Table of Contents
Biographical Notes vii
Acknowledgements vii
Executive Summary ix
Section I - Introduction
Chapter 1-The Scope, Methodology, and Limits of the Review
The Mandate of the Task Force
Our Methodology
The Limits of Legislative Reform
The Limits of Our Review
Chapter 2-The Legal Framework
The Development of Federal Labour Legislation
The Canada Labour Code
The Federal Jurisdiction for the Purposes of Part I
Chapter 3-The New Labour Relations Environment
The Changing Workplace
The New Involvement of the Parties
The International Environment and Obligations
Chapter 4-Considerations for Reform
Finding Balance
Collective Bargaining in the New Economy
The Politicization of Labour Relations
Criteria for Reform
Section II-Labour Relations Processes
Chapter 5-The Scope of Collective Bargaining
The Preamble to the Canada Labour Code, Part I
Access to Collective Bargaining
First Nations Labour Relations Questions
Chapter 6-Representation Processes
Certification and Decertification
Bargaining Unit Reviews
Sale, Lease or Transfer Provisions
The Impact of Commercialization of Government Activities
Chapter 7-Multi-Party Collective Bargaining
The Context of Multi-Employer Bargaining
Designation of an Employers' Organization
Geographic Certification
Multi-Employer Bargaining in the West Coast Longshoring and Grain Handling
Industries
Sectoral Bargaining
Chapter 8-The Bargaining Cycle
Collective Bargaining under the Current Canada Labour Code
Technological Change, Material Change and Mid-Term Contract Negotiations
Chapter 9-Rights and Obligations During a Strike or Lockout
Replacement Workers
How the Code Regulates Strikes and Lockouts
Employee Status, Discipline and Remedies
Certification or Decertification during a Strike or Lockout
The Regulation of Picketing
Rights of Bargaining Unit Employees during a Strike or Lockout
Replacement Workers: Minority Opinion (Rodrigue Blouin)
Chapter 10-Essential Services
The Right to Strike and to Lockout
Maintaining Essential Services
Public Interest Disputes
Interest Arbitration and Final Offer Selection
Frequent Use of Back-to-Work Legislation
Section III-Administering the Code
Chapter 11-Advisory Committee on Labour Relations
Chapter 12-The Structure of the Canada Labour Relations Board
The Present Structure and Organization of the Canada Labour Relations Board
Restructuring the Board
Chapter 13-Powers of the Canada Labour Relations Board
Regulation-Making Powers
Power to Compel the Production of Documents
Pre-Hearing Conferences
Power to Issue Interim Procedural and Remedial Orders
Power to Abridge Time Limits
Power to Receive Determination Applications
Administrative Delegation and Power to Sign on Behalf of the Board
Power to Dismiss Applications That Fail to Raise Sufficient Allegations
Remedial Powers
Rights to Standing on Judicial Review
Enforcement of Board Orders
Protection for Board Members' Notes
Teleconference and Video Conference Hearings
Alternative Dispute Resolution Options
Chapter 14-Mediation and Conciliation Services
Chapter 15-The Arbitration Process
Mediation
Arbitration
Expedited Arbitration
Appointing Arbitrators
Powers of Arbitrators
Section IV-Beyond Part I of the Canada Labour Code
Appendices
Appendix A-Terms of Reference
Appendix B-Public Consultations and Written Submissions
Appendix C-Academic Round Tables - List of Participants
Appendix D-ILO Conventions Ratified by Canada
Summary of Figures and Tables
Acknowledgements
The members of the Task Force would like to thank Michael McDermott, Senior
Assistant Deputy Minister, Legislative Review, Human Resources Development
Canada, for his major contribution to the review, both as facilitator for the
discussions of the labour-management consensus group, and as an invaluable
source of information and guidance on labour relations issues.
We thank the staff assigned to the project, Debra Robinson, Johane Tremblay and
Pierre Sioui Thivierge for their research and organizing assistance and Micheline
Hérault, Hélène Dubois-Beauchamp and Mireille Prescott who provided
administrative and secretarial support.
We also thank Ginette Côté and her talented team of professional translators. We
acknowledge the research contributions of Thomas Kuttner, Margot Priest, Robin
Ward, Fred Long, Gordon DiGiacomo, Garfield Clack, and Stan Psutka and others
from Human Resources Development Canada who helped with this report.
Special thanks to Ian Sadinsky who edited and oversaw the publication of this
report.
Finally, we thank each other. It was a privilege to work together, to exchange
views, and to become friends.
Biographical Notes
Andrew C.L. Sims, Q.C.
Andrew Sims is a practising lawyer in Edmonton. His practice includes labour
arbitration, dispute resolution, tribunal management advice, and non-partisan
labour relations advice and adjudication.
As Chair of the Alberta Labour Relations Board from 1985 to 1994, and Chair of
the Alberta Public Service Employees Relations Board from 1993 to 1994, Mr. Sims
adjudicated major disputes in both the private and public sectors.
Rodrigue Blouin
Rodrigue Blouin holds a Doctorate in Law, and is a full professor in the Industrial
Relations Department of Laval University where he has been teaching since 1974,
primarily in the areas of labour law, grievance arbitration and alternative systems
of professional relations. Mr. Blouin has published widely in these areas, and has
also been a grievance arbitrator since 1975.
Paula Knopf
As an arbitrator, fact-finder and mediator, Paula Knopf has been active in labour
relations dispute resolution in both the public and private sectors since 1980. She
was appointed Chair of the Education Relations Commission and of the Colleges
Relations Commission of Ontario in 1991, and has served as a part-time Vice-Chair
of the Ontario Labour Relations Board and of the Public Service Grievance
Settlement Board since 1984.
Executive Summary
Our mandate was to review Part I of the Canada Labour Code, which is the law
governing collective bargaining for private sector employers and unions within the
federal jurisdiction. These include Canada's railways, airlines, broadcasters,
banks, grain and shipping industries, among others. We were asked to look for
improvements to the Code, at the structure and functioning of the Canada Labour
Relations Board (CLRB), and generally at ways to ensure that the Code works well
and equips Canada for its future, in an increasingly competitive world.
The review was conducted within a short time frame, relying upon public hearings
and extensive submissions from interested parties. A consensus process between
high level representatives of labour and management secured agreement on
many important points. Their points of agreement appear throughout our review.
Work itself is changing as governments deregulate and as competition increases.
This same deregulation and increased competition is already transforming federal
labour relations, as old bargaining patterns give way to new relationships that are
sensitive to competitive pressures. We must be careful to avoid re-regulating
through labour legislation, instead letting this process continue to unfold through
the free market economy and through free collective bargaining. Changes in
technology, new attitudes to management, new approaches by organized labour
are all transforming labour relations within the workplace. Despite high
unemployment and considerable dislocation of employees, there is a gradual
move to a more collaborative relationship between labour and management.
Our approach has been to seek balance: between labour and management;
between social and economic values; between the various instruments of labour
policy; between rights and responsibilities; between individual and democratic
group rights; and between the public interest and free collective bargaining. We
seek a stable structure within which free collective bargaining will work. We want
legislation that is sound, enactable and lasting. We see the too frequent swinging
of the political pendulum as being counter productive to sound labour relations.
We looked for reforms that would allow labour and management to adjust and
thrive in the increasingly global workplace.
We recommend some technical changes to improve access to the Code, and to
update the methods used to select, change or revoke union representation,
although we conclude generally that process improvements are more important in
this area than substantive legislative change.
In considering questions about multi-party bargaining, we focused mostly on
labour relations on the waterfronts on our West and East Coasts. We benefited
from the report of the West Coast Ports Inquiry Commission who reported towards
the end of our mandate. We received many submissions concerning their
recommendations which deserve further consultation. The waterfront involves a
great deal of multi-employer bargaining. The West Coast Inquiry recommends
further steps to consolidate this bargaining. While this is a difficult area, we raise
the question of whether a less regulated structure with more competitive
elements might not provide a better solution to protect the interests of those who
depend upon the efficiency and reliability of our ports.
We recommend substantial changes to the bargaining cycle, introducing some
new processes and making others more flexible and most importantly, less timeconsuming. Bargaining in the federal sector has been taking too long to complete.
We recommend shortening conciliation to a one-step process of flexible content
taking no more than 60 days. We also recommend introducing a mandatory secret
ballot strike vote of all affected employees and a 72 hour strike or lockout notice.
A number of recommendations concern rights and obligations during a strike or
lockout. The only issue on which we were unable to reach full consensus was the
way in which to deal with the controversial question of replacement workers. The
majority view is that there should not be a general ban on the use of replacement
workers, but that their use for the purposes of undermining a union's right to
represent employees should constitute an unfair labour practice. Rodrigue
Blouin's view is that there should be a total ban on the use of replacement
workers. Despite this difference, we share the view that permanent replacements
are inappropriate and the right to return to work at the end of a strike should
receive statutory protection, as should the right to arbitrate discipline or dismissal
imposed during a strike or lockout. We suggest several other ways of balancing
rights during work stoppages.
Changes to federal jurisdiction have led to a need, in a few bargaining
relationships, for some provision to ensure the maintenance of essential services
necessary to protect public health and safety. We recommend against any general
prohibition on the right to strike or lockout and believe that this can be effectively
accommodated with a system that encourages agreement between the parties
backed up by a Ministerial power to seek a CLRB declaration where necessary.
After examining the options, we reject suggestions to substitute arbitration for
free collective bargaining in certain industries with the potential for high impact
on the public interest. We do recommend that a Public Interest Panel be available
to the Minister of Labour to advise on the full impact of potential work stoppages
with serious public consequences.
Section III of our report deals with the administration of the Code. Canada has
developed an active labour relations community, people with the ideas and the
willingness to make labour relations a forward-looking component of our social
and economic fabric. More use should be made of this resource in setting our
labour relations policies and designing and administering our agencies. We
recommend the establishment of an Advisory Committee on Labour Relations to
begin a partnership process offering advice and assistance to those responsible
for the various facets of the Code. We see this as a much needed source of input
and feedback.
We have made many recommendations concerning the Canada Labour Relations
Board. First, we recommend that it once again become a representational board,
with members drawn from labour and management. We also recommend that
major changes be made in the way persons are appointed to the Board. For the
Board to do its work well and to sustain a high reputation with labour and
management, steps must be taken to ensure appointees with the highest calibre
of labour relations expertise.
In addition, immediate steps must be taken to improve and speed up the Board's
case handling processes We heard complaints throughout Canada about
extraordinary and unnecessary delays in the Board's processes. While the Board
has the resources and skills to make these changes, it is an organization that is
presently torn by internal dissension. We recommend changes to clarify the
allocation of executive powers within the Board. However, what is more important
is that the Board work to regain its links to the community that it serves, and that
it adopt and achieve performance criteria that recognize the importance of
expeditious dispute resolution.
We recommend a number of new powers for the Board to make its processes
more effective and to enable its orders to be more complete, recognizing
throughout the importance of the parties arriving at their own solutions wherever
possible.
The role of the Federal Mediation and Conciliation Service (FMCS) would change
somewhat with the provisions we recommend for the length and style of the
conciliation process. However, this agency offers, and should continue to offer and
develop, programs directed at improving bargaining relationships. We cannot
overemphasize the importance of developing a culture of dispute resolution and
of increasing the skills of Canadians in the resolution of workplace disputes. We
recommend that FMCS receive specific recognition in the Code and a mandate to
carry on these important activities. In the long run, we believe that fostering the
skills that allow the constructive resolution of disputes will pay high dividends.
In a number of areas, we recommend that administrative powers currently vested
in the Minister be transferred or delegated to the Head of FMCS. We recommend
that the requirement for Ministerial consent to file certain unfair labour practices
should simply be repealed. We recommend that the Advisory Committee on
Labour Relations be used to create and update a list of arbitrators, to streamline
the process or appointing arbitrators where parties cannot agree.
Our review suggests that the Canada Labour Code continues to serve the parties
well, although it is in need of some improvements. We also conclude that free
collective bargaining, particularly of the enterprise level kind that we use in
Canada, continues to serve our social and economic needs well. There are,
however, situations where free collective bargaining has little relevance and
where other labour policies may need to be devised. In the final Section of our
report, we make some observations that go beyond the Canada Labour Code.
Chapter 1
The Scope, Methodology,
and Limits of the Review
•
•
•
•
The Mandate of the Task Force
Our Methodology
The Limits of Legislative Reform
The Limits of Our Review
The Mandate of the Task Force
The Task Force was established by the Minister of Labour on June 29, 1995, to
conduct a comprehensive review of Part I of the Canada Labour Code. Its mandate
was to identify options and, where appropriate, to make recommendations for
legislative change, with a view to improving collective bargaining and reducing
conflict, facilitating labour management cooperation, ensuring effective and
efficient administration of the Code, and addressing the changing workplace and
employment relationship. The recommendations were to be made in the context
of the present Code which recognizes freedom of association and free collective
bargaining as the bases of effective industrial relations. The Task Force was
instructed to consult with labour and management groups whose members were
subject to the Code and to submit a final report to the Minister of Labour by
December 15, 1995. The Minister granted an extension to January 31, 1996 for
submission of the final report. The full text of the Minister's letter appointing the
Task Force as well as the specific areas to be investigated appear at Appendix A.
Our Methodology
Given the scope of our mandate, we met in July 1995 to map out a strategy to
make the most efficient use of our time and resources. We agreed that direct
contact with the affected parties, both labour and management, would be the
best way to establish the current environment for labour relations in Canada, the
problems, and potential remedies. Some limited research was commissioned, but
the majority of work was undertaken by the Task Force members and the
departmental staff assigned.
Information Bulletins
We utilized a series of Information Bulletins as our principal means for soliciting
input. These Bulletins explained our mandate, the broad issues involved, and a
proposed schedule for public consultations across the country. In particular,
Information Bulletin #2, published on September 21, 1995, grouped the issues
under seven broad headings (see Figure A) with a series of key questions to assist
with the preparation of submissions. We indicated that these issues and key
questions were not exhaustive and invited parties to address other relevant
concerns as well.
Figure A
KEY ISSUES FOR CONSIDERATION
1. Purpose of the Code and Criteria for Reform.
2. Structure and Powers of the Canada Labour Relations Board.
3. The Acquisition and Continuity of Bargaining Rights and the Structure of
Bargaining Units.
4. Reform of the Bargaining Cycle.
5. Rights and Obligations of Employers and Workers During and After a Strike or
Lockout.
6. Workplace Communications, Innovation and Resolution of Workplace Disputes.
7. Bargaining Processes for Non-Traditional Work and Emerging Jurisdictions.
To avoid duplication and overlap of submissions, we encouraged members of
representative umbrella groups to communicate their general concerns through
these groups and to limit their own representations to issues of specific interest.
Written submissions were sought from all interested parties, but we reserved the
right to restrict oral presentations to representatives of labour and management
who were subject to Part I of the Code, and to organizations whose members were
directly and substantially affected by labour relations in the federal private sector.
Public Consultations and Written Submissions
Public consultations were held in Halifax, Vancouver, Toronto, Ottawa, Edmonton,
Montreal, and Winnipeg commencing on October 19, 1995 and concluding on
December 7, 1995. We received about ninety written submissions with close to
fifty groups and individuals making presentations at consultation sessions (see
Appendix B). All briefs were carefully analyzed and their content played an
important part in the formulation of our recommendations.
We are particularly grateful to the participants who made our work easier by
following the format suggested in the Information Bulletins.
Informal Meetings and Consultations with Interested Groups
In addition to public consultations, we also held informal meetings with labour
lawyers and administrators of labour law in most of the cities visited. Task Force
members also, either together or individually, spoke to a number of professional
and other interested groups.
Academic Round Tables
We also sponsored three full day regional sessions with academic experts in the
fields of labour law and industrial relations. These included representatives of the
academic communities proximate to theUniversities of Laval, Toronto and Calgary
(See Appendix C).
Informal Consultations with the Canada Labour Relations Board
We benefited greatly from informal consultations with the members and staff of
the Canada Labour Relations Board. We thank those who spoke to us informally
for their cooperation and insights.
Labour-Management Consensus Group
We wish to highlight the very important work undertaken by a labourmanagement Consensus Group comprised of representatives of the Canadian
Labour Congress, the Confederation of National Trade Unions and the Canadian
Federation of Labour on the labour side, and of the Federally Regulated Employers
- Transportation and Communication (FETCO), the Western Grain Elevator
Association and the Canadian Bankers Association on the employer side.
With Task Force staff acting in a facilitative role, this Consensus Group held a
relatively short but productive series of meetings to explore the prospects for
consensus on some of the key issues related to our mandate. We did not expect
consensus on all issues but we did believe that some areas would lend themselves
more readily to agreement between labour and management. We indicated to the
Group that any consensus reached on specific issues or any general directions
would weigh heavily in our deliberations, since the three of us believe that any
areas of agreement between labour and management offer a sound basis for
enduring and stabilizing legislative reform.
Without diminishing in any way the contributions of other individuals, we would
like to express particular thanks to Nancy Riche, Executive Vice-President of the
Canadian Labour Congress, and Don Brazier, Assistant Vice-President, Industrial
Relations, Canadian Pacific Rail Systems and Chair of the FETCO Sub-Committee
for the Review of Part I,who were chief spokespersons for the labour and
management groups respectively. We would also like to thank the sponsoring
organizations for their support and participation.
The results of the consensus exercise are reflected in our discussion of key issues
and our related recommendations.
Response to the Industrial Inquiry Commission at West Coast Ports
Finally, part of our mandate was to take into account the recommendations of the
Industrial Inquiry Commission into Industrial Relations at West Coast Ports,
especially with respect to essential service and public interest disputes, and the
issue of geographic certifications. We thank the Industrial Inquiry Commissioners,
Hugh R. Jamieson and Bruce M. Greyell, for their work.
The Minister of Labour released the report of the Industrial Inquiry Commission on
December 15, 1995. On December 18, 1995 we published an Information Bulletin
which outlined the report's recommendations and sought comments from
interested parties by January 8, 1996. We received a number of written
submissions, and also met with representatives of labour and management
organizations which had previously participated in consensus discussions for the
Part I review.
The Limits of Legislative Reform
Legislation can only do so much, especially labour relations legislation. The
Canada Labour Code simply provides a framework within which the much broader
world of labour-management relations operates. Free collective bargaining, like
free enterprise, works when individuals and groups, unions and employers, make
decisions about their own best interests and work out their own relationships
within the framework of the law.
Legislation cannot fix every problem. Neither the Canada Labour Code nor the
Canada Labour Relations Board can solve every labour-management situation.
The parties themselves must do that.
The Canada Labour Code leaves the parties - employers and employees acting
through their unions - responsible for the quality and much of the content of their
day to day working relationships. They can act cooperatively to solve problems, or
they can be confrontational. They can ignore their position in the economy, or
they can work together to meet their competition and thrive. They can pay
attention to the social issues that are important to workers, or they can suffer the
long term consequences of avoiding them.
Labour-management relations are dynamic. It has been said that management
gets the union it deserves, and unions get the management they deserve.
Accurate or not, it points to the underlying truth that the way parties treat each
other in their day to day dealings influences the quality of their overall
relationships. When strikes or lockouts take place, they are not just isolated
events. Instead, they are often the culmination of bad feelings and unresolved
relatively minor differences that have festered over time.
No law can force the resolution of each of these little differences, nor can law
prevent their accumulation. Legislation can and does provide a framework for
working out these disputes. It can encourage constructive approaches, but
legislation cannot dictate what the ultimate resolutions should be.
Some people advocate the abolition of strikes and lockouts arguing that "there
must be a better way", implying that it is possible to discern and enforce a "right"
solution. Even if employers and employees are forced to accept a solution decided
by a third party, nothing requires the principal parties to consider their disputes
resolved or their ambitions satisfied by that third party ruling. No law can cure the
difficult relationships that develop as a result of unresolved issues. The great
advantage of a negotiated settlement is that the parties, by their signatures, at
least, accept that they have achieved the best that they can at that time, and
consequently, are more likely to live contentedly with and take responsibility for
the result.
Collectively bargained solutions often involve change. Change works best when
both sides agree to the future direction. That is the reason why collective
bargaining is so appropriate to organizations undergoing change. An imposed
change can be resisted and undermined in subtle but corrosive ways by those
who feel that change was imposed without their consent. Our legislative
framework therefore favours free collective bargaining and makes little attempt,
except in exceptional cases, to impose solutions upon the parties.
Diversity also places limits upon what legislation can achieve. The Canada Labour
Code must be broad enough to govern the labour relations of a variety of sectors,
from four employees in a radio station in the North, to tens of thousands of
railway workers spanning the whole country, to bank employees in a large city.
Besides practical factors, there is a sound policy reason for favouring free
collective bargaining within the legislated framework. Canadians prefer parties to
take responsibility for their own actions, whether as employees making choices
through their unions or as owners making choices for their own enterprises. The
choices they make impact upon each other; each party must recognize that fact
and take responsibility for it.
The choices they make also affect the prosperity and social well-being of the
greater community. Canadians rightfully expect employers and employees
through their unions to take responsibility for those community impacts. If laws
remove that responsibility and replace it with solutions designed by third parties
and enforced by the state against the wishes of the participants, this sense of
joint responsibility is lost.
The Limits of Our Review
Our mandate, in the context of the Canadian system of industrial relations, had a
number of fixed limits. We did not undertake a global analysis of the labour
system, but rather a specific examination of collective labour relationships. For
example, we did not study the respective contributions of our collective
bargaining and minimum labour standards regimes within the overall industrial
relations system. Further, our mandate did not allow us to venture into a
comparative examination of the advantages and disadvantages of our model of
representation and collective bargaining with other forms, such as works councils
or other European representation models. In fact, the prime objective of our
review was to assure that Part I of the Canada Labour Code remains an efficient
instrument for promoting effective collective labour relations, based on exclusive
trade union representation and decentralized collective bargaining.
Our review was conducted within a limited time frame. However, we did have
access to experienced labour relations practitioners and academics who had
already produced excellent work on some of the trends in our workplaces, our
laws and our economy. We are grateful for their willingness to share ideas and
information with us. We also benefited from some original research. But, our
report is primarily the product of our consultations, our efforts to build consensus
and our own experience.
Canada, particularly in the federal jurisdiction, has a very sophisticated labour
relations community. We have emphasized the importance of responsibility for
decision-making in labour relations and we have suggested that third party
decision-making should be the exception, not the rule. We took much the same
approach to our own work. We believe that the best labour reform should emerge
from informed consultation and debate amongst dedicated and skilled
practitioners, mindful of the public impact of the decisions they make. In the body
of this report, we recommend that the government take steps to tap this expertise
on a more regular basis.
Even if all of our recommendations are fully implemented, there remains much
work to be done on an on-going basis to improve the administration of our labour
laws and to ensure the social and economic success attributable to Canadian
work. This will only succeed with the participation of labour relations practitioners
across Canada.
Chapter 2
The Legal Framework
• The Development of Federal Labour Legislation
• The Canada Labour Code
• The Federal Jurisdiction for the Purposes of Part I
The Development of Federal Labour Legislation
Laws enacted in the latter part of the previous century loosened the legal
obstacles to freedom of association and the right to organize. Much of labour
relations law developed during the present century has been aimed at managing
and containing industrial conflict. Federal labour relations legislation has also had
to respond to an evolving constitutional jurisdiction. A rapid review of
developments since 1900 reveals the origins of several key features found in the
Canada Labour Code, Part I, today.
The Conciliation Act(1) of 1900 established the federal Department of Labour
which had the primary purpose of assisting in the prevention and settlement of
labour disputes. The Act, however, relied on voluntary participation and provided
no authority to impose conciliation. Following a series of disputes in railways and
other industries, such authority was included in the Industrial Disputes
Investigation Act(2) of 1907.
This Act, also known by its long title, "An Act to Aid in the Prevention and
Settlement of Strikes and Lockouts in Mines and Industries Connected with Public
Utilities", was adopted largely as a result of the Lethbridge coalfield strike in 1906.
The strike lasted nine months and placed prairie communities in jeopardy of losing
winter fuel supplies.
This statute embodied three basic principles: the compulsory investigation of
labour disputes by government-appointed third parties; the expectation that
informed public opinion would bring pressure for compromise; and the prohibition
of work stoppages pending investigation. Although there have been modifications
over the years and there is more emphasis today on conciliation and assisting
parties to find their own solutions rather than on investigation and formal reports,
the three principles are still reflected in the dispute resolution provisions of Part I
of the Canada Labour Code.
The next stage of development concerned constitutional jurisdiction rather than
specific legislative provisions. It was anticipated that the federal legislation would
apply to mining, transportation and public utility industries and that it could well
apply to a range of other major industries.
This plan for federal dominance of Canadian labour legislation was not
successfully challenged until the Toronto Electric Power Commissioners v.
Snider(3) case of 1923. The subsequent ruling of the Judicial Committee of the
Privy Council in 1925 found that the Industrial Disputes Investigation Act could not
apply to municipal employees and other areas of provincial jurisdiction.(4) The
immediate result was the adoption of an amendment which recognized the Act's
application to a more clearly defined federal jurisdiction, but which also enabled
the provinces to declare it to apply in their fields of competence. Indeed, virtually
all provinces did so over the following years. However, a reverse trend began in
the later 1930's, only temporarily halted during World War II, and subsequently
continued in the post war years.
It was during the war years that further key and enduring features of present day
labour legislation were adopted, largely inspired by the United States Wagner
Act(5) of 1935 (complemented later by the Taft-Hartley Act of 1947) and
embodied, initially, in Order-in-Council P.C. 1003 of 1944.(6) These features
included: provision for trade union recognition by certification, on the basis of
majority support of a bargaining agent with exclusive rights to represent all
employees in a bargaining unit; a duty for employers and recognized unions to
meet and bargain in good faith; a prohibition on specified unfair labour practices;
a prohibition on strikes and lockouts during the term of a collective agreement
with a related duty to resolve differences arising within the term without stoppage
of work, usually by arbitration; and, the maintenance of a competent labour
relations board to administer these provisions.
Although the Industrial Disputes Investigation Act was suspended during the war
years, its compulsory conciliation feature was continued. In fact, in 1948, when
the new federal Industrial Relations and Disputes Investigation Act(7) was
adopted to replace the wartime emergency regulations, it included all of the new
"Wagner" features together with the compulsory conciliation measures that had
long been a part of federal labour relations law. In effect, virtually all of the basic
elements of today's Part I were in place. These elements have, for many years,
been put forward as stabilizing factors, emphasizing as they do, the statutory
removal of union recognition strikes, the elimination of strikes over grievances,
and the circumscription of the acquisition of strike and lockout rights until
compulsory conciliation interventions and other procedural steps have been
exhausted.
Some twenty-five years elapsed before the federal statute was next amended. By
that time, it had become known as the Canada Labour Code, Part V.(8) The Code
was adopted in 1972 and the amendments came into force in 1973.(9) Access to
collective bargaining was made easier and bargaining rights were extended to
some previously excluded groups such as supervisors, employed professionals
and private police.
Major changes were made to the Canada Labour Relations Board, transforming it
from a part-time representative board to a full-time board. Its members, although
expected to have experience in labour-management relations, were not directly
affiliated to either labour or management organizations. The new Board was given
wider jurisdiction over a number of matters, essentially assuming enforcement
and remedial powers that had previously rested with the courts. Discretion for the
Minister of Labour to impose conciliation was maintained although procedures
were streamlined, notably with the introduction of a provision for a single
conciliation commissioner as the preferred option, instead of the three person
conciliation board which had been the rule.
