Tuesday, 24 March 2020

PROTECTING YOUR BARGAINING UNIT - COVID-19 – The Corona Virus Pandemic

PROTECTING YOUR BARGAINING UNIT
COVID-19 – The Corona Virus Pandemic
  
These are tough times for all of us. Let me acknowledge that out of the gate. You’ve no doubt felt any combination of fear, disappointment, grief, chaos, angst and maybe even rage over the last few weeks in the wake of the Coronavirus pandemic. That’s okay. We all have.

Let us try and alleviate some pressure that you may be facing with respect to protecting your membership and ensuring a safe work environment. We will be specifically discussing the following protections: legislated leaves, work refusals, and grievances with respect to collective agreement & statute violations.

Legislated Leaves

On March 17, 2020, the Ontario Government declared an emergency. Two days later, on March 19th, 2020, Bill 186 was passed. This bill amends the ESA to provide job-protected leave to employees in isolation or quarantine due to COVID-19, or those who need to be away from work to care for children because of school or day care closures or to care for other relatives.

This leave applies to employees who are impacted by COVID-19, including but not limited to those engaged in treatment for the virus, in isolation, directed not to work by their employer, or for an employee who is providing care to persons infected.

The employer may require the employee to provide some evidence that is reasonable in the circumstances, which could include a note from the daycare, etc., but not a medical note. These measures are retroactive to January 25, 2020, and will remain in place until COVID-19 is defeated.

Right to Refuse Unsafe Work (Occupational Health and Safety Act)

In addition to the Emergency Leave noted above, employees retain the right to refuse unsafe work under the Occupational Health and Safety Act (OHSA). That being said, I want to note that the right to refuse work is currently not much help to employees. The test applied by the Ministry is one of “imminent harm”. The reality is, although COVID-19 has been deemed a GLOBAL PANDEMIC, the Ministry has not yet considered it as meeting the test of “imminent harm”.

Should you advise your members to stop refusing unsafe work? Absolutely not. Continue to advise them of this practice, yet please consider the additional course of action. 

Collective Agreement and Occupational Health and Safety Act (Combined)

File a grievance for a breach of the health and safety articles contained within your collective agreement (if applicable to your collective agreement) as well as for a breach of the Occupational Health and Safety Act

Using the grievance and arbitration procedure provides the Union and its members with the best possible remedy in our current climate. First, it provides the Union with the ability to raise the issue directly with the Employer without any 3rd party interreference. Second, we can request any remedy we deem fit. Third, we have carriage of the grievance which gives us complete control over the process.

The Employer, under both the collective agreement and the Occupational Health and Safety Act has an obligation to provide a safe work environment and further, the Occupational Health and Safety Act specifically states that they have to take all reasonableprecautions to ensure the safety of its workers. 

If your Employer is doing NOTHING to protect the health and safety of your membership in light of this pandemic, we have a serious sickness that needs to be treated, and it’s not COVID-19.

If you have any question or concerns with respect to drafting grievances, appealing ministry decisions, or protecting your members, please do not hesitate to call us.

WATSON LABOUR LAWYERS LLP
Tel:     (705) 646-5595


Disclaimer:

The content in this handout is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this handout. Additionally, ownership of this handout does not create a lawyer-client relationship.

If you would like more information, or have a specific question you would like to discuss with our Firm, please contact us by email at assistant@watsonlabourlaw.com or telephone (705) 646-5595.


Tuesday, 4 February 2020

Defending Your Local - The Duty of Fair Representation

Whether it is your first or hundredth time receiving a notice of a duty of fair representation application (hereinafter “DFR”), there is always that first moment of terror. Questions immediately run through your mind. Did you and your team do everything in your power to ensure that this applicant was fairly represented, did you ensure that you communicated with the potential grievor sufficiently, did you act negligently, etc. The following post discusses the history of DFRs, the Union’s obligations, and preventative measures with respect to the Union’s duty of fair representation. 

