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labour frameworks

Part 1 of exam (usually)
Labour Law
NS TUA, s. 4 – act applies to provincial private sector
No technical irregularity will invalidate proceedings under the act (s. 8)
Trade Union definition
Trade Union defined in 2(1)(w) and IMP lays out the minimal requirements:
1) Constitution and rules or by-laws
2) Must be able to prove its purpose
3) Must prove itself to be an organization
4) Must be made up of employees
According to MPAO s. 2(d) of Charter protects:
1) Right to join with others and form associations
2) Right to join with others and pursue constitutional rights
3) The right to join with others and meet on more equal terms, the power and strength of
groups and their entities
Employee definition
Therefore, Trade Unions can only be made of employees
2(2) excludes managers and professionals
Important factors in determining are nature and degree of control (Winnipeg Free Press)
Onus on employers to show that supervisors are managers and therefore excluded from
collective bargaining (Children’s Aid Society)
Are they employees for the purposes of the TUA?
-Full-time employees (presumed in 2(k)
-Dependent Contractors (Winnipeg Free
-Staff dependent upon an industry of which
the employer is a part (Egg Films)
-Can include part-timers if they work
regularly and continually (Heather Hotel)
-off-list employees who work 40% as
scheduled core staff during one-year period
(Trade Centre)
-Managers (excluded in 2(2) – test in Quebec
-Confidential employees (excluded 2(2)(a) –
test in Southam)
-The employer (cannot have employer
dominated union – Royal Oak, 25(15))
-Casual employees not included, ie they don’t
work regularly and continually (Heather
-Replacement Employees during a
strike/lockout (Kelly’s Ambulance)
RE Quebec Telephone (distinction between managers and supervisors who are allowed to be part
of bargaining unit):
1) Power to decide
2) Typical managerial functions
3) Extent of authority in financial matters
- Look to prime functions of job and right to administrative control (Amherst)
Employer Definition
Employer is anyone who employs more than one employee (2(1))
Board has power to determine who is an employer (19(a))
Test to determine employer-employee relationship (Pointe-Claire):
1) Legal subordination
2) Performance of work and
3) Renumeration
Related Employers:
Focus on degree of control of franchisor over franchisee (in such contexts) (White Spot)
Corporate veil can be pierced by board if entities are under common control under such
factors to determine common employers (Fundy Drywall/s. 21):
1) There is more than one activity or business
2) Such activities or businesses being carried on by more than one corp, firm, syndicate
or association
3) Such activities or businesses are associated or related
4) The multiple activities/businesses carried on by multiple corps/firms are under
common management or under common direction, including direction of the
If this is the case, the board may exercise discretion under s. 21
Successorship and contracting out:
S. 31(1) – unless board decides otherwise, principle that if conditions are met,
successorship is binding
Attempts to contract out may invoke a successorship (31(2))
Onus to prove there was not contracting out (31(3))
The term sale in the act is broad, it includes leases, transfers and other dispositions (Tiger
Board determines sale, transfer, etc (19(1)(j))
Successorships oftentimes invoked when the employer is deemed to contract out by the
2(1) definition – in other words the employer contracts work out to someone other than
employees – onus on employee to prove contracting out took place (Hanias) and on
employer to show legitimate business purpose (31(3))
Contextual factors to determine current employer (Lantic):
 Exercise of discretion and control
 Burden of renumeration
 Imposing of discipline
Hiring employees
Authority to dismiss
Perceived to be employer by employees
Intention to create employer/employee relationship
Bargaining unit delineation
Only one certified bargaining agent allowed – defined in section 2(1)(c)
A unit, under 2(1)(x), is a group of two or more employees drawing on the importance of
the distinction of who is in and who is out
Under 25(14) – the board must look to the community of interest among employees in the
proposed unit in such matters as work locations, hours, working conditions and methods
of renumeration
Two methods of recognition:
1) Voluntary Recognition:
under 30(1) the employer and trade union can come to an agreement so long as a) the
employer recognizes the union’s exclusive right to bargain for its employees and b) the
bargaining unit itself is defined
Cannot occur in cases where union employer dominated (a), another union is already
certified (b), or the union does not represent a majority of the employees (c)
2) Application for Certification
13(1) – all employees have a right to be a member of a trade union (constitutional
according to MPAO)
23(1) – need at least 40% support from employees and application can occur anytime if it
is a first time application (23(2))
For raids, the open seasons are:
 Certified agent without collective agreement after 12 months (23(3))
 Less than 3 year agreement, during last 3 months (23(4))
 For a greater than 3 year agreement, during last three months of third year and last
three months of each subsequent year (23(5))
25(1) – board takes a vote with respect to wishes of employees in unit during normal
work hours (2)
25(8) – if majority of votes cast are in favour of unionization, union will be certified
25(4) – the board ultimately determines whether the applicant unit is appropriate and
which employees should be excluded
Union cannot be employer dominated (25(15))
Union cannot be discriminatory (25(15), Federbush)
If Union’s application for certification is dismissed, three month time bar will be imposed
(NSLRB Policy on Time Bars)
Is the Unit appropriate?
