queens Univerity's Industrial Relations Centre taking a course on Negotiation skills. It's not my first course in negotiation nor is it my first exposure to collective bargaining, but it was certainly a good place to learn new techniques and skills and to further hone existing ones. I would recommend the course to anyone who is interested in further developing their skills as a negotiator.

Harper Closes Human Rights Commission Offices

2010-03-31T06:17:00.000-07:00

The Canadian government recently announced that it was closing Canadian Human Rights Commission Offices in Toronto, Halifax and Vancouver. Unions have been quick to condemn the attack on the commission.

To be fair the Commission has also claimed that the decision is an internal one and won't really affect the handling of complaints as the office's in question were mainly dealing with education. See the news piece that quotes Karen Mosher, Secretary General of the Human Rights Commission.

So which is it? PSAC jobs are definitely affected so there is an interest there in putting out the Union's side of the story. Or will the work of the commission really be affected? I would like to see a bit more of an aggressive campaign from the commission that handling of complaints will not be affected than a few quotes in a news piece on line. I will keep searching and update this post as I do.

CSR, Workers' Rights and Business Schools: A Response to David Doorey

2010-03-22T07:00:00.000-07:00

David Doorey pondered in a recent post several questions about how business schools are approaching corporate social responsibility. I worked on CSR issues with the International Labour Office for 8 years so I know a bit about this. In particular while at the ILO I advocated for the ILO to work with business schools that had CSR programs. These programs were just begining in those days. I tried to convince my colleagues that we need to integrate ILO standards into business education programs around the world.

Doorey's post sparked my interest in this area again so I spent a bit of time with google and my old bookmarks from the ILO and found some interesting information I thought I would share.

Prof Doorey asks,

"[D]o the business schools and the CSR rankings consider labour practices to be a central part of ‘corporate social responsibility’, or is CSR really about environmental issues and philanthropy?"

1) Business Schools

In my experience business schools and CSR programs ignore the labour rights dimension of corporate social responsibility almost entirely.

Why is this? Business schools market their graduates to companies. As such they need to respond to the demands of companies (at least to a certain extent). Companies have a wide range of views on what constitute CSR, for some it means Philantropy, environmental issues, community involvement, employee volunteering, and others it means human rights and or workers rights.

I tend to believe the vast majority of companies see CSR as primarily environmental, community and philantropic, with the exception of the apparel, footwear, textiles and agricultural sectors, workers rights do not get the same level of attention that environmental and community issues do. If you agree with this it is not surprising that business schools do not have courses that look at human rights or workers rights as there is likely little demand for skills that these courses would teach.

That is not to say there are not some exceptions out there. One that is close to home is St. Mikes at University of Toronto which has a
Certificate in Corporate Social Responsibility. The program lists employee relations and human rights as part of Module 2. However, its not clear how they address it or what module 2 even is. Maybe St. Mikes can invite Prof Doorey to come down and give a talk on labour rights in their program?

CSR Rankings of Business Schools

Doorey also asks about the rankings of CSR programs and whether they take into account labour rights. I looked into this a bit and found the Corporate Knight Survey. The Corporate Knights seem to do annual rankings of selective university programs such as law schools, MBAs, and public policy programs.

In 2007 their survey addressed Canadian business schools, and in particular how well these schools were integrating CSR into their curriculum. The 2007 survey methodology is online. A search of the document reveals no focus on the components of CSR (ie human & workers rights, environment, community, ...), there are just general references to CSR or social and environmental issues. This is disappointing and consistent with what Prof. Doorey questions in his post.

As I said earlier in this post, I had tried to encourage the ILO to work with business schools to integrate the fundamental principles and rights into business school curriculum. Writing this post got me wondering how one would go about doing this now. I started looking into it and found that the United Nations had started a initiative called the Principles for Responsible Management Education - and I though, someone read one of the Memo's I wrote one of the memo's I wrote while working in the ILO.

The UN`s Principles for Responsible Management Education claims to be inspired by the UN Global Compact`s. Four of the Global Compact's principles are the ILO's Fundamental Principles and Rights at Work (Freedom of Association, Collective Bargaining, Child Labour and Forced Labour). However, despite the inspiration of the Global Compact, the PRME seems focused almost entirely on environment and community issues. I will acknowledge that this is based on a fairly rudimentary review of their web site and I stand to be corrected. So alas those memos sit waiting to be read in the archives of the ILO. Nevertheless if the ILO wanted to try to start integrating labour rights into business school curriculum this may be a useful place to start their efforts, at least you have a group of schools that may be receptive to the issues.