What is the Current Legislated Definition of a DFR? 

The Labour Acts in each of the Provinces as well as the Canada Labour Code (federally) has codified the duty of fair representation generally as conduct that is arbitrary, discriminatory or in bad faith with respect to the representation of any employee in the bargaining unit.

For an applicant to be successful they must prove that the Union conducted themselves in a manner that was arbitrary, discriminatory or in bad faith.  

Arbitrary conduct has been described as a failure to direct one's mind to the merits of the matter, or to inquire into or to act on available evidence, or to conduct any meaningful investigation to obtain the data to justify a decision. It has also been described as acting on the basis of irrelevant factors or principles, or displaying an attitude which is indifferent and summary, or capricious and non-caring or perfunctory. 

Boards have held that the term "discriminatory" is to be given a broad interpretation that encompasses all cases where the Union distinguishes among its members without cogent reasons. The prohibition functions to prevent a Union from distinguishing among members in the bargaining unit, unless there are good reasons for doing so. The duty requires, in general, that like situations be treated in a like manner and that neither particular favour nor disfavor befall any individual apart from the others unless justified by the circumstances.

Bad faith in the context of processing grievances has been described as acting on the basis of hostility or ill-will, dealing dishonestly with the griever in an attempt to deceive, or refusing to process the grievance for sinister purposes. A knowing misrepresentation constitutes bad faith, as does concealing matters from the complainant and failing to provide counsel with all the relevant information upon which to base a legal opinion and also failing to properly consider the legal advice.

Preventative Action

Know your rights as a Union executive member!

The best way to prevent your Union from falling victim to an unjust DFR complaint is education. Knowing your rights as well as the rights of the Grievor is one of the best methods for avoiding costly litigation and a DFR. Understand your duty of fair representation, know when you should pursue a grievance and when you have the grounds to drop it.

The following are examples of best practices with respect to handling grievances to help minimize exposure to a DFR application:

-       The Union should consider all grievances on the merits regardless of personal feelings toward the Grievor;
-       The Union should always investigate the grievance thoroughly;
-       The Union should process the grievance promptly. This involves keeping a keen eye on time limits making sure not to miss any. These time limits are normally found in the grievance and arbitration procedure within the collective agreement; 
-       The Union should take meticulous notes and keep written records of all meetings and investigations; 
-       The Union should strive to keep the Grievor informed at all times. This includes promptly informing the Grievor if the Union does not intend to pursue the grievance;
-       If the Union decides not to pursue a grievance, the Union needs to have a valid reason to explain their decision;
-       The Union must treat all members of the bargaining unit the same regardless of race, sex, gender, religion, etc. 
-       The Union needs to know that they own carriage of the grievance and after investigating, if the grievance clearly lacks merit and cannot be won, it is within their right to drop it.

Lately we’ve seen a barrage of DFR complaints against Unions. Over the past few years, however, Watson Labour Lawyers has been able to get every case dismissed for our clients. That being said, the Board is taking a hard line with respect to DFR complaints and appears to be sending a message that these complaints should always be taken seriously. 

If you have any such issues, please do not hesitate to contact us as time is always of the essence when defending yourself or your union against DFR complaints. 

The History 

For those of you who are interested, a trade union's duty of fair representation originated within the courts of the United States. In 1944, in the case of Steel v. Louisville & Nashville Railroad Co. 323 U.S. 192, the duty of fair representation was defined as “the duty to represent all employees in the bargaining unit without hostile discrimination, fairly, impartially, and in good faith”. In 1971, that DFR was codified in the provinces and federally.