Since the board has power under 25(4) to determine if the unit is appropriate, case law
has developed around it
Board considers the community of interest of employees as they relate to (25(14)):
 Work location
 Hours of work
 Working conditions
 Methods of renumeration
Under the 25(14) considerations, the focus should be on the employees, these factors are
non-exhaustive and work location is a relevant factor (Michelin)
All that is required, at a minimum, is a sufficient community of interest and no serious
labour relations problems for the employer (Metroland)
Michelin amendment (s. 26) – when an employer operating interdependent locations
requests, the appropriate unit is a combination of locations
Very contextual as CIBC and TD show, sometimes a single location unit is appropriate
and sometimes a cluster unit is
Tendency to prefer a single, all encompassing, unit (Paul Weiler)
Determination of Employee Support
NS uses a quick vote system under section 25 as designed by Prof. Christie
Vote occurs within 5 days, has a primary reliance on membership evidence on the date of
certification, under attached TUA regulations 10, with a brief period for change of heart
If application unsuccessful, board has authority to designate the time that must elapse
before a new application is filed (25(16)
Application to revoke certification found in s
When a certified unit is at least a year old, there is no collective agreement or the open
season requirements are met (under 23(4) or (5)), an application for a new vote can be
made to determine wishes of bargaining agent and board may revoke if:
 (a) a significant number of the union allege they are not adequately represented
 (b) the union no longer represents the majority of the unit
Under 30(4) – board can deal with voluntary recognition as if the union emerged through
regular certification process
Procedure (Courtesy Chrysler #1):
 Must demonstrate that the union is not adequately fulfilling its responsibilities or
union does not have majority support – establishes a prima facie case
 If threshold met, vote will be held according to board’s discretion
 Union can rely on certification until a majority is shown – what matters is majority of
votes and not a majority of the union
Test to determine employer interference upon decertification (Courtesy #1): Conduct by
employer which reasonable employees would infer as employer support for
decertification and which affect the credibility of the vote
Decertification is an important device of employee choice under charter guarantees
according to MPAO
Part 2 of Exam (Usually)
Negotiation of a Collective Agreement
s. 2(d) guarantees the right to a process not a particular outcome (Meredith)
Collective agreement binds both the union and employer (41)
Begins with a notice to bargain by either party either pursuant to s. 33 once certified and
no agreement in place or s. 34 two months prior to expiry of a collective agreement
already in place
Within 20 days from notice, the employer and bargaining agent must meet and make
every reasonable effort to conclude a collective agreement (35(a))
Every reasonable effort must be made to conclude and sign it but hard bargaining is
allowed (Radio Shack)
Employer cannot change working conditions during the bargaining process until a new
Collective Agreement is signed or if there is failure 14 days after filing of report to
conciliation officer or 7 days following the filing of a report by a conciliation board if one
is appointed (“freeze”) (35(b))
Minister can appoint a conciliation officer whose report should be filed within 14 days of
appointment (37)
When initial conciliation fails, and both parties apply, minister appoints a conciliation
board 14 days after report (39)
Bargaining Freezes
Come out of s. 35(b)
Frozen conditions need to be interpreted liberally, reasonable expectations of employer
and employees need to be considered in respect to them (Zinck’s Bus)
Bargaining freeze expires as soon as legal strike position (Paccar)
Purpose of bargaining freeze is to set a baseline from which bargaining can proceed, aske
whether the proposed action is typically the subject of collective bargaining, therefore,
would changes disrupt or distort the bargaining process? (Royal Ottawa)
Duty to bargain in good faith
Contained within s. 35(a)