One major modification of the Code in the 1973 amendments was the addition of
technological change provisions. The legislation allowed the Board to delay the
introduction of technological change and permit the opening of a collective
agreement, in defined circumstances, for the purpose of negotiating the effects of
its introduction on employees. It also effectively enabled the parties to exempt
themselves from its application if sufficient adjustment measures were already
included in the existing collective agreement. In fact, it was the latter course that
was overwhelmingly followed, and the statutory provisions have rarely been
invoked.
Figure B
HIGHLIGHTS OF FEDERAL COLLECTIVE
BARGAINING LAW IN CANADA
• 1900 Conciliation Act established federal Department of Labour and
provided for voluntaryconciliation of a labour dispute.
• 1907 Industrial Disputes Investigation Act (I.D.I.) provided for compulsory
investigation of adispute before strike or lockout could legally take place.
Applied to mines, transport, communication and public utilities.
• 1925 Privy Council ruling in Toronto Electric Power Commissioners v. Snider
case limitedParliament's jurisdiction over labour matters to federal works,
undertakings and businesses.
• 1944 Wartime Labour Relations Regulations (P.C. 1003) imposed legal
obligation on the employerand employees' bargaining representative to
negotiate with each other in good faith. I.D.I. Act was suspended .
• 1948 Industrial Relations and Disputes Investigation Act (I.R.D.I) combined
compulsory collectivebargaining provisions of P.C. 1003 with conciliation and
investigation features of I.D.I. Act.Repealed I.D.I. Act and revoked P.C. 1003.
• 1967 The I.R.D.I. Act was consolidated with other labour statutes as the
Canada Labour Code.The industrial relations provisions became Part V.
• 1973 New Part V of the Canada Labour Code adopted. Made access to
collective bargainingeasier and extended bargaining rights to certain
previously excluded groups such as supervisors,employed professionals and
private police. Transformed Canada Labour Relations Board into anonrepresentational board.
• 1988 When the Code was reissued in 1988 as part of the Revised Statutes of
Canada, 1985, Part V became Part I.
The 1973 amendments, however, did not address public interest
disputes.Emergency back-to-work legislation has been frequently adopted in such
industries as railways, grain handling and long-shoring; indeed in the case of the
west coast longshoring it has become endemic. The frequency has increased at t
he same time that the amount of time elapsed from the start of a work stoppage
to the introduction of special legislation has decreased. This historical trend is
seperate from developments in the Code itself and is one not generally found in
most other industrialized countries.
Since 1973 the Canada Labour Code has been amended a number of times. In
1988 when the Code was reissued as part of the Revised Statutes of Canada
1985, the industrial relations provisions became Part I.(10) Changes have included
measures to provide for first contract arbitration (1978), an explicit duty of fair
representation (1978), mandatory union dues check-off (1984), and the prospect
of a supervised vote on an employer's last offer (1993).
1
S.C. 1900, c. 24.
2
S.C. 1907, c. 20
3
(1923) 55 O.L.R.. 555.
4
(1925) 2 D.L.R. 5 (P.C.)
5
National Labour Relations Act, C. 372, 49 Stat. 449 (1935) (Wagner Act)
6
Wartime Labour Relations Regulations, Order in Council P.C. 1003, 17 February
1944.
7
S.C. 1948, c. 54
8
Canada Labour Code, S.C. 1966-67, c. 62.
9
R.S.C. 1970, c. L-1, am. 1972, c.18
10
R.S.C. 1985, c. L-2.
The Canada Labour Code
The Canada Labour Code, Part I, establishes a framework for collective bargaining
in the federal private sector. The Canada Labour Relations Board, an independent
quasi-judicial tribunal, is responsible for the interpretation and application of those
provisions of the Code related to bargaining rights and unfair labour practices. The
Federal Mediation and Conciliation Service of Human Resources Development
Canada administers the dispute resolution provisions of the Code.
Collective bargaining under the Canada Labour Code begins when a group of
employees decides to organize in order to negotiate a collective agreement with
their employer. The employees must first form their own trade union, or join an
existing one. Recognition of the union as their bargaining agent may be acquired
by the employer voluntarily agreeing to enter into a collective agreement, or by
the union applying for certification. When this occurs, the following general
framework for collective bargaining, as set out in Part I of the Canada Labour
Code applies:
• Exclusive bargaining rights are granted to bargaining agents representing
employees in a given bargaining unit, on the basis of majority support. The
Canada Labour Relations Board decides the certification of bargaining
agents and determines questions of membership support. The Board also
decides matters such as the appropriateness and structure of the
negotiating unit and polling constituency, and questions of employee status
or exclusion. Voluntary recognition of bargaining agents and the units they
represent is also permitted, but employees may not strike to gain such
recognition.
• Bargaining agents and employers have a duty to meet and negotiate in
good faith and to make every reasonable effort to conclude a collective
agreement. The Canada Labour Relations Board adjudicates allegations of
failure to bargain in good faith and other unfair labour practices.
• Notice to bargain for renewal and revision of an existing collective
agreement may be given by either party within three months of the expiry
date. The parties are required to notify the Minister of Labour of any dispute
which they cannot resolve before they may acquire the right to strike or to
lockout.
• The scope of collective bargaining is not limited by the Code; all subjects are
potentially negotiable, and subject to the agreement of the parties, may be
included in a collective agreement.
• Conciliation procedures may be imposed at the discretion of the Minister of
Labour and no strike or lockout may legally take place unless the dispute
notification and settlement procedures have been completed or dispensed
with by authority of the Minister.
• Strikes and lockouts are not permitted during the term of an agreement. The
agreement must contain a provision for the settlement by arbitration or
otherwise, of disputes concerning the interpretation of the agreement which
arise during its term, without resort to a work stoppage.
• Collective agreements must be for a fixed term of at least one year.
Other important provisions of the Code include:
• the right to seek a reopening of an agreement to bargain questions relating
to the impact of the introduction of technological change;
• the possibility of negotiating union security arrangements, such as the union
•
•
•
•
•
or closed shop, and the right for a bargaining agent to require a provision in
collective agreements covering compulsory union dues check-off from all
employees in the bargaining unit whether or not they are members of the
union, subject to exemptions for religious beliefs;
the requirement for a bargaining agent to represent all employees in the
bargaining unit fairly and without discrimination;
the possibility for the Minister of Labour to refer a first agreement dispute to
the Canada Labour Relations Board for consideration of first contract
arbitration by the Board;
a range of unfair labour practices and prohibitions relating to both
employers and trade unions, prohibiting, among other things, employer
interference with the formation or administration of a trade union, trade
union attempts to compel an employer to bargain if the union is not the
bargaining agent, and a number of other actions against individual
employees or union members;
offences and penalties for actions by employers, trade unions or individuals
which are contrary to the Code's provisions; and
general provisions relating to the promotion of industrial peace, including
provision for the appointment of mediators and industrial inquiry
commissions.
The Federal Jurisdiction for the Purposes of Part I
Part I of the Canada Labour Code applies to federal works, undertakings or
businesses and their employees. According to the Constitution Act and its
interpretations, the Parliament of Canada has jurisdiction for labour relations in a
number of key industries. For the purposes of the Canada Labour Code, Part I
these include:
•
•
•
•
•
•
broadcasting (radio and television)
chartered banks
postal service
airports and air transportation
shipping and navigation (including loading and unloading of vessels)
interprovincial or international transportation by road, railway, ferry or
pipeline
• telecommunications
• industries declared for the general advantage of Canada such as grain
handling and uranium mining and processing
Part I of the Canada Labour Code also applies to:
• business activities in the Yukon and Northwest Territories
• undertakings of First Nations on reserves
• certain crown corporations such as Atomic Energy of Canada Ltd, Devco,
and the National Arts Centre
Part I does not apply to federal government employees who are subject instead to
the Public Service Staff Relations Act (PSSRA). (11) Members of the R.C.M.P. and
the military are not covered by either Part I of the Code or the PSSRA.
The balance of labour relations are subject to provincial jurisdiction under a series
of labour relations acts (most following a similar format to the federal Act)
administered by provincial labour relations boards or, in Quebec, by the Bureau du
commissaire général du travail and the Tribunal du travail.
The division of constitutional authority between the levels of government in
Canada is not static and can change with court decisions and emerging industries
over time. Also, the current arrangement, where the federal and provincial
governments each legislate and administer labour relations legislation for
employees within their own areas of legislative competence, is not the only one
possible. For the purposes of this report, we will assume that this arrangement will
continue. However, we discuss other possible options in Section IV.
Statistical Highlights of the Federal Jurisdiction
According to Part III of the Estimates for 1995-96 for Human Resources
Development Canada, Part I of the Canada Labour Code applies to approximately
680,000 employees, about 6% of workers in Canada. An estimated two-thirds of
the jobs in the federal jurisdiction are concentrated in transportation and
communications industries, with another quarter in the chartered banking
industry.
Almost 50% of all workers in the federal jurisdiction are covered by collective
agreements. By industry, unionization is highest in the transportation and
communications sectors; the lowest level of unionization occurs in the banking
industry. (See Table 2.1)
Work stoppage activity in the federal jurisdiction is comparable to work stoppage
activity in Canada. On average over the past six years, strikes and lockouts in the
federal jurisdiction represented 4.5% of the total number of work stoppages in
Canada, and accounted for 6% of the total person days not worked due to work
stoppages. (See Tables 2.2, 2.3 and 2.4)
11
R.S.C. 1985, c. P-35
Chapter 3
The New Labour Relations
Environment
• The Changing Workplace
• The New Involvement of the Parties
• The International Environment and Obligations
The Changing Workplace
In the past ten years, we have witnessed rapid change in the structure of work
and workplaces regulated by the Canada Labour Code. However, while new types
of work are emerging, much traditional work continues, particularly in the federal
jurisdiction. In this section we discuss some of the more profound changes and
their consequences for labour relations.
Deregulation and Enhanced Competition
Ten years ago, the workplace governed by the Canada Labour Code was, in many
areas, highly regulated without much real competition. There was also a great
deal of government ownership. Over the past decade, regulation and government
ownership have diminished rapidly and competition has increased.
Examples of deregulation include the "Open Skies" policy and the revisions to
trucking regulations. The federal government has withdrawn from ownership of
major employers such as Canadian National and Air Canada and has adopted a
more arm's length relationship with the Canada Post Corporation. More recently,
the federal government arranged to sell its air traffic control system and
announced its intention to do the same with marine transportation and the St.
Lawrence Seaway.
The elimination of the subsidies known as "the Crow rate", payable under the
Western Grain Transportation Act,(1) has introduced new competition into the
grain trade. Whereas in the past there was an economic incentive to move all
grain through Canadian ports by rail, there is now the possibility of exploring
alternate routes, either in the event of a work stoppage, or on a long term basis.
Free trade has added a further competitive element. In several industries, the
removal of tariff and other barriers to doing business with or through the United
States has exposed Canadian businesses and their employees to the need to
remain competitive with their American counterparts.
The competition created by deregulation and free trade is breaking up some of
the more traditional bargaining patterns. When a small number of bargaining
relationships (one or two unions with one or two employers) negotiated for major
industries, they tended to negotiate together, or at least to negotiate pattern
agreements where wage rates and working conditions were very similar. The new
competitiveness has put wage rates and, as a result, comparative operating costs,
back onto the bargaining table.
This increased competition is having a profound impact on collective bargaining in
the federal sector. In the past, a strike or lockout might carry little or no risk of
loss of market share; the same event today can result in a major loss of business.
Unions and management have had to adjust their strategies appropriately. This
new reality may have served to reduce the number of stoppages and their
severity.
Privatization and Government Cutbacks
To reduce costs and the level of services provided, government continues to
transfer jobs to the private sector, or to eliminate them completely, including
many of its own support services such as printing and security. This change puts
public sector unions in a defensive mode, as this type of work tends to go to
smaller employers where unionization rates are lower and organizing tends to be
more difficult. In many cases, when the federal government contracts out work
that it previously performed itself, the work not only ceases to be covered by the
Public Service Staff Relations Act, but ceases to be in the federal jurisdiction at all.
Employment functions, such as caretaking or printing, when removed from a
federal department or agency or a federally regulated private enterprise,
generally fall under provincial legislative competence.
This trend has also had an impact on the overall labour movement, of which the
public sector unions are a major part. Government cutbacks make it that much
more difficult for government and organized labour to communicate freely
concerning government's role as legislator. The government is seen frequently to
be wearing two hats in its dealings with organized labour: legislator and policy
maker on the one hand; and the country's largest employer (and in a cutback
mode) on the other.
Changes in Technology
The last decade has seen rapid growth in our use of technology. Changing
technology has changed the nature of work and heightened competitiveness. New
methods of transportation and communication have meant that, in some areas,
old dependencies have been broken. E-mail and fax machines provide obvious
alternatives to direct mail. Road and air transportation provide a realistic
alternative to rail for some commodities and products.
Changing technology has had a number of important impacts on the workplace.
The most obvious impact has been the automation of many jobs, resulting in large
scale layoffs and seemingly intractable unemployment problems.
A second and more subtle impact has been the increase in the ability of
management to monitor and control the way work is performed. The computer
can now keep much closer track of the costs, performance, time-frames and
profitability of various forms of work. This information has made it safer for
employers to have much secondary work done outside of the traditional
enterprise, heightening concern at the bargaining table over job security for
employees of the core enterprise. Another feature of this facility to contract out
work is the trend away from stockpiling products and supplies in favour of "just in
time" delivery systems, where producers and suppliers carry the responsibility for
maintaining a steady supply of goods and raw materials to major manufacturers.
Technology also affects styles of management and forms of workplace
communication, subjects which we address later in this report.
The Compaction of Work
The catch-phrase "doing more with less" applies to each worker as much as the
entire workplace. Increasingly, fewer and fewer employees are doing more and
more work. At the same time, unemployment figures remain alarmingly high. This
is an important area for policy consideration by governments and others, although
one largely beyond the scope of this report.
Part-time, short term and casual work is increasing in importance, and in the
1980's accounted for 44% of total employment growth. These types of jobs
typically involve lower wages, fewer benefits, and less security than more
traditional employment. This in turn is leading to a polarization of our workforce;
full-time secure workers making comparatively more income, while workers with
less security making comparatively less.
This results in several social issues. At a time when government is trying to
reduce its liability for social service benefits like old age security, an increasing
segment of the population is losing access to the type of private pension and
benefit plan arrangements that could make them self-sufficient in their retirement.
The emergence of an underemployed and poorly paid class of workers impacts
unduly on those who already find their job opportunities restricted, exacerbating
the problems of gender, race, age and disability discrimination.
This also creates the occasional backlash against those who are organized, who
are seen, by some, as the fortunate beneficiaries of this polarization of jobs. An
unsettling resentment of the organized can develop among those who face bleak
opportunities for employment.
Training, Innovation and Adjustment Strategies
More than ever, employees will have to retrain at least once in their careers, and
training is no longer just something employees acquire outside of the workplace.
Increasingly, training is an important part of work itself. Training is not just
learning to do something, but learning to adapt and innovate, to do the work
better. Workplace training and workplace innovation are merging areas.
Training is as important for growing industries as to those that are in decline. In
the latter case, retraining is a vital part of employee adjustment programs,
necessary for the development of new skills to meet new challenges.
Training, innovation and workplace adjustment are areas where government can
play a key role as facilitator. So too can joint committees of labour and
management. Government already promotes sectoral councils and other tripartite institutions. Labour and management clearly have a common interest in
responding to the needs and opportunities created by change.
1
(1985) R.S.C., c. W-8
The New Involvement of the Parties
There is a belief by some commentators that collective bargaining has become a
system opposed to change, a brake on much needed industrial restructuring.
Unions are accused of being the new conservatives, resisting change and seeking
to preserve the status quo. This viewpoint may be due to institutionalized
unemployment which has made the labour market a buyers' market, and to the
economic restructuring which has led to a reduction in the overall number of jobs
in many workplaces.
Unions reflect and represent the concerns of their members. The loss of benefits
and potentially, the loss of work, frequently put unions into a defensive posture.
What is probably more significant is that employers are now using collective
bargaining to achieve industrial change. The demands of employers rather than
the demands of unions are now increasingly the focus of negotiations.
Styles of Management
There has been a steady evolution from a rather hierarchical style of management
to a new form of "flattened" management. Beneath all the buzz words is the fact
that restructuring has led to a reduction in the numbers of managers in many
Canadian businesses. These fewer people now have increased responsibilities,
and there is a need for new, and often more collegial ways of getting work done.
Increasingly, this means having employees in a bargaining unit make or at least
participate in some of the decisions previously reserved exclusively to
management. We have already alluded to the impact of technology. Computers
provide the facility to monitor and control work, and to communicate freely
throughout an enterprise (within plants and across continents), reducing the need
for many middle managers.
A side effect of this reduction in the number of managers is the employer's
increased vulnerability to strike action. In the past, part of an employer's ability to
absorb a work stoppage was its ability to re-deploy managers to perform the work
of the bargaining unit. This allowed employers to maintain services and
equipment, and, in some cases to keep some products or services going. A
reduced management complement means less flexibility in this area and explains
some of the new importance attached to the question of replacement employees.
Management itself is changing rapidly. Managing no longer means simply
maintaining order and predictability according to a set of established rules, but
rather keeping pace with changing priorities and finding innovative and effective
ways to meet new challenges. This requires new types of leadership skills,
emphasizing cooperation, teamwork and flexibility. This can lead to impatience
with old style confrontational collective bargaining and contract administration
approaches. At the same time, it does open up new opportunities for improved
labour-management relationships.
Union Structures and Approaches
As workplaces change, so do unions. The past decade has seen the merger or
amalgamation of many major trade unions, including several that play an
important role in federal collective bargaining. This is partly a response to the
actions of the Canada Labour Relations Board which consolidated bargaining units
with several large national employers in order to reduce fragmentation. It is also
partly a natural process, as unions consolidate into larger structures for greater
efficiency and strength.
In many cases, as unions have amalgamated, they have broadened the base of
services offered and their range of activities. Major unions now have legal
departments and highly developed training and research facilities. These help
educate union members in the bargaining, arbitration and dispute resolution
processes, and labour economics. Most unions have also developed a very
sophisticated understanding of the industries in which they operate, contributing
new depth to the overall bargaining process.
Styles of Negotiation
One must be wary of the allure of new styles of negotiation which come into
fashion every few years. However, one must be sensitive to the voices of those
who have been through years of traditional adversarial forms of bargaining and
who are saying that there must be a better way to do things.
One of the most promising trends we observed across the country was a growing
awareness of the advantages of more principled styles of negotiation, compared
to the more traditional position-based approach. Change is clearly taking place,
but it comes hard in some industries where old behaviour patterns run deep, and
old rivalries and animosities are difficult to replace.
Collective bargaining is a complex process dealing with important interests. As the
experienced arbitrator and mediator George W. Adams wrote in a 1992 publication
entitled "Negotiation: Why Do We Do It Like We Do?":
"Every business needs to be financed; needs to keep abreast of market demands;
and needs to stay ahead of the competition. Every employee needs a sense of
worth beyond the receiving of a paycheque. Suppliers, customers, bankers,
employees, shareholders and government all have a common interest in the
success of a business and in the fair distribution of its revenues. Not one of these
parties can act in a manner oblivious to the interests of the others".(2)
Our traditional style of bargaining, at its worst involved labour and management
each putting forward elaborate and often exaggerated lists of demands, meeting
together to "horse trade" over those demands, while at the same time bluffing,
threatening and posturing in support of their positions. This could go on for
months, or even years, until intense negotiations occurred only at the eleventh
hour, when compromise was sought to avert a work stoppage. Many settlements
were achieved by this process. However, the focus tended to be on the demands
and the arguments in favour of those demands, rather than on the underlying
interests of the parties in the dispute. This form of negotiation tended to achieve a
collective agreement, but often did not concern itself with long-term problem
solving.
This style of negotiation has been changing, not only in labour relations. Much has
been written on new negotiation practices, and parties are trying out these
techniques both at the bargaining table and in their day to day work. Encouraging
the process is the growing recognition that effective labour-management relations
requires an ongoing relationship built on mutual respect and continuous problem
solving. The growing availability of training in workplace problem solving also
helps this process.
Two impediments, however, continue to hinder the growth of this new attitude to
labour-management relations. First, some unions remain wary that employers
engage in this sort of dialogue only when they need labour's cooperation because
of problems ahead, such as difficult downsizing. All the elaborate mechanisms do
not disguise the bad news, and this generates understandable cynicism in some
circles. The second barrier is the very out-dated public stereotype of labourmanagement relations. Bargaining always seems to be described in its worst
form. Labour and management dialogue is considered ineffective unless it is
confrontational and involves colourful posturing full of ten second media clips. The
resulting public misconception often makes it difficult for union leaders to
convince their membership that a better informed participatory form of
negotiation is more effective.
No labour code could or should prescribe bargaining styles for the parties. Each
set of negotiations will take on its own dynamic that reflects the history and
culture of the relationship of the parties and the direction they will take during the
term of the agreement that is being negotiated. All a labour statute can do is to
foster a culture of responsible problem solving and give the parties the affordable
supports that are necessary to bring that about.
2
Kingston: Industrial Relations Centre, queen's University, (1992), pages 2-3
The International Environment and Obligations
Canada is a trading nation. Canadian businesses and unions cannot operate in
isolation. They work and thrive in the international context and must gain the
respect of the global community as well as pay heed to global competition.
Consequently, any considerations about the future of collective bargaining and
the Canada Labour Code must be made in light of Canada's international situation
and obligations.
Impacts of Global Competition
The labour component of exports is becoming increasingly important. It is easy to
say that our labour relations environment must help us be competitive; both
labour and management recognize that without markets there are no jobs. But we
must decide the types of jobs we wish to develop and sustain, and the social and
economic values that will support our overall competitiveness.
Each of our competitors has different labour policies, just as they have different
resources and different strengths within their workforces. When we compare
ourselves to other nations, we must be cautious not to compare ourselves with
only one element of each
society. Canada, like every country, faces an integrated set of possibilities: a low
wage economy comes with low domestic consumption; high levels of education
increase the ability to compete in areas of high technology; an innovative and
flexible workforce can adapt quickly to new competitive situations.
Our choices, taken together, determine our ability to compete. A country cannot
simply adopt one aspect of another nation's strategy without recognizing the
impact that this will have on other domestic policies. We may be tempted, for
example, to modify our labour laws and other aspects of our social policy to
attract investment. Where laws can be improved within Canada's overall labour
and social context, such ideas should be adopted. But we must be cautious of an
unthinking downward spiral, where we strip our laws of their balance and
protection in the name of economic flexibility, without regard to the social
consequences. To make these choices sensibly, we must be conscious of the way
our system of labour relations actually works and, we must be confident that,
despite occasional conflict, it will help to keep Canadian labour productive and
competitive.
This is particularly true in our dealings with the United States, because of its
importance not only as a trading partner, but also as a principal investor in our
economy. American laws are in some respects similar to Canadian laws, but there
are subtle differences. For example, American employers spend much more on
third party insurance programs to cover health care. Americans also customarily
spend more of their own funds on higher education. We make no comment on
which social policy is right, but simply point out that one cannot extract particular
aspects of a country's labour policy for comparison without looking at the
underlying compromises and consequences.
Maintaining International Labour Standards
Canada has long been active in supporting international labour standards. Such
standards work to protect countries against the labour equivalent of product
dumping. Few countries, for example, can compete with a nation that exploits
child labour. Canadian society would never tolerate such a social policy at home.
To protect our competitive position, we encourage other countries to abandon
such practices as well. We attempt to ensure minimum standards for the
treatment of labour by accepting for ourselves, and enforcing against others, a
series of standards through our international treaties.
Two of our international commitments are particularly important to our labour
policies. They are the International Labour Organization (ILO) Conventions and the
North American Free Trade Agreement (NAFTA).
"Collective Bargaining" is a paradoxical system. There is a basic characteristic of
the collective bargaining system that is seemingly contradictory. Paradoxical as it
may appear, collective bargaining is designed to resolve conflict through conflict,
or at least through the threat of conflict. It is an adversary system in which two
basic issues must be resolved: how available revenue is to be divided, and how
the clash between management's drive for productive efficiency and the workers'
quest for job, income and psychic security are to be reconciled. Other major
differences, including personality conflicts, may appear from time to time but
normally they prove subsidiary to these two overriding issues.
For the most part Canada has deliberately opted for a system in which disputes
over these matters may periodically be put to a test of economic strength in the
form of a strike or lockout. Although this system may seem costly, it may well be
more healthy and less expensive in resolving labour-management disputes than
any other method. Barring the opportunity to have an economic confrontation
from time to time, the parties are compelled to contain their differences or submit
them to some kind of binding third party intervention. In neither event is there
assurance of a result that would settle the matter or clear the air. Resort to
economic sanctions might still prove inevitable. An employer might shut his
operation. Employees might engage in absenteeism or slowdowns or industrial
sabotage. The advantage of the present collective bargaining system in allowing
the parties to let off steam may, in the long run, be more important than the
traditionally accepted role of a potential work stoppage as a means of inducing
the parties to resolve their differences. The strike or the lockout thus may serve
either as a catalyst or as a catharsis, if not both.
Canadian Industrial Relations: The Report of the Task Force on Labour Relations
(Woods Task Force) December 1968, paragraphs 392 and 393.
International Labour Organization (ILO) Conventions
Ratification of an International Labour Organization (ILO) Convention involves an
undertaking to implement the Convention throughout the country. Although the
authority to ratify an ILO Convention is exclusively federal, the implementation of
most ILO Conventions falls under both federal and provincial jurisdictions, given
the division of powers over labour matters under the Constitution. Consequently,
the longstanding practice in Canada has been to ratify a Convention only if all
thirteen jurisdictions concur and undertake to implement the Convention's
requirements within their respective jurisdictions.
Canada has ratified 27 of the ILO's 176 Conventions, including major ones
covering basic rights such as freedom of association, discrimination in
employment, and equal pay (See Appendix D for a list of ILO Conventions ratified
by Canada). There is also a high degree of compliance with many other
Conventions which have not been ratified because a few of their requirements are
at variance with the situation in some or all jurisdictions. For example, while there
is substantial compliance in Canada with ILO Convention 98 on the Right to
Organize and Collective Bargaining, it has not been ratified because in some
jurisdictions, either farm workers or members of certain professions are excluded
from collective bargaining.
The Freedom of Association Committee of the ILO examines complaints of
violations in member states of freedom of association Conventions and principles.
Because freedom of association is one of the principles embodied in the ILO
Constitution, to which all member states are bound, the Committee may examine
complaints against any member state, whether or not they have ratified these
Conventions.
Since 1980, approximately 45 complaints have been made against Canada. Less
than ten complaints concerned measures adopted by the federal government; the
others involved the provinces. The largest number of complaints involved the
public sector and dealt with issues such as wage restraints, restrictions on the
right to strike, and exclusions from collective bargaining.