The ILO is also well placed to begin this, as they have a suite of products that business schools could take and adapt.

When I was working in the ILO, one of my jobs was developing a course for managers on the fundamental principles and rights at work. I taught the course to managers and trainers in 10 countries and was even invited to a few European Universities to perform short courses for students. One of the reasons we sought to develop this program was because of a perceived lack of training for companies from existing business schools. The ILO Training Center in Turin Italy also offers a number of courses in what would generally be called the labour dimension of CSR.

You can see a general description of their program here. I use to teach some of these courses between 2000 and 2005 but I don't know what they are like now. Subjects include;

Socially Sensitive Enterprise Restructuring,
Global Supply Chains,
International Labour Standards and CSR.

I think this program, though far from perfect is a good attempt at trying to integrate labour rights into the CSR movement. Maybe the ILO Training Centre should start partnering with Business schools to start getting labour rights on their curriculum.

Creating International Labour Standards on Domestic Workers

2010-03-16T19:33:00.000-07:00

The ILO recently released its law and practice report on Domestic Workers. A law and practice report is one of the early stages of developing a international labour standard (Convention or Recommendation) on a particular issue. The process of adopting an international labour standard typically involves the following steps.

1) The ILO governing body places a topic for discussion on the Agenda of the International Labour Conference.

2) The International Labour Office prepares a report on the law and practice, which is based on survey replies from governments, workers and employers organizations.

3) The Law and Practice Report is discussed at the International Labour Conference

4) Based on the discussions at the conference the Office prepares a report and draft instrument which is sent to tripartite partners.

5) Tripartite partners send comments on the draft instrument which is then revised by the office and submitted to the next International Labour Conference.

6) During the next International Labour Conference the draft instrument is finalized and voted upon at the conference. Passing the instrument requires a two thirds majority.

Its a pretty quick process for adopting international law, especially when compared to negotiations in the UN on human rights instruments which can take decades in some cases. Its also probably the reason that the ILO has 188 Conventions and 199 recommendations.

Back to domestic work though, if your interested in the subject the report is a must read. Based on replies from governments, unions and employers these reports are a rich source of information for anyone interested in the topic they deal with. They are often overlooked by researchers and academics. Happy reading ....

Labour Video of the Year

2010-03-16T07:43:00.000-07:00

Labourstart is hosting its Labour Video of the year contest, you can vote for your choice's here - my favorite is the Australian - What have unions ever done for us?

Federal Budget and Industrial Relations

2010-03-05T05:56:00.001-08:00

The Federal Budget was introduced in Parliament late yesterday. Its impacts on industrial relations and employment were quickly criticized by Unions. Here is a smattering of Responses from public and private sector unions.

Public Service Alliance of Canada - Put People First

Professional Institute of the Public Service of Canada - Canada's Future Compromised by a lack of Vision

Canadian Labour Congress - Eliminate the Deficit by putting 1.5 Million People back to Work

An excellent read at Budget time is the Canadian Center for Policy Alternatives Alternative Federal Budget which can be downloaded here.

Walkom, on Class Resentment and Public Sector Employees

2010-03-03T05:23:00.001-08:00

Thomas Walkom published an article in the Toronto Star a few days ago on The Art of Reverse Class Resentment.

The debate about public sector workers sharing the pain of the recession is one that has dominated the headlines with those on the right beating the drum complaining about public sector pensions, high wages, and guarantees of job security. Similarly, public sector unions are mobilizing for a fight to protect their members Pensions.

Walkom is right to point out that this debate distracts from an important set of issues - as he puts it.

"It removes the focus from the country's real pension problems:
Most Canadians don't have workplace pensions; those who do have
found their plans savaged by this recession."

Do we think the government could get their act together and actually propose something? I suspect not .... .

Two Video's about Unions to Watch - Comments to Come

2010-01-17T09:34:00.001-08:00

These two videos were draw to my attention by the Perry Work Report. I have not had time to watch them yet but they sound interesting, and I don't want to forget to watch them.