When first codified, the Board initially interpreted the legislation as a means of traditional litigation against the Union by a disparaged employee. Therefore, if a Union was found to have breached their DFR as per the legislated definition, damages were awarded as the remedy. Damages were calculated based on the Board’s own assessment of the merits of the employee’s grievance[1]. This remedy, however, did not appropriately address the employee’s concerns, as for most employees, the prospect of having a suspension removed or being reinstated was more valuable than any sum of damages. As such, in or about 1973, the Board shifted their paradigm with respect to remedies, from traditional litigation to labour relations. With such a change arose a remedy that was more corrective and less punitive. This change can be seen in Imperial Tobacco Products, [1974] OLRB Rep. July 418, in which the Board discussed that the intention behind the DFR should be given a wide and liberal interpretation in order to ensure that the Board's remedial powers remain meaningful and effective (instead of being purely punitive; such as sending a grievance to arbitration in the place of awarding damages). 

Fast forward to present day, the most common award at the Board with respect to a successful DFR against a Union is for the grievance to be sent to arbitration, with all expenses paid by the Union. Further and in addition, a Grievor who files a successful DFR will likely be able to choose their own counsel, once again, at the expense of the Union. 

Seminars And Educationals

Watson Labour Lawyers offers first-class educationals and training seminars on matters of labour relations, including those pertaining specifically to the duty of fair representation; grievance and arbitration procedures; and note taking. Additionally, we are always open to customize programs based on your membership’s wants and needs. Please contact us for more information.




                                                              



[1] Rutherford's Dairy Limited, [1972] OLRB Rep. Mar. 240, Alfred Compton, [1972] OLRB Rep. Oct. 916

Monday, 16 September 2019

Bill C-86 Changes to Canada Labour Code


Having received Royal Assent in December of 2018, Bill C-86, or A second Act to implement certain provisions of the budget tabled in Parliament on February 27, 2018 and other measures brought several important changes to the Canada Labour Code (the Code) on September 1, 2019. The Bill has also introduced a host of other changes that will be implemented at a date as yet to be determined. These changes are boon for workers and are worth recognizing as a positive step forward in advancing workers’ rights.

Medical Leave: up to 17 weeks of medical leave as a result of (a) personal illness or injury; (b) organ or tissue donation; or (c) medical appointments during working hours.[1]

Leave to Care for Critically Ill Adult: Every employee who is a family member of a critically ill adult is entitled to and is granted a leave of absence of up to 17 weeks in order to care for or support that adult if a health care practitioner issues a certificate.[2]
Leave to Care or Seriously Ill Family: Employees are entitled to a leave of absence from of up to 28 weeks to provide care or support to a family member if a health care practitioner issues a certificate stating that the family member has a serious medical condition with a significant risk of death within 26 weeks.[3]

Court or Jury Duty Leave: an unpaid leave of indefinite duration to attend court as a witness, act as juror or participate in jury selection process.[4]
Hours of Work: New employee entitlements, including:

·       unpaid breaks of 30 minutes for every 5 hours of work. The breaks are paid if the employer requires the employee to be at their disposal during the 30-minute period[5];

·       Subject to emergency postponement or cancellation, a minimum rest period of 8 hours between shifts[6]; and

·       unpaid breaks for breastfeeding, pumping breastmilk or for medical reasons (an employee must provide evidence to support requests for unpaid breaks for medical reasons).[7]

Vacation Pay: The length of continuous service required for three weeks’ paid vacation reduced from 6 to 5 years. After 5 years of employment, an employee will be entitled to 3 weeks’ vacation and the associated vacation pay will increase to 4 weeks after 10 years of employment.[8]

Unjust Dismissals: Bill C-86 will impact the complaint mechanism in place for complaints of unjust dismissal. The Canada Industrial Relations Board (the “Board”) will have the power to reject complaints that:

·       are not within its jurisdiction;

·       are frivolous, vexatious or not made in good faith;

·       have been settled between the employer and the employee;

·       can be resolved by other means that the Board considers should be pursued;

·       have been adequately dealt with by a court, tribunal, arbitrator or adjudicator; or

·       have been suspended and the employee failed to comply with measures specified by the Board within the specific time period.