Back to work legislation adopted by Parliament to end disputes under the Canada
Labour Code in industries such as postal services, railways and grainhandling has
been the subject of most of the complaints. The ILO concluded that the legislation
was not in conformity with ILO principles since these services are not considered
"essential" as defined by the ILO. Since 1983, the ILO has defined essential
services as those "whose interruption would endanger the life, personal safety or
health of the whole or part of the population." Both the definition of essential
services and the issue of recognition of the right to strike (not specifically
provided for in any ILO Convention) continue to be the subject of discussion at the
ILO.
The North American Free Trade Agreement (NAFTA)
Canada, the United States and Mexico are signatories to the North American
Agreement on Labour Cooperation (NAALC), a side agreement of the North
American Free Trade Agreement (NAFTA). The overall objective of NAALC is to give
effect to the labour-related commitments expressed in the Preamble of NAFTA.
Specific objectives of NAALC are to: improve working conditions and living
standards in each country; encourage cooperation to promote innovation and
rising levels of productivity and quality; promote publication and exchange of
information to enhance mutual understanding of each country's laws; oversee
cooperative labour-related activities; promote compliance and the effective
enforcement by each country of its labour laws; foster transparency in the
administration of labour law; and to promote a number of key labour principles.
The NAALC does not establish common minimum standards, but in the annex to
the agreement does provide guiding principles for the signatory countries, in the
following areas, subject to their own domestic laws: freedom of association and
protection of the right to organize; the right to bargain collectively; the right to
strike; prohibition of forced labour; labour protection for children and young
persons; minimum employment standards; elimination of employment
discrimination; equal pay for women and men; prevention of occupational injuries
and illnesses; compensation in cases of occupational injuries and illnesses; and
protection of immigrant workers.
The agreement is based on the domestic enforcement of domestic law, and
respects each country's sovereignty. The agreement strives to settle disputes
through cooperation, but does contain an enforcement mechanism. Where
countries fail to enforce their own domestic labour standards and do not correct
problems as they arise, they may be subject to a fine that is paid into a special
labour fund to be used to support improved enforcement of labour laws in the
country being fined.
At present, these international involvements may seem distant to Canada's
internal labour policies. But as the future unfolds, the ability of individual
countries to maintain labour standards at home will depend increasingly on their
global influence.
Chapter 4
Considerations for Reform
•
•
•
•
Finding Balance
Collective Bargaining in the New Economy
The Politicization of Labour Relations
Criteria for Reform
We have called our report - "Seeking a balance". This reflects our approach to our
task as well as the delicacy of designing labour relations policy in a free and
democratic country that depends, for its standard of living, on the productivity of
its labour force.
Finding Balance
There are a number of competing values and interests that must be
accommodated, if we are to find the stability in our labour relations necessary for
adapting to change.
The Canada Labour Code must remain an instrument through which workers,
collectively, can secure fundamental rights and freedoms. The mechanisms and
techniques of the past were based more on traditional labour relations attitudes
and behaviour which were, above all, confrontational. The new modus vivendi
requires that alternative approaches be offered, based on healthy cooperation and
the joint pursuit of common goals.
Social and Economic Values
The first balance that must be found is between social values and economic
values. Labour is more than just a commodity, to be auctioned off without regard
to the underlying human condition. In addition to the income that it provides,
employees see work as an expression of their humanity, as an outlet for their
creativity. They look to work as a source of social security, for its predictability and
for the attendant benefits. Employees also seek, quite naturally, the ability to
influence their working environment. These are vital and common aspirations,
essential for a healthy and productive workforce.
Secure jobs are the foundation for both social and economic benefits. In a
competitive world, these jobs depend upon the ability of a nation to generate
economic activity and to compete in an increasingly global marketplace. Many
jobs depend on domestic consumption, on the ability of Canadian workers to buy
Canadian products and services. Jobs also depend upon both domestic and foreign
investment. This means that it is not only how an economy actually performs that
is important, but how it is perceived to perform.
Social priorities and economic priorities are often complementary. A healthy, well
educated workforce can produce a higher standard of living as well as a more
competitive position. But these priorities can also conflict.
For example, we see major financial institutions increasingly operating beyond
national borders, becoming almost states within the state; we see some business
profits rising to unprecedented levels. Yet, at the same time, we witness greater
poverty in some segments of our society. We see a casualization of employment
and an erosion of working conditions.
Given this context, Canada must continue to facilitate means by which individuals
can express themselves through democratic intermediary groups. Free collective
bargaining is one important example. Any retreat by the state from its role as
guardian of the public interest and, at the same time, any exclusive concentration
of responsibility for major socio-economic directions in the hands of the state can
only lead to serious problems. It is not only the absence of rights and freedoms
that can lead to the growth of disorder, but also, and perhaps more importantly,
the sense of injustice that results from the inability to secure these rights and
freedoms.
Instruments of Labour Policy
A second balance that must be achieved is one between the various instruments
of labour policy. The role of labour policy generally is to strive towards an
appropriate allocation of work and the distribution of the proceeds of that work
within the community.
We leave much of the distribution process to market forces. However, we also
accept, and through our international role, encourage other countries to accept,
basic standards that protect and enhance the standard of living and conditions of
work of employees.
Some of our basic rights, like freedom of association and expression and equality
before the law, are enshrined in the constitutional documents. Other fundamental
socio-economic values, such as property laws and the right to safe and equitable
working conditions, are important, although they lack constitutional status. Both
sets have the same basic objective - to affirm the dignity and happiness of the
human person with respect to his or her environment.
Our report focuses on Part I of the Canada Labour Code, which is the law of
collective bargaining. But this is not the only policy instrument used to adjust
labour policy in Canada. Other instruments include employment standards like
those set out in Part III of the Canada Labour Code, and occupational health and
safety provisions like those in Part II of the Code. In addition, we have: a workers'
compensation system; statutory protection against discriminatory treatment in
employment; an employment insurance program; and workplace training
initiatives. These instruments, working together, influence labour relations and its
outcomes.
Moreover, the influence of collective bargaining is not confined to employees
covered by collective agreements. Free collective bargaining can also have an
impact on non-unionized workers. Employers sometimes design their wage
structures to be competitive with unionized rates to ensure they keep their best
employees, or, in some cases, to avoid unionization. Consequently, collectively
bargained rates can have an influence throughout the workforce.
Labour and Management Interests
A third balance is the one between the interests of labour and management.
Employers and trade unions both serve a vital role in our society and in our
economy. Indeed, the balance of tensions between their interests is what drives
settlements and creates enduring collective solutions. Behind the stereotypical
image of labour and management as adversaries lies a vast network of
cooperative and mutually beneficial labour management relationships. Labour
disputes are news; settlements are rarely reported. But the quiet reality is that
enlightened employers and trade unions can protect their own interests, while
respecting the others' needs.
In our experience, Canadian trade unions exhibit a high level of internal
democracy and genuinely represent the interests and wishes of their members.
This sometimes makes it difficult for trade union leaders, as individuals subject to
elections, to exhibit publicly the flexibility and reasonableness required to achieve
responsible collective agreements. Again, it is a question of achieving a balance.
However, the submissions we received from representatives of both management
and labour convince us that trade unions continue to demonstrate creativity,
responsiveness and democracy.
Labour unions deserve recognition for their role as representatives of employees.
While many workers do not choose collective representation, many others freely
do. As spokespersons for such a significant segment of Canada's working
population, unions are entitled to a full seat at the table when labour and related
social and economic policies are being decided.
Employers too deserve recognition for what they do. Capital can be used in many
ways, and a country should be grateful when it is used to employ people. Without
management and labour working together, we cannot sustain the domestic
consumption, the job creation and the production that are essential to support our
social and economic well-being.
Rights and Responsibilities
A fourth balance that must be achieved is between rights and responsibilities. We
have adopted a system of collective bargaining that allows employers and
employees through their unions to negotiate and periodically adjust terms and
conditions of employment. This system does not just grant rights to strike or to
lockout. It also imposes responsibilities; to obey the rules of good faith bargaining
and duties of representation set out in the Canada Labour Code and in the general
law, and, to acknowledge and respect the interests of the broader community in
their dealings with each other. The fair and effective administration of the Labour
Code is essential to ensure that this balance between rights and responsibilities is
maintained.
Individual versus Majority Rights
A fifth balance to be considered is the balance between the rights of individuals
and the rights of the majority. In North America, unlike other industrial countries,
we have chosen to use a majoritarian system of industrial relations. The choice to
have or not to have a union is made by the majority within each workplace. This
choice binds the minority. Consequently, in any workplace, there will inevitably be
dissenters who oppose union representation. But dissent is a healthy and normal
part of any democratic system. As with our political system, the option to revisit
the choice (via the next election) occurs only at set intervals. Between these
periods support may wax and wane. But it is not a system based on instant
"opinion poll" democracy.
The balance between individual and majority values is reflected in several ways.
The Code protects some basic individual rights and secures the right to fair
representation for all. The Code also provides decertification mechanisms so that,
periodically, those who oppose continued representation can seek majority
support for its cancellation or replacement.
Collective Bargaining and the Public Interest
A sixth balance that must be maintained is one that recognizes both the values of
collective bargaining and the importance of protecting the health, safety and
welfare of the public.
A basic premise of the Code is that collective bargaining and the constructive
settlement of disputes promotes the "common well-being" of this country. This
recognizes that resolution of industrial issues by the parties brings a stable and
productive working environment which benefits them and the economy of the
nation.
A further premise underlying the Code is that the parties themselves are the best
architects of their situations. Therefore, through statute, we promote voluntarism,
encouraging the parties to settle their own collective agreements, giving them full
scope to negotiate terms and conditions of employment and allowing them to
design their own dispute resolution mechanisms. We give them the opportunity
and responsibility to codify their own affairs. We restrict or limit these rights as
little as possible.
But these two premises - the value of collective bargaining and voluntarism - must
also be balanced with the need to protect the public interest. These two premises
are attacked by the critics of collective bargaining when strikes or lockouts have
significant impacts on the public or financial interests of the country. For example,
work stoppages in the postal, transportation, or grain sectors can have an
enormous effect upon the public. A work stoppage by firefighters at an airport can
endanger lives.
The web of checks and balances in the Code which allows collective bargaining to
operate effectively must also take into account the need to protect the health,
safety and welfare of the public in an industrial dispute.
Power Relationships
Finally, we must achieve a balance of power. Underlying the legal framework of
our labour laws are some important power relationships. Canadian unions and
employers, by and large, accept the fact that their activities must be carried out
within the legal framework, a framework that gives both management and unions
advantages as long as they stay within the law. Acceptance of this arrangement
depends on each side seeing the balance of these advantages, and foregoing the
exercise of raw power either by withdrawing labour or the opportunity to work
illegally, or by resorting to other extra-legal tactics.
An employer, or at least that part of an employer that controls the flow of capital
to the enterprise, has the power to eliminate Canadian enterprises by moving its
money elsewhere. The mobility of capital is a vital and increasingly dynamic
ingredient of collective bargaining. Few national policies can restrain this mobility,
and our acceptance of free trade reduces our ability even further in this area.
On the employee side, there is the underlying power to withdraw labour.
Employees can exercise power in dramatic ways, by conducting spontaneous
strikes whether legal or "wildcat". They have the power (although not the legal
right) to do so at any time. More subtly, employees have the power to engage in a
relatively silent withdrawal of work, by doing work, but with less vigour and
attention than normal. Management can influence the effect but not control it.
Employee productivity is a function of employee attitudes towards work, the
workplace and the employer. Unresolved employee discontent can diminish
productivity, and laws cannot ensure that an employee is content and therefore
productive. Employers can fire the least productive employees, but that rarely
motivates those who remain.
These are the basic realities underlying the system of work. In saying this, we do
not imply that all negotiations take place under imminent threat of a flight of
capital or the direct or indirect withdrawal of labour. However, for the negotiation
process to succeed, both sides must temporarily surrender the exercise of these
residual powers, in the belief that our negotiating system can better
accommodate their needs. Yet at the same time, both sides must also continue to
be respectful of the other's ability and potential to exert power.
A labour code must be careful to maintain the natural balance of power. Any
legislative scheme which tips that balance leads to uncertainty, instability and
discontent.
Collective Bargaining in the New Economy
There is undoubtedly an emerging new economy. There is a changing workplace.
But, not everything is new. Particularly in the federal sector, there are still a
substantial number of employees working in traditional jobs, in our railways, our
trucking industry, banking, and even in industries like broadcasting and
telecommunications. Despite the need for some new policies concerning new
forms of work, there is still a need for collective bargaining. Thus a large part of
our report is devoted to improving and updating that system, not replacing it.
We accept as fundamental that employees are entitled, if they wish, to bargain
with an employer over wages and the terms and conditions of work. We also
accept as fundamental the proposition that employees should be free to do this in
concert with each other - to bargain collectively. Their bargaining power is the
ability and the right to withdraw their work.
Our system sets out a framework for achieving a balancing of these interests in an
orderly way, one that prevents negotiations and withdrawals of services from
taking place in a random fashion. Parties must first bargain in good faith and
attempt to reach a collective agreement through free collective bargaining. Free
collective bargaining means that each party, acting within the rules, must be free
to agree to a position or disagree, depending upon their own view of their best
interests. Only then can recourse be made to a strike or lockout. Although this
seems somewhat paradoxical, we have yet to find a better system for resolving
disputes.
"Collective Bargaining" is a paradoxical system
It is time to consider other systems to allow worker representation outside of
collective bargaining and explore new ways of governing employment in some
areas. We allude to some of the advantage barriers, and options, later in this
report. But, for now, and particularly in the federal jurisdiction, such options
should only supplement, not replace, our collective bargaining system.
The Politicization of Labour Relations
We believe that labour legislation should provide a framework within which the
parties can work out the details of their collective bargaining agreements. It is not
designed to set the outcome of disputes; those are left to the parties, as long as
they abide by the Code's rules of fair conduct.
Throughout our deliberations, we heard both labour and management comment
on the need for stability in our labour legislation. Both sides were reacting to what
they view as excessive experimentation in the labour law reforms of a number of
provinces. Undoubtedly there is room for political judgement about where the
balance in our laws should lie. Some would push the pendulum one way, some the
other. However, the concern identified by both sides is that the pendulum should
not be pushed too far or too frequently. To do so destroys the predictability and
underlying credibility upon which an effective collective bargaining system
depends.
We identified a number of disadvantages of undue politicization of our labour
relations laws. First, it distracts the parties from their primary role of negotiating
appropriate collective agreements, tempting them instead to seek political "fixes"
for what should be mutually bargained solutions. Second, it introduces an element
of political confrontation into bargaining relationships, which undermines the
ability of the parties to communicate frankly and directly with each other. Third, it
creates the habit of seeking legislative intervention into collective bargaining
disputes. This has a long term corrosive effect and, in our experience, causes
more labour disruption than it averts. Fourth, it implies that labour relations is
simply a political question, which denies the fundamental compromises and selfdetermination inherent in our present legislative scheme. Finally, it leads to
competition between jurisdictions, where one jurisdiction is pressed to minimize
the impact of its laws to attract jobs from another. In Canada, in certain cases, this
had led to a fragmentation of national bargaining structures and unnecessary
variances in the various labour law regimes. This adds both cost and complexity
to doing business in Canada.
Criteria for Reform
Across the country, labour and management were consistent in their affirmations
that the Code has served industrial relations well for the past two decades.
Submissions expressed concern that recommendations for reform might
fundamentally alter the delicate balances as well as the fundamental rights and
freedoms recognized in the Code. Both labour and management also agree that
frequent, short-term disruptions to labour policy are unproductive.
Further, they recognize that the most efficient and workable collective bargaining
system is one which places the greatest degree of responsibility for their actions
on the parties themselves. Therefore, the purpose of labour legislation and reform
must be to establish and protect the general framework for collective bargaining
to allow the parties to operate.
In the federal sector, labour law reform must be based upon rational criteria which
meet the long term needs of the parties and the public interest. Areas for reform
must as far as possible respect the consensus of the parties on the need for
reform, and reflect any agreed upon solutions.
Accordingly, in recommending reform, we will utilize the following premises:
• the existing Canada Labour Code (Part 1) basically continues to serve its
•
•
•
•
constituencies well;
stability is desirable and pendulum-like changes to the Code do not serve
the best interests of the parties or the public;
consensus between the parties is the best basis for advocating
legislative change;
recommendations should be enactable, long lasting and premised upon the
overriding concept of voluntarism.
Therefore, any reform to the Canada Labour Code, Part I should be based upon
the following criteria:
• Consensus has been achieved by the parties regarding the need for and the
nature of the reform that is consistent with the public interest.
• There is a demonstrated area where the existing law is no longer working or
no longer in line with public policy.
• It has been demonstrated that the provisions of the existing Code do not
facilitate the intentions of the Parliament of Canada as set out in the
Preamble of the Code.
• It has been demonstrated that the reform is necessary to:
• a) encourage and ensure recognition of the social purpose of
collective bargaining as an instrument for the advancement of
fundamental freedom in Canadian industrial society;
• b) ensure access to the fundamental rights to associate and act
collectively;
• c) maintain the general framework for collective bargaining and allow
the parties to operate within that framework;
• d) encourage voluntarism and good faith negotiations rather than
prescribe results;
• e) give recognition to the value in the workplace and society of
collective bargaining between unions and employers;
• f) facilitate the efficient resolution of workplace issues by the parties.
• g) enhance the ability of management and labour to adjust and thrive
in an increasingly global workplace.
Chapter 5
The Scope of Collective
Bargaining
• The Preamble to the Canada Labour Code, Part I
• Access to Collective Bargaining
• First Nations Labour Relations Questions
The Preamble to the Canada Labour Code, Part I
The Preamble to Part I of the Canada Labour Code is a guide to the principles and
purposes which must be respected.(1) The Preamble sets out policies it hopes to
achieve and establishes the field of application of the Act to assist with the
interpretation of the meaning of its terms and provisions.
The Preamble is often used by the Canada Labour Relations Board to help
determine the Code's intentions. About fifteen percent of Board decisions refer
directly to the Preamble. In the Board's interpretation, Parliament inserted the
Preamble to promote a positive attitude towards effective industrial relations.
Further, the Preamble clearly establishes that the fundamental objective of Part I
of the Code is to protect and facilitate freedom of association which is the basis
for collective bargaining.(2)
Not surprisingly, the views of employers on the existing Preamble differ from
those of labour. Management strongly believes that the Preamble is outdated in
today's context. Many believe that the Preamble should be amended to give
recognition to the importance of productivity and competitiveness in a global
economy to both employers and employees. This would then serve to provide
persuasive and binding instructions to the Board when applying the Code.
Some asked that the Preamble recognize individual as well as collective employee
rights. However, some management groups are reluctant to see values such as
labour-management cooperation added to the Preamble out of fear that this might
result in a reduction of management rights.
Unions, on the other hand, show no enthusiasm for introducing the effects of
globalization into the Preamble, believing that such changes would weaken the
real objectives of Part I of the Code. They feel that if changes are warranted in the
Preamble, they should strengthen support for collective bargaining, including the
expeditious resolution of disputes and the right to engage in strikes or lockouts.
In our opinion, the existing Preamble reflects two of the fundamental freedoms
which are revered by Canadian society : association and expression. The Code
reflects these values from a collective point of view. This could come into conflict
with any legal interpretation which would favour an individual firm's economic
point of view.
A preamble expresses Parliament's overall intentions without overriding the
Code's carefully worded and specific provisions. It is a guide not a directive. We
think that this is what Parliament intended and that this should continue. A
purpose clause has the opposite effect because, as part of the enacted law, it can
modify and sometimes distort in unpredictable ways, the established meaning of
specific sections.
Because the current Preamble has acted as the cornerstone for the Canada
Labour Relations Board and has facilitated judicial understanding of the Act, we
believe that any alterations to the Preamble would dilute the fundamental values
which are the basis for Part I of the Code. A change in the Preamble would disrupt
established interpretations. Moreover, a shift from a Preamble to a Purpose clause
could potentially be even more disruptive.
Consequently, we believe that the current Preamble is adequate and needs no
modification.
Recommendation:
We propose no modification to the existing Preamble.
1
Canada (Labour Relations Board) v. Yellowknife (City of ), [1977] 2 S.C.R. 729;
C.A.I.M.A.W. v. Paccard of Canada Ltd., [1989] 2 S.C.R. 983; In Re McNey [1992] 3
S.C.R. 475.
2
Télévision St-François Inc., (1981) 43 d.i. 175; Canadian Broadcasting Corp.,
(1982) 44 d.i. 1; Sedpex Inc., (1985) 63 d.i. 102.
SECTION I I
Labour Relations
Processes
Access to Collective Bargaining
A few simple terms like employee, employer, trade union and bargaining unit
define who can participate in collective bargaining. It is the statutory definitions
given to these terms, and the case law that has developed concerning them that
define the scope of the Canada Labour Code. For example, a person who is not an
employee cannot fall within a bargaining unit or seek certification. By the limits
and extensions placed on these terms, the law controls access to collective
bargaining.
There are some relationships very similar to that of employer and employee,
which nonetheless fall outside of the Code's definitions. One of these involves the
relationship between performing artists and the producers of the productions in
which they appear. The law makes special provision for negotiations for such
persons in a special statute - The Artists and Producers Professional Relations Act.
(3) There are other exceptional forms of work for which some form of bargaining
may be appropriate. Adjudicators must test the facts of each case, to see if they
fall within the Code's definitions. Legislators, on the other hand, must choose
between the options of amending the Code's definitions; passing special
legislation; or deciding to leave such persons to bargain by their own devices
without a statutory basis.
Under the present constitutional arrangements, the government of Canada passes
and administers collective bargaining laws for employees in the federal sector,
and the provinces do the same for those in the provincial sphere.
This has not always been the case, and is not necessarily the only way Canadian
labour relations could be regulated. For example, private pensions, workers
compensation and recently, minimum wage, have all been in one way or another
delegated for provincial administration albeit under authority of federal laws. For
much of this report, our observations and recommendations are based on the
assumption that the present constitutional arrangements will continue for the
foreseeable future. However, in Section IV we mention the options available for
other forms of administration.
The Definition of Employee
The 1973 Canada Labour Code reduced the exclusions from collective bargaining
to a minimum and extended coverage of the Code to employed professionals,
private constables (although in a separate bargaining unit) and to employees
performing supervisory functions. Federal employers have generally accepted
access to collective bargaining for the first two groups of employees. But, many
continue to oppose the inclusion of supervisors and urge that the definition of
employee be redefined to exclude supervisors as well as persons performing
management functions.
Exclusion of Supervisors
Managerial exclusion is based on the recognition of an employer's need for a loyal
and effective management staff to carry out its operations successfully, and
consequently, on the necessity to create some distance between management
and employees in order to avoid conflicts of interest. The Board's interpretation of
managerial exclusion
is that it covers only managers who exercise real and final decision-making
authority on employment issues, as opposed to those who merely participate in
the management process. For instance, managerial exclusion would not apply to
first-line supervisors or junior managers acting only at the first step of the
grievance procedure, in consultation with senior management, even though they
may play an important role in the employer's operations.
As mentioned earlier, we are witnessing a change in management structures.
Management is "flattening out" and there is increased use of concepts like selfmanaging teams. These changes will continue. The Board, under the present law,
has shown flexibility in adapting the test to new circumstances, recognizing that
its interpretation of the definition controls access to collective bargaining.
The Board's interpretation of managerial exclusion is well known to the parties
and we consider it appropriate, including its approach to supervisory
responsibility. Therefore, no change to the definition of employee is
recommended.
Access of Part-time & Casual Employees to Collective Bargaining
The fact that some persons work on a part-time or casual basis is not a
determining factor in establishing the employer-employee relationship. The Board
has not denied employee status to individuals who work a minimum number of
hours per week or who perform work for an employer on an irregular basis. The
real obstacle to collective bargaining for these employees lies in the
determination of appropriate bargaining units. The Board has the flexibility to deal
with appropriate bargaining units for such employees. This is not an area where
legislative intervention is desirable.
Collective Bargaining Rights for the R.C.M.P.
Under current legislation, members of the Royal Canadian Mounted Police have no
statutory collective bargaining rights.Part I of Schedule 1 of the Public Service
Staff Relations Act (PSSRA) includes the R.C.M.P. as part of the "Public Service".
Accordingly, as for other public service employees, the Treasury Board should be
the employer, representing Her Majesty. However, subsection 2(e) of the PSSRA
which defines an "employee" specifically excludes "a person who is a member or
special Constable of the R.C.M.P. Therefore, these R.C.M.P. employees do not have
access to collective bargaining under the PSSRA. The R.C.M.P. is also implicitly
excluded from the application of Part I of the Code as well.
Submissions by l'Association des membres de la police montée du Québec, the
"O" Division Members Police Association, the "E" Division Members Association,
the Capital Region Members Police Association, the Canadian Police Association
and the Ontario Provincial Police Association requested that Part I of the Code
cover the R.C.M.P. so that its members could engage in collective bargaining. They
did not seek the right to strike, accepting arbitration as the appropriate dispute
resolution mechanism. Their submissions dealt with the history of employee
relations at the R.C.M.P., describing perceived inequities and frustrations from the
denial of collective bargaining rights. We cannot comment upon the perceived
inequities. However, it is within our mandate to receive these submissions.
A Bill is currently before Parliament that has far reaching implications on the rights
of R.C.M.P. members and management, but which does not contemplate a
collective bargaining regime.
Currently, under the federal jurisdiction, the Ports Canada Police and the Railway
Constables have: the statutory freedom of association for the purpose of
collective bargaining; official recognition of a trade union or association; the right
to bargain collectively by the recognized trade union or association; independent
mechanisms for the resolution of impasses in collective bargaining; and the
settlement of rights disputes by binding arbitration. In many provincial
jurisdictions, municipal and provincial police forces enjoy similar rights. Much of
the R.C.M.P.'s modern-day activities consist of contract policing for eight provinces
and approximately 200 municipalities. To a great extent, the duties and
responsibilities of the R.C.M.P. and their provincial or municipal counterparts are
indistinguishable.
In Canada, most collective bargaining schemes for police are contained in distinct
statutes. This is necessary because of the unique nature of police responsibilities
and discipline processes, the importance of policing to the communities being
served, and the incompatibility of some labour relations concepts to policing in
general. Accordingly, it may not be appropriate simply to extend coverage of the
Code to R.C.M.P. members. However, members of a police force could be granted
access to collective bargaining without denying the need for operational control
and without jeopardizing the public interest.
Careful analysis is required to determine the appropriateness of collective
bargaining rights to members of the modern R.C.M.P. We did not have the time to
consider all of the possible factors and impacts, nor did we hear from any of the
other stakeholders involved. Further, we recognize that the Code may not be the
best instrument for protecting all of the interests which are affected by the
R.C.M.P. However, we do believe that issues raised in the submissions warrant
further study and careful consideration.
Recommendation:
The government should undertake a process to determine the
appropriateness of R.C.M.P. officers having the right to organize and to
engage in collective bargaining under a statute separate from the
Canada Labour Code. Such a process should consider the interests of
members of the R.C.M.P., existing associations of members,
management and the public.
Council of Trade Unions
The only concern we received over the definition of trade union relates to councils
of trade unions. Some parties want to ensure that a council formed by two or
more trade unions would be treated the same way as a single union, acting alone.
The West Coast Ports Inquiry report recommended amending the definition of
"trade union" in section 3 of the Code to include "an association of trade unions or
council of trade unions".
