Chapter 4: The Legal Environment

Industrial Relations in Canada

Topic One - Regulatory Framework - Wagner Act History

WAGNER ACT (1935)

  • Prior to the Wagner Act, unions rarely recognized without a violent power struggle in the US, in Canada while received legal recognition through the trade union act of 1872, unions more or less received the same response as seen in the US
  • The state tried to contain labour conflict through Industrial Relations Dispute Investigations Act in 1907 but were unsuccessful
  • A lot of factors include scientific management lead to a decrease in unions in the second half of the twenty century
  • Great Depression gave rise to a new wave of unionism in 1930’s , as the paternalistic model of company unions declined and unemployment surged , workers increasingly distrusted companies to provide basic rights and benefits – thus industrial unions became more active and wanted more industry wide union representation
  • President Franklin D. Roosevelt: issued the National Labour Relations Act or otherwise known as the Wagner Act that protected under federal law the right to organize unions for the purpose of collective bargaining and the right to strike, while the Wagner act model might have been enacted to reduce conflict and aid in the rebuilding of the American economy, it had the effect of legitimizing industrial unionization – thus union density increased from 12.9% to 22.5%


The Snider Case (1925)

  • Landmark court case between Toronto electric power commissioners v. Snider
  • Underlying issue was that whether labor relations legislation would be provincial or federal responsibility
  • Snider case when to British privy council highest court at the time, where argued that federal government had exceeded their jurisdiction in applying the 1907 IDIA to a province, created a shared system of jurisdiction between province and federal
  • Federal government given responsibility over inter provincial industries such as communication, transportation, while provinces given responsibility for all other areas of commerce


P.C. 1003 (1944)

  • Basically the same thing as Wagner Act but for Canada, happened 9 years after the US’s act
  • Created by Prime Minister William Lyon Mackenzie King
  • Except unlike the Wagner Act the P.C. 1003 was not intended to able a permanent measure, only with sustained pressure from organized labour was the 1948 industrial relations and dispute investigation act introduced to replace the P.C. 10003 at the federal level
  • Like in US, union density increased as a result, went from 16% in 1940 to 30% in 1948
  • Since the Constitution is so stupid in Canada just confusing the shit out of everyone with provincial and federal legislation and jurisdiction, each province as a result has their own Wagner Act equivalent


Topic TWO - Union Recognition under the Wagner Act Model

  • Wager Act period of intense conflict between magnet and labour
  • To deal with the conflict wager act provided the following
  • Recognition to lockouts and strikes were declared illegal
  • As a substitute for industrial conflict over union recognition, labour boards were established to provide a process where employees could obtain union recognition by a free expression of support
  • The union that obtained recognition was granted exclusive jurisdiction to represent all employees in a given bargaining unit this is known as the exclusivity principle


Subtopic - labour boards were establisheD


Labour Boards

  • Neutral Labour Relation Boards
  • Serve a vital function in the North American model of I.R.
  • Provide an alternative to the court that is faster and cheaper than courts
  • Structure is tripartite ( which means has three stakeholders: management, labor, and government) all parties appoint a representation and lead by neutral chairperson
  • Main function of the board is to enforce the labor relations act
  • Boards may hear different kinds of cases
  1. Certification and decertification
  2. Unfair labor practices and
  3. Declaration of illegal strikes or lockouts
  • Certification is the process of gaining recognition under the appropriate labour act a key element that defines the Canadian version of the Wagner model is the possibility of automotive certification- that is certification based on the number of signed cards without a formal vote
  • The percent of signs vary based on provinces
  • Two main elements of the recognition process are -
  • Bargaining Unit
  • Unfair labour Practices

Bargaining Unit


Union Duties

  1. Unfair Labor Practices - An alleged violation of the labor relations act
  2. Workers have the right to choose a union, companies and unions are prevented from using intimidation or coercion,
  3. Workers are also prohibited from calling or counselling of illegal strikes or lockouts and the failure or refusal to bargain collectively
  4. Scholars argue that employer penalties are not sufficient, and forced speeches by management might be a violation of Canadian charter of rights and freedoms
  5. To redress these violations, labor board remedies include cease and desist orders for coercion or intimidation, reinstatement if fired for union activities, and orders to resume bargaining if a party refuses to bargain in good faith
  6. Duty of Fair Representation
  7. Union has a duty of fair representation, a legal obligation on the union’s part to represent all employees equally and in a nondiscriminatory manner
  8. An example of a breach of this duty might be a union that fails to support a grievance by an employee because she is a faction of the union that is in opposition to the current union leadership
  9. Research found that complaints against the union were upheld in only eight of the cases, pout of 138 cases, which is 5.8%