Equal Pay for Equal Work: a requirement that part-time, casual, temporary, seasonal, and full-time employees receive equal pay for equal work under certain circumstances, as well as the right to request a review of wages.[9]

Reverse Onus: a requirement that an employer have the onus of establishing that an individual is not their employee in event of a complaint of a breach of Part III of the Code;

Minimum age: an increase of the minimum age of employment from 17 to 18 years of age;

Written employment statements: a requirement to provide employees with a written statement containing information relating to their employment that is prescribed by regulation, as well as any updates, within a specified time-period;

Medical documents: leaves of absences may be supported by certificates from a broader class of “health care practitioners” rather than “qualified medical practitioners”; and

Temporary Help Agencies: new requirements and liabilities for employers who use temporary help agencies including equal pay for temporary help agency employees where they are performing substantially the same kind of work as an employee of the employer, as well as limitations on agencies including a prohibition on preventing employees from establishing an employment relationship with a client organization.

Key changes that come into effect as yet to be determined date include:

Family Violence Leave: Division 15 of Part 4 amends the Canada Labour Code to provide five days of paid leave for victims of family violence.
Personal Responsibility Leave: up to 5 days (first 3 days are paid) of leave for personal leave.

Parental Sharing Benefit: Bill C-86 will also introduce a parental sharing benefit to increase the amount of parental leave by up to 8 weeks if that leave is divided among two parents[10].
Introduction of a Pay Equity Act: Bill C-86, Division 14, introduces a new framework for pay equity. The Pay Equity Act (the “PEA”) will apply to federally regulated employers with more than 10 employees, including the federal private and public sectors, the federal public service, Parliamentary workplaces and Ministers’ offices. The PEA requires affected employers to evaluate their compensation practices by establishing and maintaining a pay equity plan.

Notice of Schedule: Employers will need to provide a minimum of 96 hours advance written notice of work schedules. For unionized employees the terms of the collective agreement prevail.  The implementation date of this change has yet to be fixed.[11]

Individual Termination: The termination of employment provisions of the Code (which provide for 2 weeks’ notice of termination) will be replaced with a graduated notice system (akin to the statutory notice provisions of Ontario’s Employment Standards Act). Depending on the number of years of continuous service, employees who have completed at least 3 months of service will be entitled to between 2 and 8 weeks written notice of termination, pay in lieu of notice at their regular rate of wages for their regular hours of work, or a combination of these two options.

Group Termination: Under the Code, employers must give notice of individual termination, as well as group termination in the event that 50 or more employees from a single industrial establishment are dismissed within a 4-week period.  Bill C-86 will supplement the existing requirement to provide up to 16 weeks of written notice to the Minister and employees (and to a trade union). There will also be a requirement to provide affected employees at least 8 weeks’ notice, pay in lieu of notice, or a combination thereof.[12]

Conclusion

Bill C-86 brought many changes to the Code and will continue to bring changes. Unions should become aware of their new rights and obligations and be vigilant in preparing for the changes that are coming. Informing membership of the fresh rights is a key step to defending these rights.



[1] S. 239(1).
[2] S. 206.4(2.1)
[3] S. 206.3(2)
[4] S. 206.9
[5] S. 169.1(1)
[6] S. 169.2(1)
[7] S. 181.2
[8] S. 184
[9] S. 416, Division 14, Part 4.
[10] S. 12(4.01).
[11] S. 173.01(1)
[12] S. 478(2), Bill C-86, amending s. 211 of the Code.

Friday, 13 September 2019







How to Use Space in Negotiations

Space. Such an interesting concept. Different meanings jump to mind for different people, whether the space you live in, being spaced out, space cadets, giving each other space or proximity to others. Humans continue to be fascinated by conquering space frontiers (from the moon to mars and beyond). Heck, even monkeys have been to space. So, perhaps it’s appropriate to chat about spatial consideration in negotiations (or if you want to get fancy … proxemics).

What is proxemics? The branch of study that focuses on how humans view and interpret the use of space, particularly its direct impact on behaviour, communication, and social interactions. You may have noticed that these are all elements in negotiation. So, let’s consider the oft-ignored use of proxemics for improved negotiations. Mastering this concept can mean the difference between commanding a room or shrinking in it, taking control or being overwhelmed.