Section 32 of the Code allows councils of trade unions to apply for certification in
the same manner as a trade union. To obtain status as a council of trade unions, a
council must meet the same requirements as a union and must also have two or
more unions as its members, all of whom satisfy the test under the Code for trade
union status. It must also have appropriate authorization from each member
union to act on their behalf.(4)
The Board has exercised a discretion to refuse to certify a council even if it meets
the conditions necessary for certification. The Board will not interfere with a
council's internal affairs and management, nor does it refuse to certify for reasons
completely unrelated to the fact that the applicant is a council rather than a trade
union. But the Board does take labour relations history into account when
deciding how to exercise its discretion, for example, where a council is created as
a means to maintain the lines of work jurisdiction that the Board found
inappropriate during a global review of bargaining.
Some unions argue that this discretion should be kept to a minimum. They argue
that if the Board decides to merge bargaining units, the two unions involved
should be given a chance to form a council through which to administer the
enlarged single unit.
When bargaining units are modified, we agree that the incumbent trade unions
themselves should be encouraged to work out as many of the transition
arrangements as possible. However, we do not believe that the Code should be
amended to remove Board discretion to refuse to certify a council. A council
should not be certified where it finds the council's structure will inhibit rather than
foster the changes the Board has found it appropriate to implement.
Off-Site Workers
The traditional concept of employees working together at the employer's
premises is no longer the only model of a Canadian workplace. A new category of
workers and employees is emerging. Telemarketing, telecommunications and
insta-banking are but a few of the examples of enterprises that can be operated
by a network of employees linked through off-site computer technology both to
their employers and to the markets they service. People are no longer required to
be physically at the employer's premises or even to operate the employer's
equipment to work for that employer.
This development has had both positive social and economic implications. It has
enabled groups of otherwise disadvantaged people to gain access to gainful
employment. The disabled and parents of young children, who for a long time had
difficulty finding employment which accommodated their particular
circumstances, have gained access to the paid labour force by working at
computer terminals in their homes.
However, it is apparent that there may be some negative aspects to this trend as
well. People working off-site are isolated from each other and may be unable to
acquire traditional employment benefits such as pensions or health plans. While
many are treated well and compensated fairly, others are at risk of becoming the
"piece workers" of the electronic age, with few effective protections against
exploitation.
Because of these potential problems, unions have expressed interest in organizing
workers who are in this situation. But there are practical impediments to acquiring
bargaining rights. An interested union will find it virtually impossible to locate and
contact these workers. An employer is unlikely to hand over a list of teleworkers
or off-site employees to a union interested in organizing. Because of the isolated
nature of their circumstances, these workers will often be unaware of who else is
working for the same operation so that they cannot contact each other.
Consequently, off-site workers are as isolated and inaccessible as workers in
remote site locations such as mines, perhaps even more so.
Section 109 of the Code was enacted to give trade unions access to employees
living in isolated locations on premises owned or controlled by employers, where
access would otherwise be impracticable, and where an access order from the
Board is "reasonably required" to solicit union membership, negotiate a collective
agreement, process a grievance or for the union to provide service to the
employees.
Unions and representatives of women's groups have asked that similar provisions
be added to the Code to give unions the opportunity to access, organize and
service off-site employees. However, employers have voiced serious concerns
over such proposals, arguing that their employees' personal security and privacy
could be jeopardized.
The positions taken by both sides in this issue have merit. Off-site workers will
never have the opportunity to consider, let alone acquire, the benefits of
collective bargaining while they remain inaccessible to each other and interested
unions. But, as individuals, they do deserve privacy and personal security. All of
these concerns can and should be met by amending the Code to expand the
scope of section 109 to allow an access order. This could provide, for example,
names, addresses, and phone numbers, but at the same time require the Board to
impose conditions upon the terms of access in the interests of privacy and
security.
Recommendations:
Section 109 should be expanded and amended to give the Board
discretion to:
• grant to a named representative of a trade union, a list of the
names and addresses of employees who normally workin locations
other than the employers' premises;
• grant access to such off-site employees in whatever way is
practicable under the circumstances of each case, including, but
not limited to electronic means such as E-Mail;
In addition, section 109(2) should be amended to require that the Board
specify conditions to be imposed upon all orders granting such
information and access so that the privacy and security of off-site
workers can be protected and abuses of the information can be
prevented.
3
S.C. 1992, c.33.
4
Canadian Pacific Express and Transport Ltd. (1988), 73di183, CLRB no. 682
First Nations Labour Relations Questions
First Nations peoples are increasingly assuming responsibility for the governance
of their own affairs. The applicable laws are in transition because they involve
claims of inherent rights, rights based on treaties and recently negotiated
agreements, as well as federal and provincial laws. The more First Nations take
over responsibility for governing, the more they will become involved in labour
relations issues.
Regulation of employment is an important concern for First Nations communities
because policing, teaching, and social services, for example, can have a major
impact on community life. Some suggest that the inherent right to selfgovernment means neither federal nor provincial labour laws should apply to First
Nations employment. Others say that such questions should and will be addressed
in tri-partite negotiations about self-government.
The Constitution Act, 1867, section 91 (24) gives jurisdiction over "Indians, and
lands reserved for the Indians" to the federal government. In labour matters,
therefore, the federal government has jurisdiction if the particular enterprise is
specifically "Indian" in nature or integrally related to "Indian" lands. If not, the
provinces would normally have jurisdiction.
In determining jurisdiction, there are two primary considerations which appear in
the case law: the nature of the enterprise, and the degree of control exercised
over it by the Band Council.
The nature of the enterprise is established by examining its operations and
normal activities as a going concern. If the activity is infused with what has been
called "Indianness" or closely tied with Indian status or identity, it will fall under
federal jurisdiction. "Indianness" is determined according to factors such as
whether the enterprise is located off or on reserve, the percentage of First Nations
staff and clientele or beneficiaries, the right of employees to participate in the
election of Chiefs and Band Councils, reserve privileges, and the degree to which
the enterprise is dedicated to preserving traditional and cultural aspects, and
survival of First Nations peoples. Aside from the sphere of industrial relations, if a
provincial law of general application was seen to touch "Indianness", it could still
apply to First Nations workplaces, providing it did not conflict with an Act of
Parliament or with a treaty, by virtue of section 88 of the Indian Act.
Labour relations boards also consider the level of involvement of a Band Council
in a workplace. For example, in Whitebear Band Council v. Carpenters Provincial
Council of Saskatchewan (5) the Saskatchewan Court of Appeal held that Band
Councils' powers exist only through delegation from Parliament or by acting as an
agent of the Minister of Indian Affairs. Activities of a Band Council, therefore, fall
under "federal work, undertaking or business", and are covered by federal labour
relations. If workplace decisions are made by private entities rather than Band
Councils, provincial jurisdiction is the rule.
This raises the issue of the future jurisdiction of the Canada Labour Relations
Board in relation to activities of Band Councils and other entities established to
administer self-government agreements. Two forces may combine to increase the
Board's jurisdiction significantly. First, Band Councils may have increased
jurisdiction over matters
like policing, education, and social services, previously conducted by provinces
and municipalities. Second, Band Councils (or other comparable entities) may be
regarded, because of the federal government's plenary jurisdiction over Indians
and Indian lands, as subject to federal jurisdiction in relation to all of their
activities, notwithstanding that those activities had been previously carried out by
other levels of government. In a self-government situation, First Nations
authorities will undoubtedly be engaged in many activities that will be of a local or
private nature. However, they will do so pursuant to agreements with the Federal
Government and through the vehicle of Band Councils created and enabled by
federal laws.Elsewhere in this report, we urge the government to move towards
increased involvement by labour and management in the administration of the
Canada Labour Code. First Nations are, and will increasingly become, employers
under the Code. However, much like the federal government itself, First Nations
often have a dual role, holding responsibility for governance as well as being a
party to the employment relationship.
We cannot, in this report, address how the issue of First Nations labour relations
will emerge. But we believe it is important that a dialogue begin. First Nations
must be recognized as having a role as employers, but also as bodies with
responsibility to govern. Labour issues will arise in the negotiation of selfgovernment agreements. It would be beneficial if organized labour and First
Nations could reach consensus on the form that the resolution of these issues
should take.
Recommendations:
In proceedings before the Board, and in the discussion of labour
relations issues that affect First Nations, special recognition should be
given to the role of First Nations as employers and as entities with
responsibility for governance.
A dialogue should be encouraged between First Nations and organized
labour over the form of First Nations labour relations, particularly as this
may be affected by the emergence of new federal-provincial-First
Nations agreements concerning self-government.
5
[1982] 3 W.W.R. 554
Chapter 6
Representation Processes
•
•
•
•
Certification and Decertification
Bargaining Unit Reviews
Sale, Lease or Transfer Provisions
The Impact of Commercialization of Government Activities
In this chapter, we deal with the ways employees obtain union representation and
the way they can change or remove that representation. We also deal with the
often intricate questions about how bargaining rights, once acquired, can be
modified to accommodate the various changes in workplace structure and
ownership.
Certification and Decertification
The Code contains two broad principles. The first is that employees, by
demonstrating majority support, may choose to be represented by a trade union
through certification. Periodically thereafter, in similar fashion, they can revoke or
change that choice. The second is that once a majority of employees make that
choice to certify, they can compel the employer to bargain with their union in
good faith to reach a collective agreement. Certification thus gives access to
bargaining.
The decision to choose a union is not always an easy one for employees within a
workplace. Some will favour the move while others will be opposed. It unsettles
employers as well, because their style of operation may change with the advent
of collective bargaining. The decision to revoke a union's certification is no easier.
Employers must be cautious when such choices are being made, because overt
support one way or the other is easily seen by nervous employees as intimidating.
Organizing campaigns yield more than their fair share of unfair labour practice
allegations.Delays and acrimony in the certification process make any ensuing
bargaining all the more difficult. Most parties, when it comes to representation
issues, want the process to be as quick and as clean as possible. Unfortunately, in
individual cases, if it suits their immediate interests, they will take whatever
opportunities they can for delay or objection. Employers tend not to want
certification and unions are equally averse to revocation.
Therefore good labour relations require well managed and expeditious
certification and revocation processes. The consensus process recommended:
Certification Procedure
• The certification process takes too much time; it has to be speeded up
We hold the same view and believe that it can be done. Several provinces have
made these processes a high priority. By drastically revising procedures, several
boards have achieved average time frames of less that 30 days in total. In some
cases this has been with a card system; in others with a mandatory vote.
Certification Process
The Canada Labour Code imposes three obligations on the Board for certification
applications:
• It must have an application from a trade union.
• It must determine the unit that constitutes an appropriate unit for collective
bargaining.
• It must be satisfied of majority support for the union amongst the
employees in the unit either on the date of application or on some other
date that the Board considers appropriate.
The Board may hold a representation vote in any case and it must do so where
the union shows between 35% and 50% support for its application. Votes are
decided on the basis of a majority of ballots cast. The balance of the process is
left for the Board to decide by its Rules, its policies or its rulings in individual
cases.
Currently, the Board accepts as proof evidence that an employee has paid at least
five dollars and signed a membership card during the six months prior to the filing
of the certification application. For employees already represented by a union,
there are certain "open periods" when a new union may file for certification. These
"open periods" are: the period beginning three months before the end of a
collective agreement; the last three months of the third and subsequent years of
an agreement that is longer than three years; and twelve months after the date of
certification of a union which has not reached a collective agreement. When there
is already an incumbent union, the Board usually holds a representation vote as a
run-off between the new applicant and the incumbent. This is unnecessary where
there is overwhelming support for the new applicant, or where the incumbent
union does not contest the application.
When a union applies for certification, the Board posts a notice at the workplace.
A CLRB officer examines: the operations and organization of the employer; the
employees' wishes to be represented by the union; the views of the parties on the
proposed bargaining unit; and any other relevant issues. For a union's first
certification, it must produce evidence of its status, such as minutes of its
founding meeting and copies of its constitution or by-laws. The officer then issues
a report to the Board. Except for information about employees' wishes, this report
is public and open for comment from the employer and the applicant union.
The Decertification Process
An employee who represents a majority of employees in the bargaining unit may
apply to the Board for decertification of the union or revocation of its voluntary
recognition. Decertification applications may be made during the "open periods"
described earlier.
Also, during the first year of an initial collective agreement signed by a noncertified union, the employees may apply for revocation of the voluntary
recognition and the collective agreement. Where fraud is alleged in a certification,
parties may make an application for decertification at any time.
Exceptions to the Certification/Decertification Process
Currently, no applications can be made without the consent of the Board during
the first six months of a strike or lockout. We deal with this issue in Chapter 9. The
Board has decided that a new application for certification or decertification cannot
be made within six months of an application being rejected. Section 39(2) of the
Code disallows a decertification request before a first collective agreement is
reached, unless the Board is satisfied that the certified union has not made
reasonable efforts to enter into an agreement.
Caseload
Between 1984 and 1994, the Canada Labour Relations Board received between
126 and 227 applications for certification and between 19 and 44 applications for
revocation each year. Public hearings are held in about 12% of certification
applications and 5% of revocation applications. For the period 1990 to 1995, in
cases where no representation vote or public hearing was held, it took on average
119 days to deal with a certification application. In the same period,
representation votes were held in approximately 12% of cases which took, on
average, an extra 36 days. The holding of public hearings increased the average
disposition time to almost 12 months (see Table 6.1).
On average, the Board certifies 100 bargaining units each year, affecting
approximately 11,000 employees. The majority of those bargaining units cover
less than 30 employees; less than 10% have over 190 employees (see Table 6.2).
Over the past 10 years, the success rate for certification of new bargaining units
has been approximately 61%, while 68% of applications for decertification or
revocation disposed of by the Board have been granted.
Bargaining Unit Reviews
Bargaining units are living entities which expand and contract with the enterprise.
Frequently, particularly with large national employers, several unions represent
different segments of an employer's workforce. Sometimes, these units become
dysfunctional, because of the way job classifications are divided or through the
sheer number of units.
The CLRB has used its general section 18 power to reconsider its own decisions to
reorganize and sometimes reduce the number of bargaining units, and thus trade
unions.
In the short run, such reviews can drastically interfere with normal bargaining and
contract administration processes. They can override the choice of bargaining
agent made by employees and seriously alter a trade unions' structure. However,
in the longer run, such reviews can benefit labour relations within the enterprise,
by addressing issues such as technology or market forces which have eroded the
job duties and communities of interest that justified the original configuration.
At present, the Code contains no criteria and no specific processes or powers to
guide it through such major reviews. The authority should continue, but should be
set out in a separate section of the Code.
The Board views its role vis-a-vis bargaining unit determination as ongoing and
encourages parties to apply to vary certificates when circumstances warrant
change. At present, the Board sometimes initiates reviews of its own accord.
Further, even if an applicant tries to withdraw the application, the Board may
refuse to grant the withdrawal and continue on.
The Board will not amend bargaining units without compelling reasons. It will
review bargaining unit structures if social, economic, and technological conditions
in the workplace have evolved so that existing bargaining structures are out of
date. It will act in situations where bargaining is cumbersome and change is
necessary to streamline bargaining, or to reduce jurisdictional disputes.
In deciding whether to conduct a review, the Board is guided by whether it would
foster the development of good relations and constructive collective bargaining
practices. Applicants requesting a review must demonstrate that:
(a) the unit proposed is more appropriate and will lead to a more harmonious
relationship;
(b) the present structure or bargaining agents have resulted in poor or impossible
labour relations;
(c) there is no longer a divergence of interest between the members of the
various bargaining units;
(d) the present structure is not viable.
The Board may accept an agreement reached among the parties if it meets with
the Board's criteria for bargaining unit selection, but does not feel bound to do so.
The Code's criteria for certification are generally applied on major bargaining unit
reviews. Three general principles have been followed:
(a) bargaining units should be universal rather than enumerative;
(b) unwarranted multiplicity of bargaining units should be avoided;
(c) supervisors should not belong to the same unit as the employees they
supervise.
Once the appropriate bargaining units are established, the Board determines the
configuration of duties which will comprise each unit, and which employees will be
members of each unit; then, the Board addresses the question of majority support
in each unit. If a union wishes to represent a bargaining unit established as part of
a global review, it must fulfil the criteria regarding raiding and show support
within the unit.
The Board has usually ordered that a current collective agreement or the
conditions of employment (in the case of non-unionized workers), remain intact
for workers who are about to be represented by a new bargaining agent. If a party
requests judicial review of an interim decision, the Board will not delay its review
process pending the Federal Court decision.
Commencing Bargaining Unit Reviews
Because of the substantial disruption and expense, such reviews should be
undertaken only if directly affected parties can satisfy the Board that there are
serious problems with the current bargaining unit structures. Otherwise there is no
justification for interfering with the employees' choice of bargaining agent. The
employer or one or more of the affected trade unions should initiate the process,
not the Board of its own volition. Once a party has made the case for review, the
Board should be able to finish the review, bringing in all affected parties to the
proceedings.
Procedural and Preservative Orders
Major reviews are almost inevitably lengthy affairs, creating disruption to
bargaining and contract administration in the interim. Large employers like the
railways, Canada Post and the CBC, run complex operations; relationships
between the employer and the various representative unions have deep historical
roots.
The Board can expedite the process by working with the parties to establish
procedures for dealing efficiently with issues likely to arise in and during the
review. It should be able to make interim orders to facilitate bargaining and
contract administration during that review. For example, if the Board is going to
direct the merger of two units, it makes little sense for those units to begin
bargaining for separate collective agreements in the interim. Conversely, it is not
helpful to suspend bargaining issues indefinitely while the Board considers the
matter.
Consequential Orders
A Board decision to merge or reconfigure bargaining units generates a number of
consequential actions. Sometimes, when two units get merged, employees must
choose which of the former unions they want as their bargaining agent. This may
even result in the merger of two unions. Complex issues like seniority lists or
pension arrangements need accommodation. These issues, in the first instance,
should be left to the parties to resolve by discussions or bargaining. However, the
Board should have the power to resolve any issues on which the parties cannot
reach agreement.
Recommendations:
The Code should contain a new provision enabling the Board to
reconsider bargaining unit configurations for employers with more than
one bargaining unit. The section should provide that:
• applications must be commenced by an affected employer or trade
union;
• where feasible, the parties be encouraged to resolve the matters
before the Board, provided that the Board is satisfied that the
resolutions achieved lead to units appropriate for collective
bargaining;
• applicants must satisfy the Board that there are problems with the
present bargaining unit configuration that render one or more of
the units within the workplace inappropriate for collective
bargaining;
• the Board be empowered to make interim orders for the conduct of
its review, and for the maintenance of collective bargaining and
collective agreement administration during its review;
• the Board be given the power to make whatever consequential
orders are necessary following its decision to re-establish effective
collective bargaining and contract administration.
Single Employer Declarations
Section 35 of the Code allows the Board to declare that, when associated
businesses or undertakings are operated by two or more employers, those
employers should be treated as a single employer for the purposes of Part I of the
Code.
The Board has expressed the view that employers cannot apply, only trade
unions. Several employers suggested that the section should allow either
employer or unions to apply and we agree. Single or common employer provisions
are not only designed to protect against union avoidance schemes. They are also
useful where, for tax, ownership or risk management reasons, businesses choose
to operate associated undertakings together under common control.
Recommendation :
Section 35 should be amended to state explicitly that any affected party
may apply for a single employer declaration.
In some cases, when a single employer declaration is made, there are labour
relations consequences that need to be dealt with, such as the integration of two
workforces or choosing which collective agreement applies and for how long.
These are the same issues we have already discussed for bargaining unit reviews
and will be discussed again later with respect to sections 44 to 47.
Recommendation:
On applications under Section 35, the Board should have the power to
make any consequential orders necessary to re-establish effective
collective bargaining and contract administration for the bargaining
units of the single employer once declared.
Sale, Lease or Transfer Provisions
Successful businesses rarely remain static. Reorganizations, mergers, acquisitions,
divestitures, transfers, and leasings in whole or in part of enterprises have
become commonplace as businesses seek to position themselves strategically in
the market. These transactions all raise the question of the extent to which
representation and collective agreement rights and obligations should continue to
apply after a sale, lease or transfer occurs. The successorship provisions found in
sections 44 and 45 of the Code provide for the continuation of bargaining rights
and the protection of collective agreements where all or part of a federal business
is leased, transferred or otherwise disposed of, so long as there is a continuation
of the same business and both the seller and the purchaser operate federal
businesses. Section 47, which we discuss later in this chapter, deals with some
similar transactions involving government.
Sections 44 and 45 adequately provide that a purchaser of a business, or part of a
business, is bound by the certification, any pending application for certification,
the collective agreement, and all pending proceedings under Part I of the Code.
Section 45 adds some additional provisions in cases that involve the intermingling
of employees. Subsection 45 (1) lets the Board structure a new bargaining unit,
determine which trade union is agent for each unit, and issue amended
certificates. There are situations where some bargaining unit amendment may be
necessary, even where there is no intermingling of employees. This is particularly
so in the case of a sale of part of an undertaking. The Board's powers should not
depend upon the finding of intermingling.
Where there is intermingling of employees and two separate workforces become
one, two collective agreements may initially appear to apply. The technique the
Code currently allows for sorting this out is as follows: it declares that the
successor union's collective agreement continues to apply to the unit; it gives
either party, after 60 days, the right to apply to give a notice to bargain; and
requires the Board, in considering the application to bargain, to examine the
fairness of the way seniority provisions are (or could be) applied to the
intermingled workers.
Several parties argued convincingly that these powers are inadequate. First, the
difficulty of integrating seniority is often not a problem between employer and
successor union, so much as between employees formerly covered under different
agreements. Reopening negotiations may be a poor way to resolve these issues
which involve fairness of treatment between employees. After a reasonable
period, if the parties cannot agree, the Board should be able to resolve these
issues itself or else refer the matter for binding arbitration.
There may be other collective agreement issues that also need addressing. For
example, pension or insurance plan provisions may have no applicability to the
new employer, leaving a void. We believe the statute should allow a way of
dealing with these issues. It should afford parties time to negotiate suitable
changes, but failing that, it should give the Board the ability to decide the matter
or refer it for resolution by arbitration.
Recommendation:
The sale, lease, or transfer provisions of the Code should be written to
allow full Board authority where necessary, whether an intermingling of
employees occurs or not, in order to establish effective collective
bargaining and contract administration.
These provisions should:
• give parties ample opportunity to negotiate necessary
consequential changes
• allow the Board authority either to make any necessary decision
the parties cannot agree upon, or to direct a dispute resolution
process.
We have not proposed draft provisions. There are a number of useful provincial
models. It might be appropriate to draft one omnibus section covering each of
section 35, sections 44 to 46 and the new modification of bargaining units section
we recommended earlier.
The Requirement for Two Federal Employers
The current wording of the Code limits the application of sections 44 to 46 to
cases where the vendor and the purchaser (or whatever the relationship) are
federal undertakings. We see the need for the purchaser to be a federal
undertaking because this is what, following the transaction, makes the Code
apply. We are not convinced the vendor undertaking needs to be federal. It is not
uncommon for a federally regulated business to buy up or take over a provincially
regulated business that is subject to certification or that has a collective
agreement or both.
Except for the definition in section 44, the Board could treat the former
"provincial" collective agreement as if it had arisen through voluntary recognition.
Provided the Board has full ability to make any necessary amendments, we also
see no barrier to allowing a provincial certification to carry over (in modified
form), to the federal jurisdiction. There are a number of situations where, as a
result of sales or changes in operating style, bargaining relationships move from
provincial to federal jurisdiction, particularly in interprovincial transportation
industries. We have heard a number of accounts of unnecessary labour relations
disruption in this process, and, in some cases, the use of deliberate steps to
change jurisdictions to avoid bargaining obligations.
Recommendations:
Section 44 should be amended to remove the requirement that the
undertaking from which a business was acquired be a federal
undertaking.
Section 44 should be amended to allow the carryover, with any
necessary modifications, of provincially regulated bargaining rights and
collective agreements when an enterprise moves from provincial to
federal jurisdiction, whether or not this is as a result of a sale or
transfer.
Federal to Provincial Transfers
There is no constitutional authority for the Code to deal with successor rights in
the case of the transfer of a business from the federal to the provincial sphere.
British Columbia and Saskatchewan are currently the only provincial jurisdictions
providing for the protection of bargaining rights in the case of transfer of a
business from federal to provincial jurisdiction. These two provinces adopted a
model provision proposed in 1987 to encourage reciprocity in these matters. It is
beyond the federal power and therefore beyond the scope of this report to deal
with federal bargaining relationships that, for whatever reason, move to provincial
legislation.
Contractor to Contractor Successorship
The second concern raised with us about sections 44 to 46, and an emerging and
important issue, is the extent of protection and the continuation of bargaining
rights in the event of subcontracting or contract tendering. Often, businesses
carry on operations through contractors engaged after a tendering process for the
provision of work and services. For example, increasingly, security guard services
for pre-boarding, maintenance services for airplanes, and commissary services
are procured by the regular or successive tendering of contracts. Unions voice
concern that employees in these sectors have no real access to collective
bargaining because, if they get certified, the employer may lose its contract as a
result of the successive tendering process before, or as soon as, a first agreement
is achieved.
Saskatchewan is the only province in which a sale of business is deemed to have
occurred in cases involving successive contractors engaged in building cleaning,
food services and security services. Under the successorship provisions, there is
no need to demonstrate that an actual transfer has taken place between
successive contractors providing one of these services. Any collective agreement
binding the original contractor will flow to the successor contractor.
In Nova Scotia, the legislature has adopted a different approach by explicitly
providing that where the Board is satisfied that an employer contracted out or
agreed to contract out work regularly done by its employees in order to defeat
bargaining rights or to avoid its collective bargaining obligations, the Board may
find that a transfer of the business or a part of the business has taken place and
such unfair labour practice is remedied by a successorship declaration.
The successorship provisions of the Code have generally not been applied to
continue bargaining rights and obligations when the contract is awarded to
another legal entity after a new tender. Therefore, employees affected by their
employer's loss of a contract have no protection under Part I of the Code. If they
are represented by a union that has achieved a collective agreement, they will
presumably be governed by whatever layoff or termination rights that they may
have been able to achieve through collective bargaining. In the absence of a
collective agreement or any such provisions, employers, unions and employees
are simply regulated by the provisions of Part III of the Code in terms of minimum
employment standards such as termination notice and wages in lieu of notice. The
only continuous protection Part III provides, in the case of a sale of business is,
that the employment of any individual is deemed to be continuous, regardless of
the transfer, for the purposes of annual vacation entitlement.
Employers question the need to extend the protection of successorship provisions
to subcontracting, contract tendering and franchise agreements. In their view,
such practices are generally dealt with at the bargaining table where parties can
agree to restrictions on their use. Furthermore, they expressed concerns that
extension of successorship rights to contract tendering would undermine their
ability to retain cost effective sources of supplies and compete in the domestic
and international markets.
Although contract tendering is generally prompted by legitimate business
reasons, it has also been used, in some cases, as a device to eliminate the
collective bargaining relationship and the costs associated with it. We have not
been convinced that an amendment that would deem contract tendering of
integral services of a federal undertaking to be "sales" within the meaning of
section 44 of the Code is the best way to deal with that issue.
Employment security for employees in tendered employment situations is unsure
for the unionized and non-unionized employee alike. We believe that initiatives to
protect accrued benefits, like vacation eligibility, are one way of removing the
financial incentive to switch contractors unnecessarily. Other employment
standards changes might be made to improve the tenure of employees in such
positions.