Ontario's Labour Peace Bought or Brought?

and

The Future of Unions (Charlotte Yates)

Canadian Human Rights Commission Revises its Policy on Drug and Alcohol Testing

2009-11-30T06:47:00.000-08:00

The Canadian Human Rights Commission revised its Policy on Drug and Alcohol Testing in October. The new policy is suppose to reflect the most current case law.

For those who are interested in this topic, the Canadian Centre for Substance Abuse maintains a useful site which links to most of the Provincial Human Rights Commissions Policies in the area of Drug and Alcohol Testing.

Walmart and the Supreme Court

2009-11-29T07:35:00.000-08:00

The Supreme Court of Canada has issued its decision in Plourde v. Wal-Mart. This case deals with the closure of the Jonquiere store, the first unionized Walmart Store in North America. I will post a comment once I find the time to read the decision.

Freedom of Association Developments

2009-04-09T06:31:00.000-07:00

The Charter and Labour Law have become a hot subject since the SCC's decision in BC Health Services. Two newish developments to report.

1) The SCC grated leave to appeal in Fraser v. Ontario.

For further information see David Doorey's post.

2) The Ontario Superior Court of Justice found in Mounted Police Association of Ontario et al. v. Canada that section 41 and 96 of the RCMP Regulations 1988, SOR/88-361 infringed Section 2(d) of the Charter (freedom of association), and that the infringement was not ’saved’ by Section 1 of the Charter. These sections established a separate regime for the regulation of employment of RCMP officers outside of the scope of the Public Service Labour Relations Act which excludes from its applications members of the RCMP.

For further information see David Doorey's post.

Fraser v. Ontario (AG) 2008 ONCA 760

2008-11-18T04:44:00.000-08:00

The Ontario Court of Appeal released its decision in Fraser v. Ontario (AG) yesterday. This was an appeal brought by the UFCW to the Agricultural Employees Protection Act, 2002. The central issues in the case was whether the legislation violates S. 2(d) and S. 15(1) of the Canadian Charter of Rights and Freedoms. The S. 2(d) challenge raised the issue of whether the legislation by failing to provide sufficient statutory protections to enable workers to exercise their freedom to organize and their right to bargain collectively violated 2(d). The equality challenge under s. 15 raised the issue of whether the legislation denied agricultural workers equal protections and equal benefit of the law based on their occupational status as agricultural workers.

The Court of Appeal found that the AEPA breached 2(d). More specifically the court concluded that "the AEPA substantially impairs the capacity of agricultural workers to meaningfully exercise their right to bargain collectively." The violation of 2(d) was not saved under s. 1 of the Charter. The court declared the AEPA constitutionally invalid but suspended the declaration of invalidity for 12 months in order to allow the government time to "determine the manner in which it wishes to statutorily protect the collective bargaining rights of agricultural workers." (Para 13)

On the s. 15 claim the court found that while the AEPA perpetuates and reinforces the pre-existing disadvantage of agricultural workers, it did not constitute a violation of section 15 because the distinction is not based on an enumerated or analogous ground. (see paras 109 - 114) It will be interesting to see if the government appeals the case.

Implication of Making TTC an Essential Service - CD Howe Report

2008-10-31T12:20:00.001-07:00

Just a quick update - The CD Howe Institute has weighed in on this debate. Their report points out that its likely going to cost more the TTC is declared an essential service.

Essential Services and the TTC

2008-10-22T04:54:00.000-07:00

Unsurprisingly this topic has not gone away despite TTC management stating that it would not prefer interest arbitration. To be honest the only reason I can see for pushing this idea is populism. Three city councilors are encouraging people to sign a petition but the petition has several problems. Their petition lacks specifics such as what sort of interest arbitration system would be imposed, who the arbitrator would be or at least the criteria for selection, ... and so on. Obviously I disagree with their approach, for now I will outline two reasons I question making the TTC essential.

1) The definition of essential services in section 30 of the Crown Employees Collective Bargaining Act states;

30. In this Part,
"essential services" means services that are necessary to enable the employer to prevent,
(a) danger to life, health or safety,
(b) the destruction or serious deterioration of machinery, equipment or premises,
(c) serious environmental damage, or
(d) disruption of the administration of the courts or of legislative drafting;

It is difficult to see how the TTC fits into any of these categories. No doubt a TTC strike is inconvenient for the entire city, but inconvenience, does not make something an essential service.