Collective Bargaining

Good Faith Bargaining

  • Is an obligation on union and management to make a serious attempt to reach settlement
  • Not easy to define, because rarely tested, normally 75-90% of cases are dealt through mediation, and so no real example of this being done
  • In general unless there is a clear demonstration of antiunion bargaining behaviour, labour boards will not interfere
  • Boards will not hear bad bargaining charges based on reasonableness of offers and counteroffers


Dispute Resolution

  • Wager Act is crafted based on principle of volunteerism: ( the notion that collective bargaining is a private matter between the parties and that government intervention should be kept to a minimum)
  • Under Wagner Act, mediation of disputes only used if either party asks for it,
  • Canadian laws however do not hold volunteerism as a principle, government intervention is considered a mandate especially in cases of industrial conflict,
  • Distinguishing features of Canadian labour law are: ban on strikes during the term of a collective agreement, and mandatory government conciliation or mediation, in the collective bargaining process before a legal strike can take place
  • The later feature is controversial, since the cooling off period according to unions gives management time to prepare before a strike by building up inventories and simply delays serious bargaining, but in terms of policymakers however conciliation gives third party a chance to avoid costly strikes, the government also argues that due to Canada’s dependence on raw material export and need for stability of supply- means that government has to get involved
  • There are jurisdictions in Canada where the conciliation/mediation procedure before a strike has been removed such as in Alberta, BC, Manitoba, Quebec, and Saskatchewan but in place everywhere else


The Canadian government has slowly increased their role in collective bargaining example of this are

  1. Ability of minister of labour to create an industrial inquiry commission,
  2. Inquiry commissions rarely get commissioned, but basically investigate the causes and consequences of industrial actions and strikes, ex, united steelworkers of America during which the Newfoundland government created an inquiry commission in 2010
  3. Order a vote on the last offer in bargaining
  4. Employers complained that unions call strikes without putting the last offer to their members, to accommodate these employer concerns labour laws have made it necessity to permit forced votes
  5. How the process is done varies across Canada, in Newfoundland this right restricted to cases in which a strike or lockout is a possibility, in Ontario request by employer for a last-offer vote must be granted when a strike is in progress, Ontario minister can also ask for a vote if it seems in the public’s interest
  6. Settle a dispute over the first collective agreement by arbitration (a quasi-judicial process whereby a neutral third party makes a final and binding determination on all outstanding issues in dispute)
  7. Canadian labour laws have to be changed on a regular basis, while Wagner has only been changed twice since 1935.
  8. Canadian chances to labour law have generally become more supportive of collective bargaining
  9. In US wining a free election does not necessarily guarantee the security of a union – to correct this problem in Canada eight of the eleven jurisdictions have adopted one of the three models of first contract arbitration , only Alberta and new Brunswick have no provision


  • Three Models According to Abraham
  1. Bad faith bargaining remedy
  2. Complete breakdown in bargaining
  3. No-fault approach
  • Generally a union must establish that an employer has been bargaining in bad faith in order to obtain first contract arbitration – but trend moving away from this


Replacement Workers Laws

  • Quebec and British Columbia have bans on strike-breakers during a strike
  • Ontario, Manitoba, and Alberta prohibit the use of professional strike-breakers
  • Manitoba, Prince Edward Island, and Saskatchewan prevent replacement workers from permanently replacing employees but only after a strike
  • The Federal Canadian Labour Code prevents the use of replacement workers but only when their purpose is to undermine the union rather than pursue legitimate collective bargaining objectives
  • New Brunswick, Newfoundland, and Nova Scotia all do not have any significant policies in relation to this matter