Let’s start with those all-important personal space zones. What are they?

  • Intimate space: the closest “bubble” of space surrounding a person. Entry into this space is acceptable only for the closest friends and intimates (however temporary or long-term they may be).

  • Social and consultative spaces: the spaces in which people feel comfortable conducting routine social interactions with acquaintances as well as strangers.

  • Public space: the area of space beyond which people will perceive interactions as impersonal and relatively anonymous.

Note that these personal space zones vary by culture, age, population density and even personality. We all have our own comfort zones in terms of personal space. Outside of the personal, compare a large city to a small town. In urban centres you’re squished into subways, bumped on the streets, crammed into elevators, etc. By contrast, in rural communities, it’s less acceptable to bump someone on the street, or sit beside them on a park bench. The size of the personal space zone increases based on the density of the population. Another important example is the cultural differences in personal space. In many large cities in Asia, while riding the subway, it is acceptable for a stranger to fall asleep on your shoulder. In North America, this type of proximity would likely cause some discomfort.

How can you apply this in your negotiations? Consider the negotiating or bargaining space. Here are a few examples:

  • How big is the room? Do you want to create intimacy or not? Do you want a comfortable space for the amount of people involved or not? What’s the temperature? Again, are you striving for a comfortable environment or not?

  • How does the room design impact the discussions? Are there windows, light, and airflow? This becomes an issue after hours of negotiating and be an advantage or hindrance to effective bargaining. You may find yourself or the other party making concessions just to get out of the room.

  • Type of chairs? This one may come as a surprise. Some negotiators try to use proxemics to their advantage by having two variations of chairs in the negotiation room, some set to a taller height than the others and/or some more comfortable than others.

  • Table or room set up? Is the table set up in an adversarial manner, with each party on either side of the table? Although this may seem like the default seating plan, it is not necessarily the most effective for negotiations. Having members of your negotiation team sitting directly beside the opposing team can subconsciously increase harmonization. Also consider alternative room set-ups, whether circle or theatre style depending on the nature of the discussions.

  • Personal space is critical: Using proxemics to understand and identify your zone during negotiations is important to guarantee fluid negotiations. Staying in the social zone is typically recommended. If you are constantly in someone’s personal or intimate zone you will come off as less reasonable, more intimidating, and likely to break down negotiations. Again, however, some see this as a possible tactical move to engage.

  • Engaging the space: Be intentional about your use of space in negotiations. Use the room to your advantage. Most people opt to stay seated, across the table from each other during formal bargaining. There can be great advantage to more fully using the space in a room, including crossing the imaginary divide between the parties. You can draw attention to or from certain persons in a room by how you engage the space. For example, standing up versus sitting; moving to the head of the table or moving around the room; drawing attention to a prop or screen through use of space; having the lead negotiator stand directly behind someone with a hand on their shoulder can increase the visibility and credibility of that team member in that moment; etc. 

  • Additionally, consider personal space when giving a handshake: Regardless of gender, a handshake should be firm, direct, and initiated by you as it shows a willingness to work together. Find a neutral strength handshake and adjust to match the “squeeze” of the other person.

Most people overlook this aspect of bargaining altogether. As a result, you’ll be at an advantage when you bring this skill and awareness to the table. When you’re able to utilize proxemics –using space to your advantage with intention in your negotiations, you elevate your bargaining position, power, influence and results.
Disclaimer:
The content in this handout is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Watson Labour Lawyers does not warrant or guarantee the quality, accuracy or completeness of any information contained in this handout. Additionally, ownership of this handout does not create a lawyer-client relationship.
If you would like more information, or have a specific question you would like to discuss with our Firm, please contact us by email at assistant@watsonlabourlaw.com or telephone (705) 646-5595.

Reproduced from Women On Purpose as part of the Negotiate On Purpose series.           

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