Friday, 21 June 2013

Bill C-377 Stalled in the Senate

Bill C-377, which aims to amend the Income Tax Act (ITA) and create stringent reporting requirements for labour organizations, was passed by the House of Commons in December, 2012 and is now the subject of hot debate in the Senate. So heated is the debate that even some Tory members are uncharacteristically supportive of the Liberals and the NDP in their efforts to amend or block the Bill[1].

Many see the bill as an attempt to covertly use the Canada Revenue Agency to attack unions. It is a hugely intrusive bill that seeks to force labour unions to publicly disclose much of their internal information, including salary details. The reporting requirements the bill seeks to impose would be time-consuming and costly not only for unions but for tax-payers across the country. Scrutinizing unions would require the CRA, by its own estimate, to take on additional staff and require roughly $2.5 million in operating funds. The CRA would also require an additional $800,000 in funding per year for this undertaking. 

The bill is wholly lopsided in its effects, encumbering unions in a sea of bureaucratic paperwork without likewise troubling employers. As Senator Hugh Segal has pointed out, a proposed subparagraph to be included in the amendment to the ITA would require unions to declare monies spent on labour relations activities, “…with no concurrent disclosure imposed on the management side.”[2]

Why the CRA needs to be involved in the expenses unions incur for labour relations activities is either left vague by proponents of the Bill or is couched in antipathy toward mandatory union dues and thinly veiled right-to-work rhetoric.

Further, there is no like requirement being placed on other groups that engage in political expression. Only labour relations activities are targeted. According to NDP MP, Yvon Godin: “…with Bill C-377, the Conservatives are going after unions the same way the IRS went after the Tea Party in the United States.”[3] Indeed, the bill appears designed to damage unions. The Canadian Bar Association has acknowledged as much, noting that Bill C-377 may infringe the Charter-protected rights of unions:

The Bill interferes with the internal administration and operations of a union, which the constitutionally protected freedom of association precludes, unless the government interference qualifies as a reasonable limitation upon associational rights. It is unclear from the Bill what the justification is for these infringements.

The CBA has also raised a red flag regarding the underhandedness of the Bill, stating that it: “could have a serious impact on the operations of labour unions, yet these processes are embedded in amendments to the Income Tax Act”, concluding that “it is inappropriate for operational restrictions to be brought forward as amendments to taxation legislation.”[4]

To highlight the absurdity of empowering the CRA to single out unions in this way, Senator Segal posits a chilling question: “If CRA is to become the political judge of what expenses are appropriate, what are the guiding criteria?” He then notes that “the bill is silent on that.”[5] With the recent IRS scandal dominating the American political landscape, we must all be wary of the powers of taxation authorities to stifle political expression.This goes to the heart of a properly functioning democracy. If passed, this bill will change the democratic face of Canada that we all hold so dear. And we will all be the poorer for it. 

One of the goals touted by Conservative and other supporters of this bill is transparency. If this were indeed the goal one would think the Conservatives would be more transparent in their motives for seeking to amend the ITA. Surely, that’s the least Canadians have a right to expect from their government. For now Bill C-377 is stalled in the Senate, and this is exactly where it belongs.

Wednesday, 19 June 2013

Random Testing and the Limits of the Management Rights Clause

It’s a hallmark tenet of collective bargaining that if an employer aims to discipline an employee it must first have reasonable cause for doing so. Even then an employer can only impose a workplace rule with disciplinary consequences “if the need for the rule outweighs the harmful impact on employees’ privacy rights”.

Still, employers have been known to try to get around these restrictions via the management rights clause. Such employers conveniently interpret the management rights clause as giving them carte blanche to make rules in the workplace, often without any consultation with the union. Rules requiring drug and alcohol testing are often the result of such interpretation.

But as a recent Supreme Court decision shows, if an employer in your workplace has adopted a policy of conducting random drug or alcohol tests, it may be in violation of the law.

In Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd[1] the Supreme Court recently dealt with the scope of an alcohol testing policy imposed under the management rights clause at a kraft paper mill. The employer unilaterally adopted a policy that allowed the company to give workers random and unannounced alcohol tests. The company did not negotiate with the union before adopting this policy. 