Board has power to determine whether this duty has been complied with (19(1)(f)
Two aspects of duty (Royal Oak):
1) Duty to bargain in good faith (subjective standard)
2) Party must make every reasonable effort to reach a collective agreement (objective
Usually around disclosure of items
General duty to put all relevant items into dispute during the early stages of the
bargaining process (Graphic Centre)
Cannot withhold information relevant to collective bargaining without reasonable
grounds (Noranda)
Can even be considered an unfair labour practice if party fails to disclose (Noranda)
Party allowed to follow statutory minimum, hard bargaining allowed, only an issue when
employer has a track record (Radio Shack)
Signs of bad faith as opposed to hard bargaining (Canada Trustco):
 Patent unreasonableness
 No business justification
 Retreat from previously agreed position
 Untimely insertion of new issues
No duty to disclose plans that have not yet ripened to at least de facto decisions (Buhler)
Strikes and lockouts
Strikes defined in s.2(1)(v) and are now constitutionally protected (Sask. Fed of Labour)
Lockouts defined in 2(2)(o)
Procedural requirements (47(1)):
 (a,b) properly commenced collective bargaining and failure to conclude a Collective
Agreement and either
 (c) conciliation officer failed to bring about a collective agreement and 14 days have
elapsed since report
 Or (d) conciliation board failed to bring about a collective agreement and 7 days have
elapsed since
47(2) – no party can strike 6 months after conciliation process, restarted process required
47(3)(a) – secret vote required for strike
47(3)(b) – 48 hours notice to minister for both strikes and lockouts
If employees and employer vote in favour of acceptance of the conciliation report, there
can be no strike nor lockout (49(1))
Board has cease and desist authority during a strike or lockout
Either broad definition, like that of disrupting an employer’s operation (Graham Cable),
or objective definition such as the requirement for cessation of work in combination with
a common understanding (Longshoreman’s) – nevertheless many broad actions can
constitute a strike
Replacement workers ok but must be temporary (35, 53)
Lockout is ok so long as there is no anti-union-animus (ie, cannot be a permanent
lockout) (Westroc)
Rotating lockout to counter rotating strike ok (Canada Post) – proportionality
During lockout, the freezes are no more, changes to conditions of employment are ok so
long as there is no anti-union-animus
Primary and Secondary Picketing
Definition of picketing (Pepsi):
1) Physical presence of persons called picketers
2) Conveying information
3) For the purposes of persuasion
Expressive component (Pepsi):
1) Seeking support from employees, clients or the public
2) Social and economic pressures on employer and others
Secondary picketing presumptively ok so long as there is no wrongful conduct (Pepsi
overturning Hersees doctrine)
Test for injunction (Cancoil):
1) Prima facie case (ie there needs to be property damage, personal injury, obstruction,
2) Irreparable harm (where monetary damages insufficient)
3) Balance of conveniences favours injunctive relief
Jurisdiction – labour board has jurisdiction over industrial regulation of picketing, courts
have jurisdiction over illegal acts committed in the course of picketing (Canex)
Rights and Obligations of Strikers
Striking and locked out employees are still employees under the act (14) and cannot be
deprived of any term or work conditions because of involvement in a legal strike (Can
Air Line Pilots)
Board has authority to determine whether or not someone has ceased to work as result of
a strike or lockout in contravention with the act (19(1)(e))
Right to strike is protected by charter (Sask Fed of Labour) although statutes lag behind
Replacement employees are recognized as employees but are outside the bargaining unit
(Kelly’s Ambulance)
Preferential hiring of replacement workers after strike not allowed (Can Air Line Pilots)
Employer cannot discipline an employee for refusing to do the work of a legally striking
employee (53(3)(c))
Employer cannot deny pension rights or accrued benefits to an employee for a legal strike
or a wrongful dismissal (53(3)(d))
Employer can discipline employees after strike or lockout so long as activities were
outside the normal ambits of participation in strike (Rogers)