Much work is now awarded by tender, and contracts change periodically. This is
particularly prevalent in the transportation industry, much of which is
interprovincial. The periodic tendering of work in this area is a normal and
legitimate element of commercial practice. We are concerned that modifications
to sections 44 to 46 to give more protection to unionized employees in some less
secure forms of employment will give rise to undesirable restrictions on
competition in other areas of business.
Some allege that the control exercised by the contracting party is so strong that
the tender process is a sham. If so, that problem can be addressed by the Board's
ability to decide the "real employer" or through a request for a single employer
declaration under section 35.
We make no recommendation for change in the Code on the issue of contractor to
contractor transactions. But we urge that greater Part III protections be considered
for the affected parties.
The Impact of Commercialization of Government Activities
Governments, at both federal and provincial levels, are pursuing
"commercialization" of some of their activities in three different ways: (1) by
privatization or by transferring government ownership of a crown corporation,
corporate holding, or government service to the private sector; (2) by
commercialization or by applying business-like approaches and using market
forces, incentives or mechanisms in the delivery by the government of services;
and (3) by contracting out or by entering into contractual agreements, which are
not employment relationships, for securing the provision of goods and services to
government or for the provision of government services to the public or to specific
interests.
To date, the federal government has completed at least twenty-four privatizations.
The scope for further privatization of crown corporations or crown-owned
corporations is now significantly diminished, largely because of the fact that there
are relatively few left. The emphasis in the future is expected to be on
commercialization, contracting out, and on "partnership" arrangements in which
the government and the private sector play a joint role in developing and
delivering program activities.
The impact of any privatization of government activities on the continuity of
bargaining rights is dependent on the nature of the activates transferred in the
private sector, the nature of the arrangement, and the status of the parties
affected by the arrangement. There are three possibilities:
• When the activities are transferred to a private sector employer covered by
provincial jurisdiction, the privatization will result in a shift from federal to
provincial labour relations jurisdiction. The privatization of printing services,
property management, and maintenance of facilities used by the
government would fit into this category. As we noted earlier, the Canada
Labour Code cannot legislate in this area of provincial responsibility.
• If the privatized activities or services fall within the federal authority and are
transferred from a government department to a crown corporation to which
Part I of the Code applies, the successor rights will be governed by section
47 of the Code. If they are transferred to the private sector, such
privatization will amount to a total severance of a collective bargaining
relationship and currently no successor provisions apply; and
• If the privatized activities or services fall within the federal authority and are
transferred from a crown corporation subject to Part I of the Code to the
private sector, the continuity of bargaining rights are covered by section 44
and 45.
Section 47 of the Code provides for the transfer of collective agreements and
bargaining rights where a portion of the Public Service of Canada is established as
or becomes a part of a crown corporation to which the Code applies.
Section 47 does not apply to a transfer from the Public Service to the private
sector. Such a privatization involves the severance of the former collective
bargaining relationship and the termination of the existing collective agreements.
In order to avoid any uncertainty as to the application of section 47, or to fill the
gap in the Code, Parliament has sometimes enacted enabling legislation
(Museums Act, Airport Transfer (Miscellaneous Matters) Act for example) which
incorporates to some extent provisions similar to section 47 to deal with the
bargaining rights of a specific group of employees.
There are unique features to collective bargaining for those in the federal public
service. Employees are covered not only by collective bargaining legislation, but
by the Public Service Employment Act and by government pension arrangements.
The resulting collective agreements, which cover a wide range of federal
employees are sometimes quite inappropriate for a private sector employer, not
just because of what they include, but also because of what they do not include,
for example, matters dealt with by statute.
There are essentially two legislative choices. Section 47 could remain as it is and
Parliament could continue to deal with privatization on an ad hoc basis and adapt
enabling legislation to deal with specific circumstances. The advantage of this is
that it leaves the government, as employer and seller, with maximum flexibility to
effect a commercially attractive transaction. However, the disadvantage is that it
provides no assurance that complex and legitimate labour relations issues will be
adequately addressed.
Alternatively, section 47 could be amended to provide for the continuation of
bargaining rights where governmental functions are transferred to private
corporations. While there may be special difficulties in some situations, this can
be overcome by specific legislation. We recommend that the mechanism in
section 47 provide the general rule.
Recommendation:
Section 47 should be extended to cover sales from the public service to
the private sector, as well as transfers to crown corporations.
Chapter 7
Multi-Party Collective
Bargaining
The Context of Multi-Employer Bargaining
Designation of an Employers' Organization
Geographic Certification
Multi-Employer Bargaining in the West Coast Longshoring and Grain Handling
Industries
Sectoral Bargaining
The Context of Multi-Employer Bargaining
The general rule in Canadian labour relations is that bargaining takes place at the
enterprise level. One union bargains with one employer over terms of
employment for that employer's workforce, or at least a section of that workforce.
We have not adopted the more centralized or national bargaining systems found,
for example, in some European countries, except for some of our public sector
bargaining structures.
This employer-based enterprise level bargaining generally enhances competition.
Through negotiation, each employer can seek wage levels or efficiencies to
enhance its competitive position. Unions too can negotiate for better wages from
an enterprise that is able to generate more revenues or profits. In this respect,
collective bargaining is no different than other forms of bargaining within the
market place.
At times, either employers or unions seek to move to broader based bargaining
where a number of employers negotiate together with one or more unions for an
agreement covering an industry. The Code does not prohibit this type of
consolidated bargaining. However, its effect is important to recognize. Multiemployer bargaining structures eliminate wage rates and most working conditions
as issues in the competition between employers, because it replaces individual
terms with the terms negotiated through the industry wide agreement.
Often, this still leaves employers with considerable scope to compete based on
operating efficiencies and other non-wage issues. There is nothing inherently
wrong with broader based bargaining as long as unions and management remain
free to revert to the simpler, single enterprise system if they wish.
The Canada Labour Code and several other codes go beyond allowing voluntary
multi-party bargaining by providing various ways to compel broader based
bargaining. The difference between these schemes is the flexibility given labour or
management to enter, or exit, the multi-party arrangement. These schemes can
have both positive and negative effects.
Structured or mandatory multi-employer bargaining works well when there is a
very mobile workforce, with employees moving regularly between employers and
performing similar work under the same terms and conditions. This is particularly
the case in industries like construction or longshoring where employees are drawn
from a common labour pool or hiring hall. The employees owe more allegiance to
the pool or hiring hall than to any given employer. Wages and working conditions
are not an element in competition and employers do not need to maintain their
own regular workforce, at least for that type of worker.
Multi-party bargaining increases the size of any industrial dispute. It also exposes
parties outside the dispute to greater potential harm, not just because more
operations can be shut down, but because all of the other sources of service are
shut down at the same time. This creates both an advantage and a disadvantage.
An industry wide shutdown brings extreme pressure for settlement on the whole
industry, which may shorten the dispute. However, if all employers are tied into
the same dispute, third parties lose their ability to turn to a competitive option for
service. Also lost is the competitive pressure on the individual employer and union
to settle for fear of losing market share to others within the industry.
When legislation allows or requires long-term multi-employer bargaining, further
questions are raised - who speaks for the employers and how is it decided what
they will say? Employers, unlike employees, are generally not individuals. The
"one person, one vote" rule does not necessarily apply, or if it is used, is not
necessarily fair. As soon as legislation groups employers together, there is the risk
that one group of employers may force decisions on other employers against their
will and against their best economic interests. If these employers can withdraw
from the process freely, it is not a problem; but if they are tied into it by law, it
can become one. In essence, choices they would make as a free competitor in the
market place become distorted by the choices forced upon them by the majority
views of their competitors.
If multi-employer bargaining stretches across several industries, a further issue
arises. Different industries operate in different competitive environments. They
must set wages and working conditions as a multi-industry group. The potential
then exists that the costs may be higher than one industry can bear, and yet
lower than another industry could absorb. Individual employers could try to work
this question out within their association. But, once again, their ability to do so is
not based on market forces or their competitive position. Instead it is based on
their relative influence within the structures in the association's constitution or on
the terms of the statute allowing multi-employer bargaining.
Most multi-employer bargaining takes place through employers' associations. This
raises the secondary issue of association funding. The costs of administering a
collective agreement are a cost of labour. Associations normally provide for a levy
to cover these costs, which can be more or less fair, depending on the system
used to collect the levy. Some charge a flat fee; others a per hour, per dollar
spent, or per tonne shipped charge.
When inflation, or the level of competition, or technological change are high,
collective bargaining has to be flexible enough to deal with the consequences. In
more stable times, it can afford to be more rigid. The party resisting change will
often favour broader based bargaining, as a protection against one bargaining
relationship being used to "whipsaw" the next into a settlement. "Whipsawing"
can go down as well as up. When writing legislation that allows or requires multiemployer bargaining, all of these seemingly conflicting considerations must be
kept in mind. It is in this context that we look at sections 33 and 34 of the Canada
Labour Code, and the submissions favouring sectoral bargaining.
The Woods Task Force advocated experimentation with a system of accreditation
of employer associations in such federal industries as trucking and longshoring
similar to the construction industry provisions in provincial statutes.
Employer accreditation implies compulsory representation by an employers'
organization whether or not all employers involved give their consent. In response
to the Woods recommendations, the government rejected compulsion. The only
variation allowed to the voluntary approach was in longshoring and, by regulation,
any other industry in which two or more employers draw on a common labour
pool. As a consequence, section 33 of the Code, dealing with the designation of an
employers' organization, remains basically voluntary in nature. Section 34,
dealing with geographic certifications, effectively allows for a form of compulsory
accreditation but, since no other industries have ever been designated by
regulation, only in longshoring.
In both employers' organization and geographic certification issues, the Board can
only become involved if a certification application has been initiated by a union.
Section 33 designations have been made only rarely by the Board. Geographic
certifications under Section 34 have been limited to certain ports in the Great
Lakes, St. Lawrence River and Atlantic Canada.
Designation of an Employers' Organization
Section 33 enables the Board to designate an employers' organization to be the
employer, where a trade union has applied for certification of a unit comprised of
employees of two or more employers who have formed such an organization. The
Board must be satisfied, however, that each of the employers has granted
appropriate authority to the organization so that it can carry out an employer's
duties and responsibilities under Part I. The section also permits a member
employer to withdraw from the organization but with provision for an orderly
return to individual bargaining.
The section has seldom been invoked and employers' organization designations
have rarely been made by the Board. Its application has arisen mainly with the
British Columbia Terminal Elevator Operators' Association (BCTEOA) and the Grain
Workers Union, Local 333.
It is in the context of this bargaining relationship that two issues were brought to
our attention: whether a union's consent is required for new members to be added
to an employers' organization; and, the extent to which the Canada Labour
Relations Board can take into account the existence of a multi-employer structure
when considering applications for certification for employees of individual
member companies of the employers' organization.
The first issue initially arose when the Federal Court of Appeal quashed a 1987
Canada Labour Relations Board decision which added Prince Rupert Grain Ltd. to
the five Vancouver terminal elevator companies covered by BCTEOA's section 33
designation. The Court held that no new companies could be added without
consent of the union. Although, in many respects, Prince Rupert Grain Ltd. has
carried on its labour relations as though it were covered by the designation, the
union has never given formal consent and the Board has been hindered in
formalizing what appears to be its preference for the broader based unit as that
most appropriate for collective bargaining.
The second issue is not unrelated and brings into question more directly the scope
of the Board's power to decide whether a group of employees is a unit appropriate
for collective bargaining. Two relatively recent Board decisions dealing with
applications to represent foremen at individual grain companies are relevant. In
the first case, the Board refused an application by the International
Longshoremen's and Warehousemen's Union (ILWU), Local 514, to represent
foremen at Prince Rupert Grain Ltd., because it was of the view that a multiemployer unit would be the appropriate structure. The Board's ruling was quashed
by the Federal Court of Appeal. The effect of the Court's decision was to limit the
Board's ability to take into consideration the appropriateness of a multi-employer
bargaining unit in the absence of a section 33 application filed by the union. The
matter is scheduled to be heard by the Supreme Court of Canada early in 1996.
The second case involves an application by the same union to represent foremen
at the Vancouver terminal elevator of the Saskatchewan Wheat Pool, a company
covered by the BCTEOA section 33 designation for its operational employees. The
application, in which GWU Local 333 intervened, was rejected by a majority of the
Board, on the grounds that the employer should be the BCTEOA. In effect, the
Board took the view that an existing multi-employer designation for some
employees of all the member companies of the employers' organization
determines the employer and thus the appropriate bargaining unit for other
groups of their employees. We understand that reconsideration and judicial review
proceedings have been initiated in this case.
Section 33, in its current terms, creates some ambiguity. On the one hand it is
based on voluntarism. It only applies to employers who voluntarily join the
employers' organization, and subsection 33(3) allows employers to leave the
organization freely and to resume bargaining on their own behalf. However, some
rigidity has crept into this system because of the mechanisms used in section
33(1). That section allows a trade union to apply for a bargaining unit consisting of
the employees of the employer members who formed the organization. It thus
changes the general assumptions under the Code and substitutes a multiemployer bargaining unit. It is this multi-employer bargaining unit certification
mechanism that ensures the union's consent.
This has led the Board to conclude that it is not appropriate to certify a unit of
employees of a single employer that is a member of the organization. This in turn
raises the argument, adopted by the courts, that any additions to the multiemployer bargaining unit require union consent through a certification application.
Based on the use of the "multi-employer unit" concept, the Board appears to have
adopted policies favouring multi-employer bargaining and against single-employer
bargaining in industries where an organization exists.
Another element of rigidity has emerged. Section 33 applies only when a union
seeks certification for a unit of employees. This unit will normally be for
employees engaged in a particular type of work. The net effect of the Board's
rulings is that, once employers form and authorize an organization, that
organization in essence becomes the employer vis-à-vis all employees of each
employer, not just for those engaged in the type of work specified in the original
certification. Thus, an organization formed to negotiate one type of work will be
the employer as well for negotiations for another type of work, even with a
different union, to the exclusion of the individual employers.
We do not criticize these rulings, given the wording of section 33. However, the
result is a system of multi-employer bargaining that is more rigid and less
voluntary than it might otherwise be. We see no advantage to this degree of
rigidity.
In our view, the function of section 33 should be to allow employers to choose, if
they wish, and for each round of collective bargaining, to negotiate through an
organization. The section should only apply if the negotiations are with the same
union, and only with that union's consent. The employers' organization in
negotiations would then proceed as if it were one bargaining relationship,
proceeding on towards one collective agreement. The same should happen in the
next round of bargaining, unless individual employers withdraw or the union
withdraws its consent.
It is the use of the bargaining unit concept that causes the interpretative
difficulties. There is no reason why voluntary multi-employer bargaining cannot be
achieved within the context of normal single employer bargaining units with each
employer. The employers could simply designate the organization to bargain for
them for one or more bargaining units. It should not affect the certification or
decertification process, the identity of the employer or the appropriate bargaining
unit. Adopting this less rigid and regulated scheme might cut through much of the
litigation that has plagued the grain industry.
On these issues, we have reviewed the submissions made to the Industrial Inquiry
Commission into Industrial Relations at West Coast Ports. We have also had the
benefit of the Commission's report. Recommendation 9(f) provides:
"the amendment of section 33 to allow for the accreditation of employers'
organizations and for the addition of members to such accredited employers'
organizations without the necessity of either a trade union application for
certification or consent by the trade union. In the Commission's opinion, the
critical elements underlying accreditation ought to be that the employers involved
consent to the accreditation and that the CLRB considers the group appropriate
for collective bargaining."
Two assumptions underlie this recommendation. The first is that section 33 is an
accreditation scheme which in our view it was not designed to be. It has become
closer to accreditation primarily as a result of Board decisions. Second, there is
the assumption, implicit or explicit in Board decisions and in the West Coast Ports
Inquiry Commission's report, that consolidated multi-employer bargaining under
section 33 is a good thing, an assumption we think needs to be closely examined.
The assumption that a multiplicity of units is a problem rests on the view that a
strike or lockout involving one bargaining unit will result in a shutdown of other
units, thus escalating each single dispute, and causing sequential stoppages,
since each unit could do the same thing in turn. We agree that a multiplicity of
units for a single employer, at least in the same location, can have that effect.
However, it is not necessarily true for different employers or for different
locations.
There are advantages to a diffuse bargaining structure. If some facilities operate
during work stoppages at other facilities, this can drastically reduce the impact on
parties dependent upon, but outside, the industry.
Within the grain industry, it is the employers who continue to elect multi-employer
bargaining, since none have exercised the right to withdraw from the
organization. We assume therefore that they find single employer bargaining
unappealing. The differences between the Grain Workers Union and the
employers' organization relate to the need for consent to add to or modify the
bargaining unit as it needs to be structured under the present provision. We see
no policy reason to keep the tie to a bargaining unit, or Board supervision over
that unit, just to allow structured multi-employer bargaining with a consenting
union.
Our conclusion is that section 33 should be rewritten in more voluntaristic terms
and should not be turned into an accreditation system. Section 34 already fulfils
that function.
Recommendation:
Section 33 should be amended to allow an authorized employers'
organization to initiate bargaining on behalf of its member employers
with a trade union certified for employees of those member employers.
• Union consent would be needed for the group bargaining request
and could be withdrawn prior to each round of bargaining, but only
in total;
• Employers would remain free to withdraw from the organization
and revert to individual bargaining with the union;
• As a transition measure, multi-employer bargaining units in
existence now would revert to individual employer bargaining units
although the organization agreement based on group bargaining
would continue to apply;
• The fact that an employer authorized an employers' organization to
bargain on its behalf for one type of bargaining unit would not
preclude the employer bargaining individually in respect of another
category of employees.
Geographic Certification
As indicated, Section 34 is the only provision which allows an element of
compulsion with respect to employer accreditation. It explicitly provides for
application to the longshoring industry and allows for other industries to be
covered by regulation. However, no industries have been added. Once again, only
a union application for certification can trigger application of the provision. It is
designed to apply to those situations where two or more employers in the same
industry, in a particular geographic area, obtain their employees from a common
labour pool - generally the hiring hall approach found typically in longshoring and
shipping. Where a union obtains a geographic certification, the employers are
required to appoint an employer representative who is vested with the necessary
authority to discharge the duties and responsibilities of an employer under Part I
of the Code.
If the employers fail to appoint or agree on the appointment, the Board makes the
appointment. The employer representative is subject to a duty of fair
representation. The Board has authority to determine any question that arises
under the section.
The provision first came into force in 1973 (then known as sec- tion 132). It has
been credited with encouraging stability in the longshoring industry during a
difficult period of decasualization and rapid technological change. While section
34 has only been invoked from the Great Lakes eastward, in many respects the
practices it sustains have been followed voluntarily in the West Coast ports.
We heard from a number of employers active in the longshoring industry in St.
Lawrence River ports on problems they perceive with the application of the
section. We have identified a number of issues which were raised with respect to
the working of section 34 in the future.
As a preliminary, we are of the view that as long as stevedoring companies
customarily rely on a common labour pool for their labour force, then a union
representing employees in that labour pool should be able to invoke a geographic
certification. This should enable them to bargain with a single entity duly
empowered to discharge the duties and responsibilities of an employer under Part
I of the Code. However, the longshoring industry has experienced major changes
over many decades, both in technology and in the nature of the employment it
offers. In the latter respect, the pattern of casual labour has given way to much
more stable forms of employment, even though relatively few longshoremen are
employed exclusively by a single company. In future, some individual companies
may want to support a permanent and exclusive workforce.
While we have not had an opportunity to study the prospects for single company
longshore employment in any depth, we have been made aware of a recent study
on labour relations in the Port of Quebec(1) Before the Board can recommend
adding any industry to section 34 it must be satisfied that "the employers
engaged in an industry in a particular geographic area obtain their employees
from a group of employees, the members of which are employed from time to
time by some or all of those employers". When this section was enacted, and still
to a great extent, this system was implicit in the very word "long-shoring". It is
this pool feature that justifies requiring employers to bargain together whether
they wish to or not. However, as this may be changing with technology and as
employers may wish to retain their own forces to do this work, without reliance on
the pool, we believe section 34 should be amended to make it clear. This section
should not apply to an employer who has never used, or ceases to use, a pool
approach to employment, using instead only their own work force.
This does not imply that employees working for such employers would cease to be
longshoremen. They could remain so. Indeed, they could apply to be certified,
although it would be up to the Board to determine the appropriateness of any
proposed bargaining unit given the employer's circumstances. Our which points to
European experience in this regard. We understand that the study refers to
changes in both Great Britain and France, where the common labour pool
approach has been replaced by some dock employers in favour of a more
permanent work force. The study reports improvements in labour-management
relations and productivity in the industry in these countries as a result of the
changes. We are not in a position to assess the need for or likelihood of such
changes in the Canadian longshoring industry. We are of the view, however, that
there should be no statutory impediments to such developments and that the
Code should be flexible enough to accommodate them if they occur.
recommendation is just that section 34 would not apply.
Recommendation:
Section 34 should be amended to make it clear that the reference to the
longshoring industry applies only to employers who employ longshoring
employees in the way set out in section 34(2) and not to employers who
maintain their own workforces and who do not, as a result, draw upon
the common pool.
As to the future working of section 34, one consideration is whether it should
contain specific criteria to be followed in the event that the Canada Labour
Relations Board is called upon to appoint an employer representative. The Board
has already identified some six criteria that it would take into account. Valid
though the criteria may be, we believe that the statute would become unwieldy if
codification of Board decisions was to become the rule, particularly since at least
several more examples could be added to the list. Consequently, we do not
believe that an itemized codification should be included covering all elements
identified in Board jurisprudence.However, we do find merit in the proposal that
the choice of the employer representative should be a responsibility expressly
confined to those stevedore employers active in the port or ports covered by a
particular geographic certification. This seems to be reasonable and we would
also accept that this choice be made on the basis of majority support among
these same employers, while noting that some form of weighted voting might be
required to take account of the degree of involvement of each employer. Without
being exhaustive, tonnage handled, employment provided, and investment
entailed, could be the types of measures which would be taken into account. We
reject, however, the proposal that unanimity should be required if the employer
representative favoured by the majority is active in the same role in another
geographic area.
Another issue raised concerned the authority of the employer representative to
assess employers covered by the geographic certification for the costs incurred in
fulfilling its role. This we believe should be explicitly expressed in the Code with
the understanding that the assessment should be to cover those costs reasonably
related to the employer representative's role and those emanating from the terms
of the collective agreement and its administration. The Board has issued decisions
on this matter but any doubt should be removed from the statute.
Similarly, any question of whether an employer representative can be removed in
favour of another, if majority support is lost, should be clarified. An explicit "deaccreditation" mechanism should be provided, detailing how the decision to
revoke is to be made in terms of eligibility to vote, any weighted voting and other
conditions. Such a mechanism would have to be invoked and administered in an
orderly fashion with the need for appropriate time limits for applications possibly
spelled out.
Recommendation:
Section 34 should be amended to provide that:
• the act of choosing an employer representative be expressly
confined to those employers active in the port or ports covered by
a geographic area;
• the employer representative be determined by majority support
based on weighted voting among the employers in the geographic
area;
• the employer representative be authorized to assess the employers
for costs reasonably incurred in fulfilling its responsibilities under
the Code and under the terms of
• the collective agreement and its administration;
• there is an explicit means of "de-accreditation" in the event that an
employer representative loses majority support.
1
Les relations du travail au port de Quebec,- prepared by Michel Audet, Jean-Noel
Grenier and Jean Sexton, of Laval University in Decembeer, 1995, for Le Groupe
Initiative de concertationsur l'avenir de l'industrie maritime de la region de
Quebec et de Chaudiere-Appalaches.
Multi-Employer Bargaining in the West Coast
Longshoring and Grain Handling Industries
The Industrial Inquiry Commission into Industrial Relations at West Coast Ports
made a number of recommendations which it judged would "allow for a more
stable bargaining structure to be put in place between the parties in the
longshoring, grain handling and related West Coast port industries". Our initial
terms of reference specifically directed us to review any recommendations the
Commission might make with respect to geographic certification provisions and,
subsequently, the Minister referred all its recommendations to us so that we could
take them into account.
The Industrial Inquiry Commission recommendation 9 (a) proposes changes to the
current section 34 covering geographic certifications, which would have the effect
of broadening the definition of longshoring by adding to sub-section 1(a) "such
other industries as are specific to the port operations, except grain handling
operations at terminal elevators".
The exclusion of grain would be emphasized by deleting the current section 34(2)
and replacing it by, "all grain-handling operations and related activities at terminal
elevators at West Coast Ports is (sic) not long-shoring for the purpose of Part I of
the Code". The Commission further recommended that the CLRB review
bargaining unit structures at the British Columbia grain terminals to determine
whether one unit, covering all employees involved in grain handling and in the
"tie-up" and "let-go" of vessels at the terminals, was appropriate.
The immediate practical effect of such amendments would be either to relieve
longshoremen and longshore foremen of their current responsibilities in the
loading and securing of grain vessels or to transfer them from their current
employment. Such work would henceforth become the responsibility of employees
of the terminal grain elevator companies.
A second but not secondary effect, caused by deleting the current section 34(2),
would be the removal of the concept of a common labour pool on which the
application of the geographic certification provision has been based since it came
into force in 1973. The purpose of such an amendment would appear to be the
facilitation of broader based bargaining structures which the Industrial Inquiry
Commissioners favour.
That part of the Commission's recommendation which would remove longshore
jurisdiction from grain handling has received support from the grain industry,
particularly the British Columbia Terminal Elevator Operators Association
(BCTEOA) on the west coast. Bunge of Canada Ltd. and the St. Lawrence Grain
Elevators Association would like to see a similar arrangement apply in the St.
Lawrence River ports. The Grain Workers Union, Local 333 told the Commission
that grain should either be integrated with longshoring or isolated from it. Since
its report was issued, however, GWU Local 333 has indicated that it would take no
position that would harm another union.
The recommendation has been firmly rejected by both the longshore employers
and the longshore union. In addition, the British Columbia Federation of Labour
has voiced emphatic opposition, pointing, among other things, to the destabilizing
effect of tampering with union jurisdictions.
An evident advantage of isolating grain handling from longshoring would be to
ensure that grain exports could continue to flow during port work stoppages,
other than those directly involving grain terminal employees. A down side could
be the instability in longshore labour relations whichthe port employers and union
predict if the arrangement involves jurisdictional changes.
If the aim is to prevent successive halts to grain movements arising from work
stoppages, there might be other ways to achieve this without readjusting union
jurisdictions. For example, the International Longshoremen's and Warehousemen's
Union (ILWU) has always offered to continue dispatching its members to grain
handling assignments even though longshoremen or longshore foremen may have
been engaged in a legal work stoppage for other port operations. The offer has
generally not been accepted by the British Columbia Maritime Employers'
Association (BCMEA) or the Waterfront Employers' Association (WFEA) for any
length of time. If it were possible to give statutory validity to such an
arrangement, to require it by law in the Code or in other pertinent legislation
covering grain and grain transportation, then the issue of union jurisdiction would
be academic as far as the continuing flow of grain is concerned. Alternatively, the
statute could give legal effect to a voluntary long term agreement to arbitrate
terms for grain handling.