The policy contained a random alcohol-testing component for employees who filled “safety sensitive”, or “dangerous”, positions. Under the policy, ten percent of employees per year were to be randomly selected for a breathalyzer test.  A positive test for alcohol could include disciplinary measures as severe as dismissal. If a worker refused to take the breathalyzer it was grounds for immediate dismissal.

When the company randomly selected an employee who had shown no signs of having consumed alcohol, the union grieved the policy. The legal issue for the Court was the interpretation of the management rights clause of a collective agreement. In other words, how much power does an employer have to unilaterally make policy decisions outside of the collective agreement? What limits, if any, are there to the scope of the management rights clause?

Generally, if an employer wants to use the management rights clause to unilaterally impose policy measures and workplace rules any rule or policy so imposed must be both reasonable and in accord with the collective agreement[2]. Reasonableness limits the scope of management’s right to impose unilateral policies.

An employer cannot discipline or dismiss an employee without just or reasonable cause. Just or reasonable cause is a crucial protection for unionized workers against an employer who would yield its power in unsavoury ways. It goes to the very heart of workplace safety and job security. In this case, the employer didn’t have reasonable cause to test the employee who grieved. The employee was simply randomly selected as per the employer’s policy.

Besides failing to satisfy the reasonable cause requirement, the policy utterly failed to respect the privacy rights of workers. Compelling a worker to take a breathalyzer is an invasion of the workers’ right to privacy. This privacy is “essential to the maintenance of his human dignity”[3].

The employer’s policy of random alcohol-testing required employee’s to submit to random breathalyzer tests or suffer potentially severe consequences. The policy not only failed to satisfy the reasonable or just cause requirement that employers have to meet, it unjustly harmed the dignity of the workers. The Court overturned judicial review decisions from the lower courts and restored the arbitration decision that had allowed the grievance.



[1] 2013 SCC 34. (Irving).
[2] This is often referred to as the “KVP Test”.
[3] R. v. Dyment, [1988] 2 S.C.R. 417, at pp. 431-32), cited with approval in Irving at para 50.

Tuesday, 18 June 2013

ETFO makes Equitable Gains

This has been a harrowing year for teacher’s across the province. Bill 115 effectively stripped teachers’ unions of their fundamental Charter rights and the larger public was fed a stream of misrepresentations designed to turn sympathies against the unions and their efforts to protest the Bill. But the unions wouldn’t be cowed into submission by these tactics. They stood in solidarity and fought for their rights. And it is a fight that has been well worth the while.

The worth of this solidarity has been on display recently. Through lengthy negotiations with the Liberal government, the ETFO has reached a new deal. The agreement is still tentative, but could go a long way toward securing ETFO members the respect they deserve.

The deal would freeze wages, but when the next contract rolls around, ETFO teachers would be entitled to a 2% raise, at a minimum. The 2% hike in the next contracts will go to redress a long-standing wage disparity between ETFO members at public school boards and teachers at other school boards. The wages of ETFO members is presently 2% lower than their counterparts working in the French and Roman Catholic school boards[1].

Of course, this is a ludicrous situation. The value of a teacher is the capacity to educate, to mentor, to inspire. A teacher’s value does not flow from the language of instruction or from religious affiliation. To hold otherwise is to condemn public school teachers to a second-class status among their peers. Finally, the government is seeing that such inequitable valuations are an embarassment to the education sector. Education Minister Liz Sandals has admitted that there is no good public policy reason for this difference and has stated the difference will be corrected by the next contracts in September, 2014[2].

Under the new deal ETFO members would also receive an enhanced retirement gratuity, would see an increase in maternity leave from 6 weeks to 8 weeks, and the creation of a health and safety task force[3].

Ms. Sandals hopes this new development will help to repair a relationship with the education sector that some believed had been irreparably damaged by the passage of Bill 115. This may in fact be a step in the right direction. Despite injustices perpetrated the Liberals over the past year, the unions have come to the table and negotiated with the government in good faith. Though the Liberals are aware of the damage they’ve done to labour relations with teachers, they have sldo been made aware of the reasonableness of the unions. By negotiating with the government the unions have demonstrated a desire to come to an understanding that the government may not have had any right to expect. Some may call this taking the high road. Whatever you call it, it certainly looks like the ETFO are doing what’s right not just by its members, but by the Ontario public as well.