Conciliation Reports
Minister can appoint a mediation officer at any point (40(1))
Conditions for appointing a conciliation officer (37):
 A) bargaining has not commenced in the required time,
 B) bargaining has started and a request by either party is made or
 C) ministerial discretion
Conciliation reports, due within 14 days of appointment, must include (38(1)):
 A) matters agreed upon
 B) matters not agreed upon
 C) any other relevant information
 (2) parties must be advised of the report and it’s the notice which commences the
countdown to strike
Stuff Relevant for both Parts of exam (usually)
Unfair Labour Practices – employer
Employers cannot either participate or interfere with formation, administration or
representation of employees of a trade union (53(1)(a)) nor contribute financial or other
support thereto (53(1)(b)) – no anti-union animus required (Zinck’s Bus)
Other prohibited activities under 53(3):
a) Discriminate in terms of employment because a person is or was a union member
(requires anti-union animus Zinck’s Bus and burden shifts to employer under 56(3) to
b) Impose contractual restraint on employee rights
c) Imposition of penalties for refusal to strike break
d) Denial of accrued benefits during a strike
e) Intimidate union membership or activity (requires anti-union animus)
f) Impose penalties for union activities
g) Bargaining with another uncertified union
53(1)(a) can be justified on a balancing test which weighs impact on union activities vs.
sufficient, legitimate business justification as they relate to employer free speech under
58(2) (CBC)
For breaches of 53(1)(a) – only when the result of a CBC style balancing process leaves
the scales in balance will the board consider anti-union motive
53(1)(a) can also be triggered by an omission
Also, under 53(1)(a) – employer cannot interfere with solicitation on property but can
interfere with union campaigning during working hours (54(d)) – cannot be an absolute
ban during working hours says Zinck’s Bus
In some cases, if unfair labour practice is found, board can order remedial certification if
(25(9), Michelin):
1) Unfair practice must be “so significant”
2) Vote does not reflect true wishes of employees
3) Original 40% threshold met
4) It is under board’s discretion
49(3) – discontinuance of operations is not in itself an unfair labour practice
Unfair Labour Practices – Union
Section 54:
a) Claiming bargaining rights without certification
b) Interference with employer’s bargaining agent
c) Campaigning without consent during working hours
d) Forcing firings for infractions of union discipline
e) Discrimination in union membership/discipline rules
f) Penalizing/intimidating others for lawful acts
No coercion to become union member (58(1))
No certification where union vitiates vote (25(1))
Cannot threaten economic sanctions for not joining applicant union (Canadian Fabricated
If union commits an unfair labour practice, board may dismiss application
S. 78 gives the Labour board broad remedial powers
Board only has remedial power, cannot award punitive damages (Royal Oak)
Test for an unreasonable remedy (Royal Oak):
1) Remedy is punitive
2) Remedy infringes charter
3) No rational connection between the breach, its consequences, and the remedy
The Courtesy Chrysler Decisions are great examples of the remedies that can be given
under s. 78
Duty of Fair Representation
Employee may present a personal grievance to an employer at any time (15)
Unions that discriminate will not be certified (25(15))
Certification gives unions exclusive authority to negotiate on behalf of unit (27)
Union cannot act in a manner that is arbitrary, discriminatory or in bad faith (54A)
Employees can begin civil action to enforce a pre-employment contract (Goudie)
No absolute right to have grievances arbitrated exists (Rayonnier)
Duty of fair representation means the union cannot represent employees in a manner
which is arbitrary, discriminatory or in bad faith (Judd)
Union is not acting arbitrarily if (Judd):
1) It ensures that it is aware of the relevant information
2) It makes a reasoned decision (rational connection between relevant considerations
and decision – giving reasons alone is often enough)
3) Union doesn’t carry out representation without blatant or reckless disregard (not
including mistakes)