It is also by no means clear why the longshoring work currently associated with
grain ships has to be carried out under the auspices of the BCMEA collective
agreement, at least as far as the Code is concerned. The grain companies could, if
they wished instead, directly hire their own longshoremen and negotiate with the
ILWU individually or through their own employers' organization. This would avoid a
change in union jurisdiction, but give the grain employers some control over their
own conditions of work, labour rates and contract end dates, albeit it through
negotiations they themselves would have to undertake. We presume this is not
happening now because grain is being shipped using arrangements with owners,
agents or employers who are members of the BCMEA. However, this is not a
consequence of the Code but of the parties' own commercial arrangements.
In our view, these approaches merit serious consideration. They could reduce the
number of times that grain exports are disrupted due to work stoppages and thus
maintain a reputation for reliable deliveries. They could also offer an opportunity
to decrease the rapid resort to back-to-work legislation which has been largely
justified by the impact of strikes and lockouts on grain farmers. We expect that
such approaches would not be welcomed by longshore and other maritime
employers, as well as by producers of other commodities exported through West
Coast ports who might find them discriminatory. However, because of its
importance, the grain industry has been declared to be for the general advantage
of Canada, under the Constitution Act, and, therefore, within the jurisdiction of the
Canada Labour Code. This is not the case with most other commodities.
We note a concern raised by the BCMEA in response to the report of the West
Coast Ports Inquiry. The Association feels that it has invested much money in
training and job security for longshoremen on the West Coast. It believes the
proposal to isolate grain would remove from the Association the right (or
opportunity) to have these costs absorbed in part by the movement of grain. We
do not doubt the investment. However, this may be an example of where the
multi-industry nature of bargaining in the longshore industry results in costs
distributed unequally in a way that puts some industries at a competitive
advantage or disadvantage. We frankly do not know the answer, but are
concerned generally about how the costs in these industry are shared among
industry participants.
The Commission recommendation to add related industries to longshoring and to
remove the common labour pool basis from section 34(2) also requires comment.
It could have the effect of putting longshoremen, hired by several employers
through a common pool, in the same geographic bargaining unit as other port
employees employed by a single employer. In addition to this potential
incongruity, the amendments could force employers into an employer
organization, contrary to the voluntarism of section 33, even though they do not
draw labour from a common pool. We do not agree with such a change.
Broader Based Bargaining
It is evident that we are not in harmony with the West Coast Ports Industrial
Inquiry Commission with respect to bargaining structures in the grain longshoring
and related port industries. This is in large part due to our reservations about the
broader based bargaining approach that appears to underlie its recommendations
in this area.
Advocates of broader based bargaining point to advantages which include less
potential for sequential shut-downs as a result of work stoppages and the
consolidation of union and management expertise at a single bargaining table. We
doubt, however, that such advantages would outweigh problems that could arise
where, for example, because of issues key to only one part of the industry,
negotiations are blocked for the whole group, possibly to the extent of a work
stoppage. We are also concerned with the potential increase in demands for backto-work legislation because of the impact of a strike or lockout covering an entire
industry grouping or sector.
More significantly, we question the appropriateness of an imposed and regulated
system of broader based bargaining in today's increasingly competitive and
deregulated economy. The transportation sector in all its modes, including the
transportation of grain, is being liberated from stringent regulation. We find it
difficult in such an environment to support what is, in effect, a more regulated
labour relations regime in these industries.
The breakdown of much industry wide and pattern bargaining in a number of
industries subject to provincial labour regulation was, at least in part, a response
to increased competition and, in some cases, to deregulation. With similar
influences at play in the grain and longshoring industries, we do not believe that
externally imposed structures should inhibit the potential for flexible responses
which, in the longer run, may benefit not only the parties but also the public
interest.
We also note, however, that beyond the use of section 33 in the grain industry,
multi-employer bargaining on the West Coast is currently voluntary, unlike the
St.Lawrence River and East Coast where geographical certifications are prevalent.
In short, while the Code can allow the parties in West Coast grain handling to
bargain voluntarily, as they do now, on an essentially industry wide basis, it
should not inhibit them, either in its expressed provisions or in its application,
from choosing at some future date to bargain on a company by company basis.
Indeed, they already do so in the case of unionized relationships in the prairie
elevators. Similarly, and to emphasize what we have said previously, in
longshoring, while a measure of compulsion is appropriate for those relationships
where a common labour pool is customarily the basis of employment, there
should be no legislative impediment or discouragement of any future trend
towards single enterprise employment and bargaining.
We have made these comments about the West Coast situation with some
hesitancy, for three reasons. First and foremost, the issues on the West Coast are
vexing and fundamental both to the Canadian economy and to Canadian labour
relations. This area has triggered the most back-to-work legislation. The inability
of these parties to resolve their differences has eroded Canadian faith in a system
of free collective bargaining that has generally served us well.
Second, we have great respect for the work carried out by the West Coast Ports
Inquiry Commission, and for the wisdom and insight they brought to the issues
they studied. We have tried to indicate where our differences lie.
Third, we received the report of the West Coast Ports Inquiry Commission late in
our mandate. Effectively, we had only thirty days to study its recommendations.
While bringing our own report to a conclusion, we were still receiving detailed and
widely divergent views on the recommendations they adopted. While we have
considered those recommendations as fully as possible given our time frame, to
do them full justice we believe further consultation on their recommendations and
on ours in this vital area of West Coast ports bargaining is absolutely essential.
The Minister of Labour has already committed to such consultation on our
recommendations.
Recommendation:
The Minister of Labour should initiate consultations with labour,
management and others affected on the full range of recommendations
brought forward by the Industrial Inquiry Commission into Industrial
Relations at West Coast Ports.
Sectoral Bargaining
Several unions urged us to consider sectoral bargaining as a way to give real
opportunities for collective bargaining to employees working in industries where
the rate of organization is low. Employees working in a designated sector (a type
of employment) would continue to have the option to organize at their workplace,
based on majority support. However, once certified for that workplace, these
employees would join with other similarly organized workplaces for the purposes
of collective bargaining with the employers. The Board would be given the power
to establish a sector for the purposes of sectoral bargaining by describing its
geographical scope and the type of bargaining unit that would fall within the
sector.
The effect of a move to sectoral bargaining would be to require employers,
certified for individual workplaces, to join together for the purposes of bargaining
with the union. Most such proposals presume that the same union would
represent all the employees within the various certified bargaining units in the
sector. Once the union and the employers' group thus established negotiated a
collective agreement, it would apply to each worksite. If a new union certified a
new worksite within the sector during the term of the collective agreement, that
new unit would automatically become part of the collective agreement already in
place. The employer would then join the employers' group for the next round of
bargaining.
The advantage of this scheme, from the union perspective, is that it gives an
incentive to organizing those currently unorganized individuals who work in
industries characterized by a large number of relatively small but similar
worksites. The barrier to organizing according to the unions is that, where you
have many employers in an industry, (or a few employers, but with many
locations), unions can get certified but have difficulty achieving a collective
agreement. The burden of collective bargaining, particularly with a large
employer, proves too much for the small units acting individually. By allowing
sectoral bargaining, the burden of bargaining is spread over a number of smaller
units. Additional smaller units become easier to organize because employees can
see the collective agreement to which, if they choose certification, they will
become a party.
We received only limited comment from employers on these proposals. They
generally opposed any plan that would make it easier to unionize in areas where
unionization has not caught hold under the present law. Beyond that, their main
objection appears to be that the proposal forces employers, in the business of
competing with one another, to join together for collective bargaining. Part of their
competition is over wage rates and working conditions, which this proposal would
eliminate. They also object to any scheme that would automatically bind an
employer to a pre-existing collective agreement with no opportunity to bargain
workplace specific provisions. For some employers, this could be devastating, as
they would, quite suddenly, find themselves obliged to raise wages to meet the
sectoral agreement, while perhaps at the same time being contractually obliged
to provide services to clients at rates they have no capacity to increase.
We are not persuaded to recommend multi-employer sectoral bargaining for the
federal jurisdiction at this time. It lacks any widespread consensus or even
understanding. However, the idea raises a point that, in our view, merits further
consideration. There are industries in the federal jurisdiction where large
employers operate many worksites in an area. The Board's bargaining unit
policies would normally require certification to take place worksite by worksite.
Were the Board to allow regional bargaining units, the union would have to obtain
majority support in the whole region. This would be difficult to organize and, if
successful, would include individual worksites that might not want representation.
We can see distinct advantages for both labour and management in having the
Code allow a single employer but multi-establishment variant to the sectoral
bargaining scheme. It might work as follows. Certification (and revocation) would
continue to be granted on a worksite by worksite basis (by "worksite" we mean
basically whatever is the appropriate bargaining unit at present). However, once
certified, the Board could be given the power to consolidate bargaining for two or
more units so that they could thereafter bargain together for one collective
agreement to cover all the worksites of that one employer certified within the
sector with that union. As new worksites of that employer became certified, they
could apply to become part of that wider consolidated bargaining process. Newly
certified units could either be joined automatically to the existing collective
agreement or try to negotiate their own agreement first. In the event of a failure
to negotiate their own agreement, should the first contract need to go to the
Board, the Board could order that the consolidated bargaining agreement apply,
with any necessary modifications it deemed appropriate.
We believe this form of local unit, sectoral, single employer bargaining offers
efficiencies to both sides. It meets the objections concerning competitiveness
between employers, and preserves the right of employees at the bargaining unit
level to opt for or against collective bargaining.
We recommend that the Board be empowered to approve a single
employer sectoral bargaining scheme which would provide that, while
representation questions continue to be considered locally, certified
units could be consolidated, for collective bargaining with the employer,
over all certified worksites within a given region.
Chapter 8
The Bargaining Cycle
• Collective Bargaining under the Current Canada Labour Code
• Technological Change, Material Change and Mid-Term Contract Negotiations
Our system of collective bargaining requires that collective agreements be for a
fixed term. It limits the power of the parties to engage in a legal strike or lockout
until any existing contract has expired. It also prevents the parties from engaging
in a strike or lockout until after they have met and bargained in good faith.
This creates a cyclical process consisting of bargaining, followed in very few cases
by a strike or lockout, followed by a new collective agreement that prevents
further strike or lockout action until the new bargaining process can begin again.
This chapter addresses the steps in this bargaining cycle. Legislation, which varies
across Canada, can impose a variety of requirements. Some of these
requirements involve third party assistance through mediation or conciliation.
Others require notice to the other side of the various steps to be taken. Yet others
involve ensuring that employees or employers maintain a say in the decisions
made by their bargaining agents.
We begin by describing the procedures and experience with bargaining under the
present Canada Labour Code. We then review each step in the process, giving
specific recommendations for change. There are some disputes where questions
arise about the need to maintain essential services, or which so involve the larger
public interest that legislative intervention might occur. We deal with that topic
separately in Chapter 10.
Collective Bargaining under the Current
Canada Labour Code
Section 49 of the Code permits either party to a collective agreement to serve
notice to bargain within the three months preceding the date of expiration of the
agreement. Some collective agreements call for earlier bargaining but such
provisions cannot negate the statutory opportunity to give notice.
Parties cannot strike or lockout until they file a notice of dispute with the Minister
of Labour. The Minister may provide conciliation assistance. Usually this involves
the appointment of a conciliation officer, although a conciliation commissioner or
board appointment is also an option. The role of the conciliation officer is to meet
with the parties to assist them in entering into or revising a collective agreement.
The conciliator then files a report, after which the Minister may appoint a second
stage of conciliation, that is a conciliation commissioner or board, which can make
non-binding recommendations for settlement.
Parties only acquire the right to strike or lockout seven days after the Minister
informs the parties either that:
• no conciliation officer will be appointed (a rare occurrence), or
• no additional conciliation assistance will be provided (the majority of cases),
or
• the report of the commissioner or board has been released where a second
stage of conciliation has been appointed (used sparingly since 1986).
The Minister may appoint a mediator to assist the parties at any time, although
appointments usually occur during the seven day "cooling-off" period or following
the acquisition of the right to strike and to lockout. Unlike many provincial labour
laws, the Code does not impose requirements for votes or notices before the
parties may exercise their right to strike or to lockout.
Settlement Statistics
About 50% of negotiations under the Canada Labour Code are resolved by the
parties in direct bargaining. Although the Code provides time frames for each step
of the conciliation process, subject to extension by the Minister, in practice the
parties often remain in conciliation for extended periods. Data for the years 1986
to 1994 indicate that the average time spent in direct bargaining by the parties,
before a notice to dispute is filed, is 187 days, and the average time spent in the
first stage of conciliation is an additional 130 days. This is not the practice in other
jurisdictions which have similar legislative provisions. For example, in Ontario the
parties rarely continue in conciliation beyond the 14 day period provided for in the
legislation. In some provinces, third party assistance is not mandatory for
acquisition of the right to strike or to lockout, but a conciliator or mediator may be
appointed at the request of the parties, or at the discretion of the Minister. Subject
to any strike vote or notification requirements, the right to strike or to lockout in
these cases is tied to the notice to bargain or the termination date of the
collective agreement.
Government Intervention
Once conciliation is over, there is currently only one restriction on the right of the
parties to strike or to lockout, that is the power given by Section 90 to the
Governor in Council to defer a strike or lockout that adversely affects the public
interest in between Parliaments. The Minister of Labour can provide mediation,
but any recommendations for settlement are non-binding. Agreement cannot be
imposed, and the parties may eventually choose to exercise the ultimate
economic weapon of the strike or lockout.
As mentioned previously, the vast majority of collective agreements are
concluded without resort to work stoppage. However, in some cases, despite third
party assistance, the parties are unable to come to an agreement, and a work
stoppage occurs. When this happens in a service or sector which has the potential
to inflict serious hardship on the Canadian economy, or to threaten Canada's
reputation as a reliable exporting nation, the government comes under pressure
to intervene with emergency legislation. Parliament has adopted such legislation
twenty-four times since 1950, to end work stoppages affecting the railways,
shipping, port operations, grain handling and postal services (see Tables 8.1 and
8.2). In these cases, some form of binding arbitration or legislated settlement has
been imposed as a means of resolving the dispute.
There has been a tendency in the past ten years for Parliament to intervene more
often and more quickly to end work stoppages affecting key sectors of the
economy. Where there is a likelihood of Parliamentary intervention, the element of
economic pressure on the parties is removed from the process, as is the incentive
for the parties to seek resolution of their differences at the bargaining table. In
this way, consistent use of emergency legislation leads parties to bargain in
anticipation of a back-to-work order followed by arbitration. This anticipation of
intervention undermines the usual economic forces that make collective
bargaining work.
Technological Change, Material Change and
Mid-Term Contract Negotiations
A fundamental premise that underlies the Code is that stability during the term of
a collective agreement is desirable. The achievement of a collective agreement is
meant to promise that terms and conditions of employment are fixed and that any
disputes will be resolved without strikes or lockouts. This is meant to ensure
peace and productivity as long as an enterprise remains in operation.
The introduction of technological change is the only exception to this pattern that
the Code contemplates. Sections 51 to 55 create obligations upon employers and
grant rights to unions in the event that technological change is contemplated
during the term of a collective agreement. The Code gives the Board broad
powers to intervene and gives a union the right to apply to serve notice to bargain
revisions to the collective agreement in the event an employer instigates such
changes. These provisions were introduced two decades ago in recognition of the
enormous impact that technological change could have upon a workplace
administered under a collective agreement. Indeed, major technological changes
can alter the fundamental underpinnings that formed the basis of negotiations of
the collective agreement.
But technological change is not the only event that can challenge the viability of a
collective agreement. Bankruptcy, insolvency, restructuring, "downsizing",
material changes in operations and reorganizations can alter the very fabric of an
operation and strain the applicability of a collective agreement that was
negotiated in good faith without foreknowledge of such events.
Therefore, it has been suggested that major or material changes in an operation
governed by a collective agreement should give rise to either party being able to
serve a mid-term notice to bargain to revise the collective agreement. The
purpose of such a provision would be to trigger a statutory duty to bargain in good
faith and invoke the Board's or FMCS's supervisory assistance over the
negotiations. In addition, it has been suggested that industrial sanctions, such as
the ability to strike or lockout, should also be made available to the parties in
these situations, as is sometimes the case under American law.
This raises the question of whether the Code should be amended to allow for midterm bargaining in the event of material changes that would not be covered by
the existing technological change provisions in the Code. There is an initial
attractiveness to the notion. While long-term certainty was once a prime objective
of both unions and management, rapidly changing economic forces and pressures
are now making flexibility and the ability to respond quickly and innovatively
necessary for survival.
Increasingly, competitive pressures force employers to seek mid-term contract
"adjustments". There is no statutory obligation for a union to even respond or
enter into renegotiations. There is no mid-term obligation to bargain in good faith
over new or urgent issues. The result can be that parties may fail to address
critical economic issues, flounder over process issues, or allow problems to
stockpile until the end of the term of the current collective agreement. Any or all
of these things can jeopardize the continued existence of the workplace and
employment. Therefore, it is tempting to suggest the creation of a statutory duty
to bargain in good faith in the event of material changes and to give the Board
wider supervisory powers over those negotiations.
However, our conclusion is that it would be inappropriate to amend the Code to
deal with these situations. It is too often forgotten that the parties must accept
and retain ownership of collective bargaining. While one premise of the Code is
the desire for stability, the more fundamental principle of collective bargaining is
voluntarism. The parties are given the opportunity and the obligation to bargain
over working conditions so that they will own and take responsibility for the terms
of their collective agreements. They are more likely to accept terms and
conditions of employment that have been crafted together than terms that have
been imposed upon them by an external force.
The existence of a collective agreement need not stop parties from being able to
adapt to changing conditions. Indeed, sophisticated collective agreements contain
mechanisms to deal with such changing conditions as they arise. Recent history
shows how well parties have been able to respond to difficult challenges.
Canadian Airlines and its unions provide one example of parties who were able to
deal with the need to make adjustments during the terms of their collective
agreements because of the pressures created by deregulation and competition.
Had they failed to respond or been unwilling to enter into good faith negotiations
together, it is likely that they would no longer be in operation.
The federal sector also has many collective agreements that have incorporated
process clauses to deal with material changes and to effect contract adjustments
during the term of the agreements. The technological change provisions in the
Code have only come before the Board in a handful of cases since its enactment.
Parties in the federal sector apparently recognize that it is preferable to deal with
such changes through processes they design themselves.
We are encouraged by the many examples of parties working together
constructively to deal with change. We are not persuaded of the need for
statutory change.
In summary, we have made recommendations that will allow diligent parties to
conclude collective bargaining by the time their collective agreements expire. We
recommend that they be entitled to commence collective bargaining 120 days
prior to the expiry of collective agreements. Before parties acquire the right to
strike or lockout, they will have had to meet the following preconditions;
• a) conciliation, if appropriate, must be completed,
b) a positive strike or lockout vote has been held sixty days prior to the
notice of strike or lockout; and
c) a 72 hours notice of strike has been given.
Chapter 9
Rights and Obligations
During a Strike or Lockout
• Replacement Workers
• How the Code Regulates Strikes and Lockouts
•
•
•
•
•
Employee Status, Discipline and Remedies
Certification or Decertification during a Strike or Lockout
The Regulation of Picketing
Rights of Bargaining Unit Employees during a Strike or Lockout
Replacement Workers: Minority Opinion (Rodrigue Blouin)
In this chapter we address how the Code should deal with the rights and
obligations of the parties during industrial action. At present, the Code says very
little about this area of the law in direct terms, but a large body of case law has
developed over the years. All too often these issues generate costly, distracting
and complex litigation.
We begin by dealing with the most controversial issue - replacement workers. We
did not achieve unanimity on this issue and Rodrigue Blouin's minority opinion
appears at the end of this chapter. We then turn to a series of recommendations
designed to clarify the legal status of striking employees, in the hope of reducing
the incidents of posturing and of violence. In several instances, we recommend
the specific enactment of rules already developed through Board jurisprudence.
When bargaining breaks down and a strike or lockout takes place, people act
quickly and sometimes with emotion or anger. It is no time for uncertainty or
abstract debate about where the limits of permissible conduct lie. We believe the
law in this area should be expressed in the clearest possible language. Some of
the more confrontational disputes have been made more emotional and difficult
to settle because of threats of conduct clearly contrary to the intent of the Code.
This was only possible because the law was buried deep in the case reports rather
than plain for all to see.
Replacement Workers
No issue divides the submissions we received more than the issue of replacement
workers. Labour was virtually unanimous in favouring a legislated prohibition on
the use of replacement workers (a so called "anti-scab" law). Management was
equally unanimous in its opposition to such a proposal.
Reasons for Controversy
There are several immediate reasons for the focus on this issue. First, it has been
an area of provincial experimentation. Quebec introduced such legislation in 1977
and has lived with it without major difficulty since. Similar provisions came into
force in B.C. and Ontario in 1993. A vigorous legislative debate over replacement
workers took place in the U.S. Congress during the 1980's and early 1990's. The
controversy over the Ontario legislation heightened during the time of our review.
It became an important political issue during the election campaign; then the new
government repealed the law as the start of its overall labour law reforms.
Interest was also heightened because of the departmental review that preceded
the appointment of our Task Force. A discussion document prepared for that
review outlined an approach that would prohibit the external recruitment of
replacement workers, but which would also allow greater flexibility in the
deployment of managers and non-bargaining unit employees than is presently the
case under provincial statutes which restrict the use of replacements. Circulation
of this document met with the same polarized reaction from labour and
management groups that we have encountered on this subject in the present
review.
Several high profile disputes in the federal sector have also served to make
parties conscious of this issue. There was the dispute at Giant Mines in
Yellowknife, with its tragic circumstances. There were long disputes at Nationair
and at the ADM Mills in Montreal. Canada Post's use of replacement workers in the
1991 postal dispute, which involved several confrontations, also attracted
attention.
Early Canadian labour laws contained no statutory prohibitions on the use of
replacement workers. The Woods Task Force considered the issue and their
approach is summed up in the following quotation:
". . . the employer's economic sanction equivalent to the union's right to strike
rarely is the lockout: it is his ability to take a strike. Much of what follows in this
section, therefore, relates to the strike. However, it is important to note that the
employer's capacity to take a strike depends largely on his right to stockpile
goods in advance of a strike and to use other employees and replacements to
perform work normally done by strikers. Together with the lockout, these
possibilities constitute the employer's quid pro quo for the worker's right to strike;
this is as it should be, in our view." (Canadian Industrial Relations: The Report of
the Task Force on Industrial Relations, December 1968, paragraph 607)
Changing Labour Relations Environment
We live in an age of institutionalized unemployment. This has changed the ability
of striking employees to find alternate work for the duration of a dispute. It has
also reduced the risk to the employer of losing the services of some of its better
employees to greener pastures.
Employers have less ability to take a strike because of reductions in the numbers
of supervisory and managerial employees. In the past, these people often enabled
employers to get by, maintaining a core of operations and shipping stockpiled
product.
In some industries at least, there is a reduced flexibility in the supply
arrangements between suppliers and producers. The advent of just-in-time
delivery and similar concepts has reduced reliance on stockpiled parts and raw
materials. Thus, employers are subject to more pressures to keep their product
moving. These pressures are also felt by employers in the transportation and
communication industries.
Different Perspectives on Work and Work Stoppages
Part of the question involves the balance of power between labour and
management. However, underlying the issue is a more fundamental difference
between the parties about what bargaining rights entail. From an employer's
perspective, the obligation to bargain is an obligation to bargain over the terms of
work for their employees. They retain, in their view, the residual right to get the
work done in other ways, restrained only by any commitments that they make
through collective bargaining (for example, a prohibition on contracting out). Such
commitments end, in any event, once a work stoppage takes place.
From the union's perspective, employees retain a permanent connection to their
job until terminated. The Code maintains employees' status during a work
stoppage, and protects them against retaliation for exercising their right to strike.
Employees often perceive themselves as having almost a proprietary right not just
to employment, but to the performance of the work. They therefore see it as an
invasion of this proprietary right when someone else takes over their job.
There are also differences of view over what a strike is all about. Some see
collective bargaining as an important market instrument. The strike or lockout
tests competing views of the market value of work. The union maintains that the
work is worth a specified price; the employer, in turn, believes it can get the work
done for less. The availability of willing replacement workers and the efficiency
with which they perform the work tests these assumptions. If replacement
workers are unavailable or unsatisfactory, the employer is persuaded to raise its
offer. If they work well, this pressures the employees, through their union, to
reduce their demands to the market level.
Others see the strike as being fought on the more limited field of the financial
ability of the employer to survive a shutdown versus the ability of the employees
to survive without wages. Under this perception, the employer is seen as
garnering an unfair advantage by maintaining a revenue stream during a
shutdown. Employers argue that employees are not precluded from seeking
alternative employment during a work stoppage and that to achieve balance,
employers should not be prohibited from using alternate sources of labour.
The Potential for Violent Confrontation
One argument advanced in favour of anti-replacement worker legislation is the
need to avoid violent incidents that can arise when replacement workers attempt
to cross picket lines set up by striking or locked out workers.
No one favours violence, however caused. But violence is not, and need not be,
an inevitable consequence of the use of replacement workers. Unions advance
this argument somewhat gingerly, and employers resent it being advanced at all.
In the employer's view, to restrain its options because those on strike may
become violent is seen as punishing the victim, not the perpetrator.
Neither side of this argument is fully justified. Experience shows that violence
most often occurs when replacement workers and strikers come into contact with
each other in a heated labour dispute. Sensible measures to reduce that potential
should be considered seriously. Sometimes it is the strikers that instigate violence
and sometimes, but by no means at all times, this is due to encouragement from
their leadership. We recognize the important efforts taken by many union leaders
to discourage violence in such situations. But it is not always the fault of the
strikers or their union. Replacement workers and front line supervisors have also,
on occasion, engaged in their fair share of provocative conduct.
In our experience, it is the threat of permanent job loss, and taunting about that
between replacement workers and strikers, that raises picket line pressures
towards the potential for violence. Creating a clear statutory right to return to
work, eliminating the threat of permanent replacement, should moderate some of
the deepest tensions.
In other areas of workplace regulation, employers and employees work hard to
protect the personal integrity of the worker. We see this in our strict attitude
towards safety hazards and the fact that we treat personal and particularly sexual
harassment as intolerable actions. We recognize that it is simply unacceptable, no
matter what the circumstance or alleged justification, to expose workers to
physical harm or undue abuse. This same fundamental assumption must be
accepted for the picket line. Labour and management must both take
responsibility for the conduct of those they represent, or those who represent
them, in such situations.
Impact on Investment
Employers argue that any introduction of anti-replacement workers legislation will
create an environment hostile to investment and scare away sources of capital,
costing jobs and security.
A related, but more subtle argument, is that such legislation will gradually affect
the way employers structure their business affairs, reducing their dependence
upon their permanent workforce in favour of subcontracting and similar practices.
The investment argument arises partly because some provinces have antireplacement workers legislation while others do not. Despite the vigour of the
argument, we found disappointingly little research available on the impact that
different provincial laws (particularly in Quebec) had on investment decisions.
Many investors are said to compare our laws to U.S. laws. U.S. laws currently
permit the use not only of temporary but permanent replacement workers.
However, these laws are also subject to an exception. U.S. law includes the
concept of the unfair labour practice strike or lockout. If a dispute is engendered
by illegal activities , such as ridding the workplace of the union, then an employer
may not make permanent replacements and striking workers have a right to
return to work.