Collective Agreement Administration

  • The Canadian law for collective agreement is very different from that in the US
  • In all Canadian jurisdictions strikes are illegal during the term of a collective agreement – the Wagner Act contains no such prohibition
  • Reason strikes are restricted is due to labour peace provision of the law, but not all scholars agree that this results in labour peace in Canada- as in Canada there have been a relatively high number of illegal strikes during the term of the agreement
  • The labour peace provision is also known as deemed provision of the labour law, because the law deems it to be included in every collective agreement
  • Typically even if labour and management choose not to include an arbitration provision in the collective agreement, the law puts it in the agreement as if the parties had agreed to it
  • The arbitration laws and matters have greatly changed and grown in recent years to include things like human rights, health and safety, employment equity, pensions, since world war 11

In summary Canadian laws define an important public policy role for arbitrators in two respects

  1. Arbitration, as a strike substitute procedure, gives arbitration a public policy role in setting all disputes during the contract terms- hence labour peace
  2. Labour legislation and arbitration jurisprudence have given arbitrators in increasingly important role in interpreting relevant employment law (human rights, employment equity, health and safety, etc.)


Role of the Charter

  • Canada as part of the constitution of 1982: made labour as a provincial responsibility and created a charter of rights and freedoms
  • Since constitution requires that all law follows the charter, most did not know if charter would have a negative or positive effect on labour law
  • But there is a reasonable limit clause in the charter as part of section 1
  • Reasonable limits as can be demonstrably justified in a free and democratic society
  • Governments can invoke the notwithstanding clause


Right to Strike

Early labor trilogy (three important cases)

  1. Restrictions on the right to strike in Alberta
  2. Federal government wage controls
  3. Back to work laws in Saskatchewan and various unions – in all three found that the freedom of association did not include the right to strike and bargain
  • The early labor trilogy resulted in some negative views of Charter’s ability to protect workers’ right to freedom of association.
  • More recent cases have produced more positive results using the charter


Union Dues

  • Two cases Lavigne 1991, and Abood case 1977, both involve teachers objected to their union dues going to political causes they did not support.
  • In Abood case - U.S. courts ordered the union to rebate dues, but Canada did not: shows the differences between the two countries legal processes
  • Canadian courts (Lavigne decision)
  • Upheld the restriction on freedom of association
  • Unionism includes legitimate social and political goals
  • Beyond collective bargaining.


Picketing

  • Secondary picketing is part of freedom of expression
  • Pepsi-Cola case ( read to learn more, page 104)


Union Recognition (1994)

  • Trade union and collective bargaining rights extended to agricultural workers through the agricultural labour relations act of 1994,
  • There’s a bunch of information here on page 105-106: no clue if this is important just read


Political Activity (1991)

  • In 1991, the supreme court upheld a challenge to restrictions on the political activities of civil servants
  • Under section 33, of the public service employment act it was illegal on threat of dismissal to engage in work for on behalf of a political part of candidate- court found that the restrictions violated freedom of expression under 2 (b)


New Direction (2007)

  • Recent cases in comparison to the early cases that were discussed above, show a more positive outcomes for labour , while former cases limited the rights to strike, the latest cases strengthen collective rights, expanded picketing, and freedom of expression and gave new meaning to union recognition and freedom of association
  • Collective bargaining a constitutional right
  • Freedom of association guarantee
  • RCMP allowed to be joining unions, and participate in collective bargaining, previously the RCMP had consultation rights only, with management having the final say in all conditions of the employment


A Right to Strike

  • On January 30, 2015, supreme court constitutionalized the right to strike in Canada by concluding in 5-2 decision that freedom of association includes this right, this completed the reversal of the trilogy decision in 1987
  • In another case, 5-2 ruling by supreme court where Wal-Mart violated a section of the Quebec labour code that prevents an employer from changing the conditions of employment without the unions consent during the negotiation of a first collective agreement


Employment Standards & Employee Rights

Employment Conditions

  • Commonly known as employment standards and employment rights although these two categories cannot be easily separated.
  • Conditions are normally established by legislation.
  • Hours of Work
  • Overtime
  • Scheduling of Hours
  • Coffee and Meal Breaks
  • Exclusions
  • Human Rights
  • Health & Safety
  • Pay & Employment Equity


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