2) The outcomes that a interest arbitration process might create. Below I have cited a few articles I came across after a Google Scholar search.

Regulating Labor Conflict In Public Sector Labour Relations: The Ontario Experience, found that bargaining units covered by compulsory interest arbitration arrive at impasse in bargaining 8.7 to 21.7% more often than in right to strike sectors. This implies that by taking away the threat of strikes and conversely lockouts the parties will be more likely to dig in their heals and resort to the interest arbitration process.

Interest Arbitration, Outcomes and the Incentive to Bargain by Henry S. Farber and Harry C. Katz at MIT

(From the articles preface) This study develops a model of bargaining that demonstrates that an interest arbitration procedure will encourage negotiated settlements to the extent that risk aversion dominates the preferences of the parties and there is uncertainty regarding the arbitrator's behavior. The authors conclude that it is likely that risk aversion does dominate preferences, but the evidence is not conclusive. They also argue that uncertainty may be reduced over time for various reasons, leading to increased use of arbitration and a convergence between the terms of negotiated and arbitrated agreements.

Anyone interested in the topic (beyond mere populist rhetoric that is) should really try to read some of the literature out there on this topic - there are a wealth of well researched and thought out papers.

CEO Beaten to death in India

2008-09-24T04:45:00.000-07:00

The Toronto Star reported that about 125 dismissed workers went on a rampage at a factory outside of Delhi. See the story online here. A shocking story for anyone labour or management. But what have been the reactions of players in India. The Minister of Labour Oscar Fernandes is reported to have said that "this should serve as a warning to management[s]" in an India Times article. The Confederation of Indian Industry has condemned the murder. I could not find any quotes from Trade Union Centres in India on the matter. No doubt this is shocking and whether you are management, labour, or government you would be shocked and appalled at an event like this.

However, I wanted to put a bit of perspective on the issue of murders in the workplace. The manager was murdered on September 22nd. That same day, the International Confederation of Trade Unions (ITUC) reported that 2 workers were shot in Kathmandu and 80 arrested as workers protested temporary contracts. Furthermore in August of this year 3 more trade unionists were murdered in Columbia, bringing the 2008 total for murdered trade unionists in Columbia up to 38 according to the ITUC. The Toronto Star covered none of these to my knowledge.

Employee Blog Gets her Fired

2008-08-26T15:29:00.000-07:00

This news item from Lancaster House was drawn to my attention by a colleague who asked if I ever posted about my work colleagues on my blogs. I never do, and if I did it would be to praise their competence, efficiency, pleasantness, and all around good nature - just for the record.

The case Lancaster refers to is Alberta Union of Provincial Employees v. Alberta. in which an employee who was encouraged to write about her feelings by her doctor ended up getting fired for the hurtful comments about colleagues and managers and as well as derogatory comments about administrative procedures.

Employee blogging was such a new thing that the parties noted Arbitrator Polok could only find one other case where an employee was disciplined (terminated) for the contents of their blog. This surprised me quite a bit, considering the amount of blogging going on, and particularly some of the complaints about workplaces that I have seen on some blogs - am surprised more cases have not come up.

Walmart Updates

2008-08-14T04:45:00.000-07:00

Walmart has been in the news a lot lately. There have been a flurry of news releases, blog articles, and other news about the recent decision of the Supreme Court of Canada to grant leave to appeal in two cases from the Quebec Court of Appeal. These cases concern a Walmart store that was closed after a union was organized.

David Doorey's Workplace Blog, Michael Fitizgibbon's Thoughts of a Management Lawyer, and Workplace Blog Prof have all posted very interesting articles since the decision to grant leave to appeal on August 7th, 2008.

As if the appeal to the Supreme Court was not enough - Walmart is also facing an arbitrator imposed collective agreement in Quebec. UFCW Local 489 became the first union with a collective agreement with Walmart in North America according to the Vancouver sun. As the article notes, the company may be hesitant to close the store, at least until the Supreme Court rules on the closing of the store in Jonquiere, Quebec. Lets hope the Supreme Court gets it right!