Impact on the Duration and Results of Strikes
How do anti-replacement workers laws affect the incidence, duration or results of
labour disputes? We wish we could point to a conclusive answer but we cannot.
Often labour and management supported their positions by referring to "studies"
which were neither named or filed with us for review. Closer analysis revealed that
there are few definitive studies. Those that do exist arrive at somewhat different
conclusions.
One 1993 study of Canadian manufacturing agreements, by John W. Budd of the
University of Minnesota, entitled "Canadian Strike Replacement Legislation and
Collective Bargaining: Lessons for the United States", concludes "there is no
evidence to support the contention that the presence of legislation affecting the
use of strike replacements significantly alters relative bargaining power and the
wage determination process or significantly impacts strike activity."(1)
A second study, however, by Peter Cramton, Morley Gunderson and Joseph Tracy,
respectively of the University of Maryland, University of Toronto and Columbia
University, entitled "The Effect of Collective Bargaining Legislation on Strikes and
Wages", and published in 1994, finds that prohibiting the use of replacement
workers during strikes is associated with significantly higher wages and more
frequent and longer strikes. The Gunderson study compared private sector
contract negotiations involving 500 or more workers from 1967 to March 1993.
Particularly significant is their conclusion that "As predicted by theory, the ban on
replacement workers is associated with longer strike durations (a 37%
increase)."(2) The authors acknowledge however, that their conclusions are based
only on a comparison with Quebec.
Varying Vulnerability of Employers
Employers are unequally vulnerable to a prohibition on replacement workers.
Some employers are vastly more susceptible to competition from non-union
competitors. Other employers have a capital plant that requires regular
maintenance even during a shutdown. Some can stockpile or reorganize during a
shutdown, while others cannot. This alters the power balance and can thus skew
wage settlements in different ways for different workplaces. The impact of a
prohibition on employing replacement workers would therefore be quite uneven.
Frequency of Use
Some argue that the laws should prohibit replacement workers because so few
employers use them anyway. For some employers, particularly with specialized
work, there is no alternative workforce to call upon. In other industries, stockpiling
(by suppliers or customers) gives sufficient protection against the full force of a
strike. Many other employers choose not to risk the adverse labour management
relationships that can result from using replacement workers. In the federal
jurisdiction, external replacement workers were hired in about 25% of the 48 work
stoppages under the Canada Labour Code which occurred during the period 1991
to 1994.
While it is true that most employers neither plan for nor use replacement workers,
the law can nonetheless be an important consideration for collective bargaining
strategies. Unions and employers may both modify their behaviour depending on
their ability or lack of ability to operate with replacement workers. In this sense, it
is not the actual use, but the threat of use and the perceived ability to use
replacements that is important to the balance of bargaining power.
Threat to Collective Bargaining Rights
Some argue that it is not the ability to use replacement workers itself that is
objectionable so much as its frequent abuse. They point out the correlation
between the use of replacement workers and efforts to undermine the trade union
and destroy its bargaining agency.
This argument mirrors experience with the duty to bargain in good faith. Labour
boards have moved to restrain bargaining proposals that indicate an intention to
dislodge the union rather than to achieve a particular bargaining result. The
distinction between this form of bad faith bargaining and hard bargaining is never
easy to discern. However, such conduct is often accompanied by other conduct
indicative of the same intention. While labour boards are reluctant to interfere
with genuine bargaining positions, they are not, nor should they be, reluctant to
intervene when bargaining positions become thinly disguised unfair labour
practices aimed at undermining the union's right to represent employees.
1
J.W. Budd, Canadian Strike Replacement Legislation and Collective Bargaining:
Lessons for the United States, August 1933, mimeo, University of Minnesota,
pages 21 and 22.
2
P. Cramton, M. Gunderson and J. Tracy, The Effect of Collective Bargaining
Legislation on Strikes and Wages, mimeo, June 9, 1994, page 11.
How the Code Regulates Strikes and Lockouts
Industrial disputes have three main causes:
• The representation strike: where the union strikes to get the employer to
recognize the union and to agree to bargain.
• The rights strike: where the parties have a collective agreement but
disagree about its application or meaning.
• The interest strike or lockout: where the parties seek to change the terms
and conditions of employment set out in a collective agreement.
Allowing unions to strike and employers to lockout over any concern, at any time,
and to achieve any objective, causes too much social and economic hardship, and
often too much violent confrontation.
Our legislative model deals with each of these causes of industrial action in a
different way.
In place of the representation strike, the Code provides a majority support
certification system. Majority support, established through certification, allows the
union to compel the employer to bargain. Periodically, employees may choose to
revoke certification through a similar system. Industrial action over the issue of
union representation is unnecessary, and implicitly prohibited, because the
certification system provides an effective substitute.
A mandatory process of rights arbitration replaces the rights dispute. Strikes and
lockouts are prohibited during the term of a collective agreement. In exchange, all
disputes about the applica- tion, interpretation or operation of the collective
agreement can be submitted to mandatory binding arbitration.
Striking (or locking out) to get better terms and conditions of employment
presents the more difficult issue. Negotiation and conflict resolution have a
healthy effect on the workplace and the market place. Change is often needed,
issues need to be resolved, and bargaining to mutually agreeable terms is
necessary even if it involves conflict. The problem is how to prevent this being
random and unduly disruptive. The compromise is a system that recognizes the
right to strike or lock out, but limits the exercise of that right to certain predictable
occasions.
We accomplish this by providing for fixed term collective agreements. Parties can
only use industrial action at the end of that term, and only then after they meet,
bargain in good faith and make every reasonable effort to arrive at a collective
agreement. Collective agreements become reliable during their term and strikes
and lockouts become predictable, if bargaining fails.
How does this system fit with the question of replacement workers? Despite
deeply divided submissions, one point has common acceptance. No one believes
that the utilization of replacement workers is a legitimate practice if its purpose is
to rid the workplace of union representation or undermine the role of the union
rather than to achieve an acceptable collective agreement.
We have heard accounts of disputes where employers have used or planned for
the use of replacement workers. In some of these disputes, it appears to us that
the employer was pursuing goals beyond the economic position they wished to
achieve and had been sustaining the dispute, using replacement workers, solely
to achieve a non-union workplace. Such intentions can be inferred from reports of
unfair labour practice complaints and from first-hand accounts of the disputes
themselves. Indeed, some employers have virtually said as much during the
disputes in question. It is unquestionably demoralizing for employees to see the
threat of permanent loss of their jobs, not because they will not accept the
employer's economic terms, but because they insist on their legal right to retain
union representation. Minority Opinion (Rodrigue Blouin) (Continued)
Replacement workers can be necessary to sustain the economic viability of an
enterprise in the face of a harsh economic climate and unacceptable union
demands. It is important in a system of free collective bargaining that employers
maintain that option, unrestrained by any blanket prohibition. If this option is
removed, employers will begin to structure themselves to reduce their reliance on
their permanent workforces for fear of vulnerability, to the detriment of both
workers and employers alike.
It is only in exceptional circumstances that replacement workers are used for an
inappropriate end. Then, the strike or lockout ceases to be an economic interest
dispute, and instead becomes a representation dispute. The majority support
system of certification and decertification was designed to avoid representation
disputes. Such disputes threaten the underpinnings of the system.
But how does one tell when a strike or lockout changes from a legitimate
economic dispute to a dispute over the employee's right to be represented by a
union and where replacement workers are being used for that purpose? There is
no clear test that can be applied.
The union's rights are rooted in its majority support amongst the employees. We
think that it is legitimate, before a strike is taken, to ensure that the employees'
support for such a move is tested. That is why we have recommended that a
strike vote be held in relatively close proximity to the start of any strike initiated
by the union.
Once the strike or lockout commences, we believe that it should be fought out on
the bargaining issues, not on the question of representation. Replacement workers
should only be prohibited where they are used for an illegitimate end. Our
recommendation can achieve this while preserving the basic balance of collective
bargaining.
Recommendations:
There should be no general prohibition on the use of replacement
workers.
Where the use of replacement workers in a dispute is demonstrated to
be for the purpose of undermining the union's representative capacity
rather than the pursuit of legitimate bargaining objectives, this should
be declared an unfair labour practice.
In the event of a finding of such an unfair labour practice, the Board
should be given the specific remedial power to prohibit the further use
of replacement workers in the dispute.
Employee Status, Discipline and Remedies
We now turn to the other issues that arise during a strike or lockout.
Section 3(2) of the Code provides that "no person ceases to be an employee
within the meaning of this Part by reason only of his ceasing to work as the result
of a lockout or strike or by reason onlyof his dismissal contrary to this Part".
By definition, once a strike or lockout begins, the collective agreement is no
longer in force. Therefore, unless the parties otherwise agree, an employee who is
disciplined or dismissed during a legal work stoppage has no access to arbitration.
Some unions argue that an employer should have no right to discipline or dismiss
an employee for conduct engaged in during the course of a strike or lockout. We
recognize that circumstances change drastically and this impacts on what
amounts to just cause. But we disagree with the suggestion that all discipline
should be prohibited. Being on strike or lockout does not mean that employees
should be free of liability when responsible for misconduct.
Employees retain employee status, and the consequence of this is that they retain
certain duties of appropriate conduct. Avoiding strike-related misconduct is one
such duty. Our concern about picket line violence also leads us to maintain the
employer's basic ability to discipline as a deterrent to such conduct. However,
discipline in such circumstances is inevitably controversial. Disputes about the
appropriateness of such discipline need to be dealt with quickly and fairly.
Unresolved disputes about strike misconduct have prolonged too many disputes
unnecessarily.
Some argue that there are already remedies available. Possible recourse for an
employee includes: filing an unjust dismissal complaint under Part III of the Code
(which requires one year of service); filing an unfair labour practice complaint
under Part I alleging that the dismissal was for union activities; or filing a
complaint with the Canadian Human Rights Commission alleging dismissal for one
of the prohibited grounds. These remedies are too flimsy and tangential to deal
promptly and adequately with such situations.
Others argue that such questions are best left to the negotiation of a return to
work agreement. Collective bargaining should resolve such issues. But too often
these lingering questions hold up a suitable economic settlement. A statutory
remedy would avoid this. The consensus process produced the following
agreement:
• REDRESS FOR EMPLOYEES DISCIPLINED OR DISMISSED
• WHEN NO COLLECTIVE AGREEMENT IS IN FORCE
• The Code should contain some wording to allow redress to employees
disciplined or dismissed when no collective agreement is in force, including
during a strike or lockout and the period following certification until a final
contract is concluded.
We agree with this and make that recommendation for strike-related misconduct
as well as for discipline in the other circumstance (that is, before a first agreement
is reached). Unless the parties agree on some other process, it should be
arbitration by a single arbitrator.
Recommendation:
Where a bargaining relationship exists (either certified or voluntary) but
no collective bargaining agreement is in place, disputes about employee
discipline or dismissal should be subject to a process of arbitration. This
should be by a single arbitrator unless the parties agree otherwise, and
during strikes or lockouts should be carried out under an expedited
process.
There are some aspects of employee status that are put at risk by a strike or
lockout because they depend upon the resulting collective agreement. However,
some aspects of employment are so fundamental they ought not to be put unduly
at risk by a work stoppage. These include pension and insurance rights.
Section 94(3)(d) prohibits an employer from denying to any employee any
pension rights or benefits to which the employee would be entitled but for the
cessation of work by the employee as the result of a lockout or strike that is not
prohibited by Part I of the Code. The Code merely preserves pension and other
benefits enjoyed or acquired prior to discontinuing work.
This is appropriate and should continue. Some provinces also protect insurance
rights which are frequently provided through employer group plans. Employees
with families are dependent on these plans for basic securities like life insurance,
medical, dental or disability coverage and so on. It is often difficult, if not
impossible, for employees to make alternate arrangements. Employees should be
free to continue paying the full cost of premiums through their union, and the
employers shouldbe required to allow such benefits to continue.
Recommendation:
For the duration of a strike or lockout, employees through their union
should be entitled to maintain employer- administered or third party
insurance or similar benefit programs without interruption by the
insurer or employer. This option should be conditional on the employees
or union paying the full premium costs of such benefit plans.
We heard expressions of concern about situations where persons collecting social
assistance or unemployment insurance benefits were threatened with the loss of
entitlement to their benefits if they declined opportunities to be engaged as
replacement workers. This is clearly not appropriate.
Recommendation:
Governments should ensure that income protection programs are
administered in such a way that individuals are not penalized for not
accepting work as replacement workers.
Right to Return to Work
Many labour disputes are aggravated by the threat that, by striking, employees
will permanently lose their jobs. There is always the real risk that industrial action
may threaten the economic viability of the workplace. Both sides must remain
conscious of that risk and no law can protect them from that danger. The threat
we refer to here is the one where employees will lose their jobs because others
will permanently replace them. This happens when, at the end of a dispute, an
employer favours those who worked during the dispute over those who exercised
their right to strike or who endured the lockout.
The Code prohibits such discrimination now, although not in expressed terms. The
Board has so ruled in several cases. There is consensus between labour and
management that the right to return to work should receive explicit statutory
protection.
• RIGHT OF EMPLOYEES TO RETURN TO WORK FOLLOWING THE
CESSATION OF A STRIKE OR LOCKOUT
• The Code should contain some wording confirming the right of striking
employees to resume their employment following the completion of the
work stoppage.
Striking employees should be given an expressed statutory right to return to work
at the conclusion of a lawful strike or lockout in preference to any persons hired
during that strike or lockout.
In implementing this recommendation, it must be recognized that a dispute may
not end in an agreement. Strikes can fail. The right is the right to return to work in
preference to any replacement worker hired during the work stoppage, not a right
to any particular collective agreement or even any agreement at all. There are
several provincial models for such return to work arrangements and we make no
recommendation as to which model works best. The model needs to make
allowance for a reasonable period of notification, the problems of the start-up or
lack of work, and similar transitional issues. In the most situations, this issue will
be adequately dealt with by a back to work protocol negotiated between the
parties. Labour and management should consult further on this point.
Recommendation:
The Code should contain wording confirming the right of striking
employees to resume their employment following the completion of a
work stoppage.
Certification or Decertification during a Strike or Lockout
Section 24(3) of the Code prohibits the filing of an application for certification or
decertification during the first six months of a strike or lockout without the
consent of the Board. Similar prohibitions exist in various provinces. The six
month time frame sometimes encourages posturing during bargaining in the hope
that decertification will ensue after six months of stalled negotiations. This time
frame is artificial and we recommend that it be replaced with a general
requirement for Board consent when industrial action is ongoing.
By making this recommendation, we are not suggesting that valid applications
should be any more difficult to process. There are circumstances where such
applications are clearly voluntary and appropriate. This section simply provides a
check, during a difficult period, on those applications that may destabilize
bargaining and lack the necessary voluntary support.
Recommendation:
The reference to six months in section 24(3) should be removed and any
application for certification or decertification filed during an ongoing
industrial dispute must require the consent of the Board.
This raises the recently litigated question of who can participate in the selection of
a bargaining agent during a strike or lockout. The Board has held that a
replacement worker hired during a work stoppage is not included in the
bargaining unit and that only those in the bargaining unit at the outset of the
strike or lockout are eligible to participate in the revocation of the bargaining
agent's authority or the selection of any new bargaining agent. This is consistent
with the temporary status of replacement workers. It should not restrict the rights
of permanent employees to participate, whether they have supported the union or
returned to work voluntarily. To avoid argument on this issue we recommend that
this be codified.
Recommendation:
Eligibility to vote on a question of certification or revocation during an
ongoing labour dispute should be restricted to persons who have the
status of employees, as opposed to replacement workers, whether or not
they remain on strike or locked out or return to active employment
during the dispute.
On this point we re-iterate that the duty to bargain in good faith and make every
effort to conclude a collective agreement continues during a strike or lockout,
although its content changes somewhat. Parties are not obliged to sit and look at
each other for no purpose. In particular, the obligation continues even in the face
of an application for revocation or certification of another union unless the Board
otherwise orders. We do not believe this needs to be specifically stated in the
statute, but we do not wish any of our recommendations to imply otherwise. An
application to revoke or change bargaining rights does not stop the bargaining
process.
The Regulation of Picketing
The Canada Labour Code has no provisions concerning the location, duration or
manner of picketing. Nowhere in the Code is the Board given the power to
regulate legal picketers, nor is there any code of conduct for picketers. Where
picketers engage in criminal or other wrongful behaviour, the remedies remain in
the courts under criminal or civil law. The Board may indirectly become involved in
illegal picketing through its power to declare a strike or lockout to be unlawful and
to restrain its continuation.
Several provinces have moved jurisdiction over picketing out of the courts and
into the labour relations boards. The justification has usually been that the boards
can deal with such matters quicker and in a manner more sensitive to the
underlying labour management difficulties. Several parties advocated such a
move for the federal jurisdiction, but we have decided not to make such a
recommendation.
The Board, at present, is having difficulty responding to disputes across Canada in
a sufficiently timely way. The regulation of picketing, to be of use, requires early
and astute intervention. We are not convinced that this capacity currently exists
at the Board although it ought to be developed for the future and the question
revisited once that capacity is achievable. Picketing issues are also peculiarly local
in their character. Enforcement now takes place in the provincial superior courts.
A move to federal court enforcement mechanisms at this time would be
inappropriate. (We do make recommendations concerning the broader
enforcement of the Board's orders in chapter 13).
Finally, picketing issues often involve a peculiar mix of jurisdictions, where
provincial employees honour federal picket lines and vice versa. In the present
situation, at least in some provinces, the courts have authority to deal with
employees under either jurisdiction. We are not convinced that there is sufficient
reason, or sufficient support amongst the parties, for a change in the status quo
at this time.
Rights of Bargaining Unit Employees during a Strike or Lockout
While the Code does not prohibit employees in a bargaining unit from continuing
to work during a strike, the employer is not required to allow them to do so.
Employees do not have the right to return to work until the strike or lockout is
over. Neither can employees demand that the employer allow them to work
during the dispute instead of replacement workers. Employers sometimes have
valid bargaining or security reasons for refusing permission to return to work in
such circumstances.
The Code protects employees who refuse to participate in an illegal work
stoppage from union discipline. However, the Code does not prohibit a union from
disciplining members who, for example, continue to work during a legal work
stoppage, provided the union's constitutional rules are applied fairly and without
discrimination. Even if membership in the union is a condition of employment
under the collective agreement, the union may not require the employer to
dismiss employees who have been suspended from membership in the union
unless it was for a refusal to pay normal union dues.
The Code protects employees who decline to perform the work of employees who
are engaged in a lawful strike or lockout. The Code offers no special protection for
refusing to handle goods or to do work which would facilitate the operations of
another employer whose employees are participating in a legal strike. The only
exception is where there are clear provisions in a collective agreement, such as
those permitting employees to honour legal picket lines, which may convince the
Board not to declare the job action an illegal strike. Such protection should remain
subject to negotiation rather than receiving general statutory protection.
These provisions are relatively well articulated in the Code and understood by the
parties. As a result, no recommendations for change are made in this area.
Replacement Workers: Minority Opinion (Rodrigue Blouin)
The exercise of economic pressure remains a basic element of collective labour
relations. This undeniable characteristic of the system raises the question of the
appropriateness of banning the use of replacement workers. My minority opinion
addresses this concern.
We said that we would be guided by consensus wherever possible. We could not
identify any consensus among the parties consulted. These parties, furthermore,
adopted divergent and irreconcilable positions on the specific issue. Moreover, the
studies and research consulted also offer no conclusive answer.
I submit that the general principles underlying our system of collective labour
relations dictate that the presence of replacement workers during a legal strike or
lockout is illegitimate. Their use must hence be declared illegal.
The Illegitimacy of Replacement Workers
The use of replacement workers undermines the structural elements that ensure
the internal cohesion of the collective bargaining system, by introducing a foreign
body into a dispute between two clearly identified parties. It upsets the economic
balance of power, compromises the freedom of expression of workers engaging in
a strike or lockout, shifts the original neutral ground of the dispute, and leads
eventually to a perception of exploitation of the individual. The question of the
replacement of workers engaging in industrial action must be examined
systematically and not by simply relying on certain characteristics of the
dynamics of disputes, such as their frequency or duration. These facts must
nevertheless be considered. The conclusion to be drawn from my analysis is that
there is, on the whole, a situation of illegitimacy that Parliament must condemn in
no uncertain terms.
The introduction of an outside interest into the good-faith bargaining process between two clearly
identified parties
Canada is a democratic country with a free market economy. The principal engine
that drives such a system is individual economic interest. The holders of the
financial capital necessary to operate businesses seek to maximize their assets,
whereas workers seek a better sharing of the profits. Historically, workers
associated and sought to impose on employers the collective negotiation of their
working conditions. Serious conflicts resulted. The State decided to intervene and
established a structure of rights and obligations. The system of collective relations
transplanted into the workplace the first seeds of the major ideals of political
democracy, namely, freedom of association, free-dom of assembly and freedom of
expression, for the purposes of promoting socio-economic rights (the protection of
employment against arbitrariness, the safety of the person in the workplace,
decent working conditions, access to labour justice). This system is intended,
moreover, to promote economic democracy, i.e., to enable workers to develop
and administer their working conditions and guarantee the means of resolving
conflicts peacefully between them and their employers.
Although Parliament has always pursued the objective of minimizing collective
labour disputes, it has not seen fit to make them all subject, necessarily and in all
circumstances, to peaceful resolution. Thus, a distinction developed between
rights disputes and economic disputes. Rights disputes, in specific disputes
involving union recognition and unfair labour practices and, in particular, disputes
involving disagreements over the interpretation and application of the collective
agreement, were automatically referred to quasi-judicial agencies. In the case of
economic disputes, in the absence of a viable substitute, it appeared acceptable
to resort occasionally to economic confrontation.
The possibility of resorting to industrial action remains, even today, the
cornerstone of the collective bargaining system. This economic confrontation,
however, can only involve two clearly identified parties who, moreover, have a
statutory obligation to bargain in good faith. Thus, as soon as a bargaining agent
is certified, the employer of the represented employees can no longer refuse to
negotiate a collective agreement. But this does not oblige it to conclude an
agreement. Following a certain period of formal bargaining, the collective dialogue
can, if there is no settlement, be broken off and the economic conflict declared.(3)
At no time during this process can another interest enter into the bargaining
relationship, except in the few cases expressly provided for in the Code.
Throughout the process, the certified union has the exclusive authority to bargain
on behalf of all the employees in the bargaining unit. This union represents all
present and future employees and has a duty to represent them fairly.(4) These
exclusive rights and obligations of representation continue after the breaking off
of the collective dialogue; it ceases only with the loss of certification. According to
the jurisprudence, the employer can, however, hire replacement workers where
there is a declaration of strike or lockout, even though the Code does not
expressly provide for the use of such workers.
The employer's obligation to bargain in good faith with the certified union and the
employees' statutory obligation to be represented exclusively by this same
bargaining agent continue during a strike or lockout but are not unlimited.(5) The
Code provides that no application for certification or revocation of certification can
be made during the first six months of industrial action.(6) The Canada Labour
Relations Board has ruled that only employees working when the industrial
dispute began have the necessary interest in deciding through a vote the
representative character of the bargaining agent, and hence, replacement
workers would not be included in the bargaining unit and would have no voice in
deciding the interunion dispute.(7) The effect is to recognize replacement workers
as intruders into a democratic bargaining process that began well before they
were hired and that continued despite their presence at work. In addition, to
restore full and complete legitimacy to union representation during the critical
periods of the collective bargaining process, I have subscribed to the following
recommendations of my colleagues: 1) The reference to six months in section
24(3) should be removed and any application for certification or decertification
filed during an ongoing industrial dispute must require the consent of the Board;
2) Eligibility to vote on a question of certification or revocation during an ongoing
labour dispute should be restricted to persons who have the status of employees,
as opposed to replacement workers, whether or not they remain on strike or
locked out or return to active employment during the dispute.
The use of replacement workers violates the cardinal rule that collective
bargaining be conducted exclusively between two clearly identified parties. This
departure, moreover, undermines another cardinal rule which holds that one
should not interfere in the respective economic powers of the parties.
Upsetting of the economic balance between the parties to collective bargaining
The exerting of economic pressure occurs between two clearly identified parties
confronting each other in a clearly defined work environment, namely that of the
bargaining unit. The bargaining agent is, for all practical purposes, merely a
conduit for the expressed wishes of the employees. To avoid any future ambiguity
about this role of certified unions, I have agreed to the recommendation
concerning the mandatory strike vote.
Before a work stoppage is declared, two economic facts governing the parties
seem highly significant. First, the employees are paid wages for their services in
the workplace. Second, because of their employees' output, employers are able to
engage in commercial and other activities and to obtain income. Strikes or
lockouts break this interdependence and deprive both parties of their respective
benefits.
The logic of using economic pressure tactics is that depriving employees of wages
will lead them to act cautiously and move them to an acceptable settlement as
quickly as possible. The same would be true for employers, cut off from their
supplies. However, this assertion requires that questions be asked about the
respective costs. The analyses that have addressed this matter are very
ambiguous and no useful conclusion can be drawn from them for the purposes of
our discussion.(8)
As long as a dispute continues to respect initial economic characteristics, the
structure of the dispute system is preserved. Accordingly, I submit that the use of
replacement workers upsets the economic balance of power as it exists when
bargaining begins and subsequently continues in the workplace. However, the
question of who benefits from the imbalance is not an easy one to answer.
Employers unanimously and vigorously argue that the use of replacement workers
is justified because it makes it possible to restore the economic balance of power
that tends to tip in the employees' favour during strikes and even during lockouts.
According to employers, this is so because employees may work elsewhere.
There is no research to support such an assertion. To be persuasive, it would also
have to be established that the job held during the dispute is not the same as
another job the employee already had elsewhere. It would also have to be shown
that a sufficient proportion of employees engaging in industrial action have a new
job. Nothing of the sort has been established and it is difficult to conceive how it
could be done reliably. Also, since there is currently an abundance of available
workers, the ability of strikers to obtain other work is very tenuous.
On the other hand, employers may be able to maintain the economic balance
while respecting the general structure underlying the dispute situation. They can
often proceed by way of a subcontract that can be performed outside of the
workplace. This places the employer in the same position as the employees, that
is, the employer is compelled to find a viable means of survival. Moreover, there is
no real comparison between the employees' daily survival problems and those of
employers, since employers may be able to continue production in any case
through their managerial staff. Employees may end up in debt and jeopardize
their future careers, not to mention the family problems they may experience.
Some briefs submitted to us and some articles provide accounts of difficult
situations.
Referring again to the studies on the respective costs of industrial action, I
concede that the joint-cost hypothesis is ambiguous with respect to a ban on
strike replacement.(9) Nevertheless, I feel that the use of replacement workers
seriously upsets the fragile economic balance between the parties and tips the
scales in the employer's favour. This happens because an outsider to the
collective bargaining process takes the side of one of the parties. The work
dispute is no longer two-sided but three-sided.
The use of replacement workers has the same effect as the use of professional
strikebreakers, that is, persons whose purpose is to break a strike. It is interesting
to note the terminological confusion that exists in the literature about these
words. In the final analysis, the use of replacement workers compromises the
purpose of collective bargaining. It also has an even more perverse effect: in
some respects, it impairs the freedom of expression of the employees who initially
became involved in the dispute process and who support it.
Freedom of expression impaired
When employees in a bargaining unit choose to go on strike, they must proceed
through the union if they want to benefit from the protection provided by the
collective bargaining system. A set of highly restrictive conditions then applies to
the use of this economic pressure tactic. Furthermore, this individual authorization
by each employee, who is nevertheless bound by the collective decision, must be
looked at in the more general context of the fundamental freedoms guaranteed by
the Canadian Charter of Rights and Freedoms.
Two of the Charter's fundamental freedoms in particular affect the collective
bargaining system: freedom of association and freedom of opinion and
expression.(10) The Supreme Court of Canada has held that constitutionalized
freedom of association does not protect any union activities, including collective
bargaining and the right to strike. (11)However, the judgments in question do not
address the scope of freedom of expression.
The Charter also guarantees freedom of expression. To what extent can collective
bargaining and the main types of disruption to which it gives rise, particularly
strikes and picketing, claim to be protected by this constitutional freedom? A
strike is generally defined as the means of expression by which employees let
their employer know they are stopping work. Picketing, in the collective
bargaining context, is the means of expression by which these same employees
let the public know they are on strike. Both striking and picketing involve
expressions of individual wishes by means of union activity. According to the
Supreme Court of Canada, picketing includes elements of constitutionally
guaranteed freedom of expression,(12) specifically the individual aspect of an
employee deciding to become involved in picketing. This must therefore also be
true for strikes. The Charter merely gave constitutional status to values that
Canadian society has long recognized as fundamental freedoms. These values
exist in private relations, including in the workplace, as fundamental but
unconstitutionalized values.
Authorization given to the bargaining agent to begin a strike is the result of the
individual freedom of expression exercised by each employee involved in this
economic pressure tactic. It is this freedom of expression that creates, maintains
and ends the impasse. To end the dispute, most union constitutions require
authorizations in a similar manner.
The arrival of replacement workers in the bargaining unit's workplace disrupts the
exercise of this fundamental freedom by employees engaging in a strike or
lockout. The replacement workers interfere in a dispute in which their own interest
is very problematic, i.e. to ensure that the dispute continues. The Canada Labour
Relations Board has held that these replacement workers must be characterized
as temporary employees(13) and that their right to work once the dispute ends is
subordinated to the preferential right of those who were regular employees when
the dispute began to be recalled.(14) Moreover, these workers are directly aligned
to the employer's side since they allow the employer to continue production after
it is disrupted by the strikers. They distort the rules of the game in every respect.
The situation is even more incongruous in the context of a lockout.
In short, replacement workers to some extent impair the exercise of the freedom
of expression of employees in the bargaining unit engaging in industrial action.
Their presence even diverts the dispute from the true economic issue involved by
placing the focus on the right to work.
A Shift in the Object of Negotiation
Strikes and lockouts are essentially conflicts of an economic nature. During such
periods of conflict, the jobs of those on strike and those locked out are in a
precarious situation. Without employment the very existence of the regime of
work, the object of negotiation, becomes illusory. Employees identify with their
jobs. Their employment is "an essential component of [their] sense of identity,
self-worth and emotional well-being."(15)
The Code recognizes that an employee does not lose employment status simply
through having suspended working because of a strike or lockout.(16) Setting
aside the legal fine points, the employee knows that his or her job cannot be
usurped by a third person - a fact which is acknowledged at the end of the
conflict.(17) Our Task Force confirms this with the recommendation: "The Code
should contain wording confirming the right of striking employees to resume their
employment following the completion of a work stoppage."
But when an employer begins to hire replacement workers, the employees in the
conflict react viscerally. Economic logic can be eclipsed by the pressures of
frustration. The employees feel that they are the victims of an attack on them
personally. They consider the employer to be unfair. The focus of the dispute then
shifts to those who are perceived as job-stealers and strike-breakers away from
the substantive issues that divided the original parties. Judgment is obscured by
anger, and attitudes harden.
The visceral reaction by those on strike and locked out is aggravated by the fact
that the employment problem becomes a challenge to society. To the strikers,
they are now in this crisis situation with the company. The bargaining agent finds
itself inevitably caught up in this situation. It must either respond vigorously to
this concern among its members or risk being dislodged.
The representations made to the Task Force by the unions indicate that the use of
replacements has an excessively negative effect on the behaviour of those on
strike and locked out. Often their reactions get out of the control of the union
leaders. The anger which characterizes the employees at such times is reflected
in the literature.(18)
From these observations, it is clear that the use of replacement workers disrupts
the normal course of the conflict by compelling the bargaining agent to preserve
the integrity of his members' rights when they return to work. In the final analysis,
the fate of the replacements makes them feel that they are a source of cheap
labour; they in turn eventually fall victim of the system.
A Perception of Exploitation
Historically, at certain times, there have been serious problems with the free
market economy which have given rise to worker exploitation. Such situations
have occurred because of the characteristics of the labour market, the work force
and the organization of labour. The changes taking place today that affect our
industrial relations system are creating social problems and raising serious
criticisms. Canadian society is having increasing difficulty maintaining the living
standard that has made it the envy of the world. The distribution of wealth is
becoming increasingly top-heavy. Nearly five million Canadians are living near the
poverty level. In the meantime, social legislation has remained relatively
unchanged.
The working conditions of replacement workers are generally not conditions of
exploitation. But with an overabundance of labour, those on strike or locked out
may feel that the employer can always find someone to work at bargain rates,
and has adopted this strategy. Accordingly, the replacement workers are looked
on with disdain. This perception on the part of the strikers is not necessarily
shared by the public.
Confrontations between two groups of workers are reminiscent of the bitter
struggles that occurred at the beginning of the century. Moreover, some
perception of exploitation shows its full significance at the end of the conflict.
We have already indicated that the replacements' right to employment is
subordinate to that of the employees at the beginning of the conflict. I have
agreed to the recommendation that only the regular striking or locked-out
employees may voice their opinion on the representativeness of the bargaining
agent. In sum, a situation results where the replacements must, in the end, leave
the workplace by the side door. They may then feel that they have been
exploited. They may have hoped to obtain a permanent job, in spite of the
cautions the employer might have expressed upon hiring them.
This general conclusion is in no sense altered by the findings in studies where the
focus is placed on achieving some isolated objectives being sought by the
legislator when considering whether a legal prohibition should be established
against hiring replacement workers.
Neutral Impact of Some Analytical Factors
The decision of whether or not to ban the use of replacement workers may involve
various analytical factors which may directly relate to the dynamic of labour
disputes, such as their frequency and duration or the violence that occasionally
manifests itself in such disputes. Other factors may also be considered, such as
the impact that banning the use of replacement workers may have on salaries or
on employment.
Such an approach may be risky if it examines these variables in isolation when
drawing conclusions about the impact of a legal ban. These factors must be
placed in the context of a broader issue, which is to seek the extent to which they
affect the internal consistency of the collective bargaining system.
The subjects that have interested researchers the most to date are the
frequency(19) and duration(20) of disputes. There are two opposing arguments in
this regard. The first states that legally banning replacements increases the
frequency and duration of strikes.(21) It should be noted, however, that this
conclusion is based mainly on the experience of Quebec.(22) The second
argument does not entirely reach the opposite conclusion. Rather, it argues that
such a ban does not have a significant impact on these variables.(23) It must be
noted, however, that this conclusion is again drawn mainly from the situation that
prevails in Quebec.(24) An initial study by the Department of Labour of Quebec
(1982) suggested that a legal ban may have had an impact on the increase in the
duration of disputes.(25) However, a more recent study by the same department
(1991) shows a correlation between the number of employer violations of the ban
on the use of replacements and the duration of disputes: "Higher proportions of
files with violations seem to be associated with longer labour disputes"(26) (our
translation). Moreover, a study by the Ministry of Labour of Ontario suggests that
non-use of replacement workers in 1991 reduced the duration of strikes.(27)
I submit that, in the final analysis, no definite conclusion can be drawn concerning
the impact of replacements on the frequency and duration of disputes. In my
opinion, the objective of reducing the duration of disputes is not in itself
necessarily compelling in deciding whether or not it is advisable to introduce a
legal ban on the use of replacement workers. To justify their presence, it would be
necessary to establish from the outset that the frequency and duration of disputes
between the bargaining agent and the employer jeopardizes the consistency of
the system and questions its survival. This point has not been established.
Violence is sometimes mentioned in studies of the impact of a legal ban on
replacements during a dispute. All of the research has concluded that violence is
escalated by the presence of replacement workers.(28) The study by the
Department of Labour of Quebec argues, for its part, that legislation helps to
improve the labour relations climate during a dispute.(29)
In light of these observations on violence, I am obliged to conclude that a legal
ban on the use of replacement workers helps to establish and maintain civilized
bargaining.
Studies do not allow me to draw a satisfactory conclusion when it comes to
determining whether a ban on the use of replacements pushes wages upward.
The same is not true, however, about the issue of whether a ban has an impact on
employment. A recent study indicates that a negative impact can be observed.
(30) Nevertheless, this study does not allow a comparison of the issues negotiated
in the firms studied. It is thus impossible to know whether the introduction of new
technology may have also had an impact, or any other explanation of a similar
nature.
In the final analysis, it is abundantly clear that these various analytical factors
must be considered very cautiously when deciding whether or not to introduce
replacement worker legislation. Those factors have a negligible impact on the
ultimate objective of the internal consistency of the system.
Proposed Legal Prohibition
Based on a general assessment of this analysis, it is my opinion that replacement
workers have no place in a dispute because of the general effect of their
presence. I would go even further. I feel that the Government should favour a firm
statement that this practice is illegal.
Such an important question undoubtedly warrants a detailed examination of the
general objective and the most appropriate means of attaining it. The context of
my minority report does not enable me to make such an examination. I
nevertheless feel it necessary to make a few observations, first, on the meaning
and scope of the legal prohibition that should be enacted and, second, on the
preferred vehicle for guaranteeing the effectiveness of such legislation.
The meaning and scope of the prohibition
From the outset, there is one basic fact of the dispute dynamic of our collective
bargaining system that should be stressed. There is no basis for arguing that an
employer must stop operating its business if it can be continued by legitimate
means. To this extent, the objective of prohibiting the use of replacement workers
cannot be to prevent the business from carrying on its activities. Essentially, the
goal is to prevent upsetting the balance of power as it exists when the bargaining
dispute begins. For this reason the prohibition period should run from the start of
the bargaining process and last until a collective agreement is concluded or the
union is decertified.
Following the logic of the premise that I have just defined, the employer cannot be
prevented from subcontracting work. It must be remembered here that one way of
preserving the internal cohesion of the system is to maintain not only the
economic balance of power in the workplace, but also the ability of the parties to
the dispute to ensure their economic survival. This option that contracting-out
gives the employer thus becomes crucial, just as the ability to find work
elsewhere during the dispute becomes crucial to the employee.
Part I of the Canada Labour Code contains provisions setting out the union's rights
where a business is the subject of certain legal transactions, for example, where it
is sold.(31) Some might argue that the new legal prohibition would apply to subcontractors. In order to avoid long and costly debates in the future in the case
law, the legislation should clearly indicate that the employer retains this
prerogative.
The Code distinguishes between workers that can unionize (employees) and
management personnel that cannot unionize. The prohibition should apply only to
the first group and cover the employees already employed and the persons whom
the employer hires as employees. More specifically, the aim is to avoid
introducing any employees into the workplace to replace employees engaged in a
strike or a lockout.
To ensure compliance with the meaning and scope of the prohibition, the
employees should not be allowed to request or accept a transfer to other work
sites in the establishment or elsewhere. These same employees and the
bargaining agent should be prohibited from competing with their employer in the
sector of activity directly related to the dispute.
With regard to management personnel, the employer should retain the
prerogative to use their services. Nevertheless, these personnel should have been
working at the work site before bargaining began.
Any other person should be subject to this prohibition, except where this person
sits on a representative body of the employer, such as the board of directors.
Such a person could be allowed to work provided that he or she sits on this body
as a representative of the employer and not of the employees.
Exemptions
An employer could be allowed to use replacement personnel in two exceptional
circumstances.
One exception concerns situations where the union does not fulfil its obligation to
maintain essential services, where there are such services. The employer should
be allowed to put in place the personnel required to provide these services by
exercising the appropriate recourse.
In the course of a dispute, certain maintenance or repairs may be necessary to
keep the work site or equipment in working order. It is in the interest of both the
business and the employees that this matter be given priority so that when there
is a return to work, the business can resume its operations as quickly, efficiently
and effectively as possible. Should the union fail to reach agreement with the
employer on this matter, the legislation should provide for an alternative means of
enabling the employer to ensure that its equipment does not deteriorate.
Complaints
The enactment of legislation is no guarantee that it will be obeyed. To ensure
prompt and effective enforcement of the prohibition and its exemptions where a
contravention occurs, the task of intervening in these circumstances should be
entrusted to the Canada Labour Relations Board. There should be a procedure
whereby a contravention can be referred to and acted on by this body on an
expedited basis. The Board should have the power to issue orders necessary to
maintain and restore respective rights.
Towards a Balance
Parliament has a duty to restore the delicate balance necessary to ensure that the
collective bargaining system achieves its purpose. The presence of replacement
workers is an intrusion into an economic dispute that takes place in the
workplace, in accordance with a public policy designed to promote industrial
democracy. This policy is negated by replacement workers. The labour dispute is
no longer two sided but three-sided. Thus, with respect for the opinions of my
fellow Task Force members, I submit that a legal prohibition against the use of
replacement workers should be enacted, based on the general principles that I
have outlined. In light of the other observations and recommendations in our
report, I am unable to come to any other conclusion.
3 R.S.C. (1985), C.L-2, s.50 and 89.
4 Note 3, s.36(1)a and 37.
5 Radio CHNC Ltée, (1985) 63 di 26; General Aviation Services Ltd. (1982) 51 di
71; Maritime Employers' Association, (1986) 68 di 48; Brewster Transport Co.,
(1986) 66 di 1.
6 Note 3, s.24(3) and 38(5).
7 Royal Oak Mines Inc., (1993) di 153., Nolisair International Inc. (Nationair
Canada), (1992) 90 di 144; CJMS Radio Montréal (Québec) Ltée, (1978) 33 di 393.
8 J. Kennan, «Pareto Optimal and the Economics of Strike Duration» (1980), 1
Journal of Labour Research 77; M. Reder and G. Newman, «Conflict and Contract:
the Case of Strikes» (1980), 88 Journal of Political Economy 867.
9 P. Crampton, M. Gunderson and J. Tracy, The Effect of Collective Bargaining
Legislation on Strikes and Wages, mimeo, University of Maryland, June 9, 1994, at
p. 11.
10 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982
[Schedule B to the Canada Act 1982 (1982, U.K., c. 11)], section 2.
11 R.W.D.S.U. v. Saskatchewan, [1987] 1 S.C.R. 460; Public Service Alliance of
Canada and Attorney General of Manitoba, [1987] 1 S.C.R. 424; Re Public Service
Employee Relations Act (Alb.), [1987] 1 S.C.R. 313; Professional Institute of the
Public Service of Canada v. Northwest Territories, Department Store Union, Local
580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573.
12 Department Store Union, Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R.
573.
13 Note 7 14 Royal Oak Mines Inc. Note 7; Nolisair International Inc. (Nationair
Canada), note 7; Eastern Provincial Airways Ltd. (1983), 54 di 172; General
Aviation Services Ltd., note 5; CJMS Radio Montréal (Québec) Ltée (1978), 33 di
393.
15 Slaight Communications v. Davidson, [1989] 1 S.C.R. 1038 at 1055.
16 Note 3, s.3(2).
17 See cases at note 14.
18 Note 9, p. 12 19 Note 8; J.W. Budd, Canadian Strike Replacement Legislation
and Collective Bargaining: Lessons for the United States, August 1933, mimeo,
University of Minnesota. M. Gunderson, J. Kervin and F. Reid, The Effect of Labour
Relations Legislation on Strike Incidence (1989) 22 Canadian Journal of Economics
779.
20 P. Crampton, M. Gunderson and J. Tracy, note 9. J.W. Budd, note 19. M.
Gunderson and A. Melino, The Effects of Public Policy on Strike Duration, (1990) 8
Canadian Journal of Economics 295.
21 Note 9, p.11. See also Gunderson, notes 19 and 20.
22 Id., p. 13.
23 J.W. Budd, note 19, p. 15.
24 Id, p. 17.
25 L. Garant, Les briseurs de grève et le Code du travail, Études et recherches,
C.R.S.M.T., Québec, 1983.
26 Les dispositions anti-briseurs de grève: 1978-1989, Le Marché du travail, août
1991, 6.
27 Replacement of Striking Workers during Work Stoppages in 1991, April 1992,
Industrial Relations Division - Office of Collective Bargaining Information, Toronto,
mimeo.
28 Note 9, p. 12.
29 Note 26, p. 85.
30 J.W. Budd, The Effects of Strike Replacement Legislation on Employment,
Working Paper Series, Industrial Relations Center, Dec. 1995, no. 95-04.
31 Note 3, s. 44 to 46.
Chapter 10
Essential Services
•
•
•
•
•
The Right to Strike and to Lockout
Maintaining Essential Services
Public Interest Disputes
Interest Arbitration and Final Offer Selection
Frequent Use of Back-to-Work Legislation
In this chapter, we address some of the most difficult questions about federal
labour relations. While strikes and lockouts arise from disputes between labour
and management, they can also cause harm to others. This can range from minor
inconveniences to economic loss to, in a few cases, danger to the health or safety
of the public.
While the present Code contains many methods to encourage settlement, the
government has relied upon specific back-to-work legislation to deal with disputes
judged unduly injurious to the broader public interest.
Addressing these issues involves some basic choices. It is possible to design a
highly interventionist system that allows the government easily to end a dispute.
However, this approach involves imposing a settlement on the parties either
directly or through some form of arbitration, and imposed settlements often fail to
solve underlying problems.
The federal jurisdiction is unlike provincial jurisdiction. Except in Yukon and the
Northwest Territories, and perhaps increasingly in First Nations communities, there
are few police, fire and hospital bargaining units where the issue of essential
services arises most directly. However, because federal infrastructure industries
provide the major threads of our national economic and social fabric, the potential
for disputes that affect the public interest is high.
There are four questions which must be addressed:
• Are there some bargaining units whose very nature suggests a prohibition
on any right to strike or lockout?
• Are there certain activities within bargaining units, where although the right
to strike or lockout should remain, there needs to be a way of maintaining
some essential services?
• Is the present use of dispute-specific back-to-work legislation the best way
to deal with disputes that unduly impact the broad public interest, or are
there better techniques?
• Are there some industries where we so regularly legislate the parties back to
work that the right to strike or lockout is meaningless and, if so, is there an
alternate solution?
We deal with each of these questions in turn.
The Right to Strike and to Lockout
We begin by asking whether, for any group or activity in the federal sector, it is
intrinsically inappropriate for the parties to maintain the right to strike or lockout.
No such designation has been included in the Code to date.
Divestitures and privatization are shifting some federal public sector activities,
where the right to strike was either restricted or non-existent under the Code.
Examples include airport firefighting and potentially, air traffic control. However,
there are provincial examples where the right to strike and to lockout exists in
similar sectors. Police services are being developed in some First Nations
communities, as are firefighting services in the North. For police, there are usually
some options available for maintaining services during a work stoppage. Northern
services have not, as yet, caused sufficient difficulties to justify an absolute ban
on strike or lockout action.
Significantly, we received no submissions urging a complete ban on the right to
strike or lockout based on any threat to health or safety (we deal with the
economic harm arguments later). Consequently, we can find no circumstances
under the Code that would necessitate the imposition of a total ban on strike or
lockout action.
Maintaining Essential Services
The question of whether legislation is needed to maintain services during a work
stoppage is closely linked to the question of replacement workers. Any prohibition
on managers or others from performing struck work restricts the ability to
maintain essential services. We rejected any proposals that would have
introduced such a restriction when we dealt with replacement workers.
Management will therefore be able to maintain its equipment or physical plant
during a dispute. It will also usually be able to deploy its managerial or other nonbargaining unit employees, if necessary, to maintain some essential services.
From our own experience, and confirmed by the submissions of many parties,
unions and management often agree voluntarily to maintain services that are
truly essential to public health and safety. For example, postal workers have
offered to deliver income security cheques and airline personnel have been willing
to service emergency medical responses to remote areas during otherwise bitter
labour disputes. This is not just altruism; it is generally counter-productive to
withdraw these services because of the public backlash that it creates.
Quebec and British Columbia have statutory schemes to deal with the protection
of the public interest through the maintenance of essential services, but both
provinces also ban the use of replacement workers. In Quebec, the Essential
Services Council administers the legislative provisions by monitoring, mediating
and adjudicating questions of whether a strike affecting a public service could
endanger public health and safety. In British Columbia, the provincial board can
designate essential services that are deemed necessary to prevent immediate
and serious danger to the health, safety and welfare of residents in the event of a
strike or lockout. Neither statute recognizes economic impact as a criterion for the
designation of essential services. While economic impact remains significant,
economic interests can be protected in other ways.
The right to use managerial or other workers does not necessarily mean that the
public's interests can or will always be protected during an industrial dispute.
Employers, with a right to use such people, may still choose not to do so. In
addition, some services, which could impact public health and safety, are
provided by highly skilled personnel who cannot easily be replaced.
The parties cannot always be relied upon to keep the public's interest foremost
during a dispute. The Code should contain a mechanism for ensuring that
activities that are truly essential to public health and safety are maintained in the
event of a work stoppage. We believe that this issue only arises in a small
proportion of bargaining relationships. Examples might include firefighting or
northern hospitals. It is not necessary to have an essential services scheme to
cover all bargaining units.
The Governor in Council should have the power, by regulation, to designate those
specific bargaining units where there is a need to maintain some essential
services in the event of a strike or lockout. It is only to the group thus designated
by regulation that the following recommendations apply.
The responsibility for initiating the protection of essential services in the public
interest should lie with the Minister. The Code should still encourage the parties to
decide themselves what, if any, levels of services and activities need to be
maintained during a work stoppage. If they cannot agree, or if their agreement is
inadequate, then the Minister alone should have the ability to refer the question
to the CLRB for an expeditious decision. Such a reference should not necessarily
hold up the right to strike or lockout. The Board should have the power, if the
Minister makes a reference, to make an essential service order, including an
interim order if necessary, to keep essential activities going during a work
stoppage in a designated bargaining unit.
The process would work as follows. In designated relationships, the parties would
try to agree themselves on how to maintain essential services. Intervention would
only take place if they failed to agree or make adequate provision. In filing a
notice of dispute, parties to designated bargaining units would have to include the
scope of their agreement (even if it only said no services were essential) or else
give notice that they could not agree. The Minister would then have the option to
apply to the Board for a designation order if there was no agreement or if the
agreement proved inadequate.
Agreements, once made, would be enforceable. Only the Minister should be able
to refer an issue to the CLRB, not the parties. CLRB proceedings should be
expeditious. The availability of interim orders should make it unnecessary to hold
up any strike or lockout pending a final determination. Essential services, if
ordered or agreed upon, should be performed by bargaining unit members. They
should work under the terms and conditions of employment in place before the
work stoppage and be covered by the resulting collective agreement.While this
scheme may appear to be interventionist, it is aimed at exactly the opposite
result. It maximizes the parties' freedom to resolve disputes through strikes and
lockouts, while still maintaining essential services during work stoppages. It gives
the parties the opportunity to agree upon the level and nature of services to be
maintained and reduces the pressure for greater intervention.
Recommendations:
• There should be no designation of any specific activities as
essential services in the Code;
• The Governor in Council, by regulation, should have the power to
designate bargaining units to which the following essential service
provisions may apply:
• Parties in designated units should have the opportunity to make a
binding agreement to maintain essential services;
• The Minister (and not the parties) may at any time refer to the
CLRB the issue of whether a potential or ongoing work stoppage
poses a danger to public health or safety;
• Upon a Ministerial referral, the CLRB must decide, on an expedited
basis, what activities or level of services, if any, should be
maintained during a work stoppage in order to protect public
health or safety, taking into account any agreement made between
the parties;
• Essential activity or service agreements or orders should be drafted
in such a way that the functions and level of staffing are specified.
Allowances should be made for unanticipated contingencies
requiring an emergency response by striking or locked out
employees.
Public Interest Disputes
Some disputes, because of their nature and duration, can have such a
tremendous impact, that a special public interest develops in their resolution.
Disputes in the transportation and grain industries are frequently cited as having
this potential. Recent experience has shown that governments have been
prepared to intervene rapidly in some of these disputes, in order to lessen or
eliminate the impact on third parties or the public at large (See Tables 8.1 and
8.2).
Unfortunately, however, the decision to intervene in collective bargaining appears
to increase the chance that intervention will be needed again. Why is this the
case? First, the issues that make finding a settlement difficult and which prompted
the industrial work stoppage often remain unresolved and fester when a strike or
lockout is terminated by an external force. This is frequently the case when the
issues on the bargaining table involve reorganization or restructuring initiatives,
or where major wage inequities have developed within an industry.
Further, Parliament's willingness to intervene quickly in certain types of disputes
has fostered an expectation or culture that assumes that no strike or lockout will
be allowed to go on for any significant period of time. Unions members lose their
fear about being on picket lines for extended periods, and employers lose their
fear of long term loss of revenue or market share. Strikes or lockouts then lose
their influence or incentive to induce a settlement.
Both labour and management candidly acknowledge that because of this
situation, they withhold compromise until after government intervention. Their
true strategy becomes to position themselves for the inevitable interest
arbitration process that will be imposed. In other words, in sectors where
Parliamentary intervention is expected, little real collective bargaining occurs.
This process is not conducive to settlement.
There are some particularly sensitive areas in labour relations in the federal
jurisdiction. Grain is a good example. It is a politically high profile industry
because it affects so many people. Producers say that in this highly competitive
industry our Canadian reputation for reliable delivery is vital to our export
position. But efficient industrial practices in grain handling and the price of labour
are also important to our competitive position. If an employer uses a lockout to
obtain lower unit costs from its workforce, should this be blocked by legislation in
order to protect our reputation for reliability? A reliable but overpriced source of
grain may be even less attractive to our customers. There are no easy answers to
such questions.
These issues become more complex when both labour and management know
that the public will pressure for legislation to end stoppages involving grain. This
leads both labour and management to try to keep grain tied into their dispute if
they want back-to-work legislation. Often either labour and management will want
such legislation, because they think that they will gain more, or give up less, with
arbitration than with free collective bargaining. The parties, by posturing in this
way, avoid their responsibilities to resolve their own disputes directly without
endangering a major industry in the process.
While Parliament has an important responsibility to protect the public interest, it is
susceptible to influences from particular constituencies. The public or particular
interests may be pressuring for a quick settlement because of their own
legitimate needs. The economic impact may be tremendous. But they may not be
in a position to appreciate the inadequacies of an imposed settlement mechanism
to bring an enduring resolution to the dispute. They may also not be able to
foresee the advantages of allowing the dispute to feel the competitive pressures
that dictate realism. Further, the likelihood exists that the outstanding issues will
resurface in the next round of bargaining or plague the administration of the
collective agreement.
These concepts were recognized in the Report of the Industrial Inquiry
Commission into Industrial Relations at West Coast Ports (pages 171-172).
However, the West Coast Ports Inquiry recommended, among other things, that
the solution lies in the introduction of standing legislation which would permit the
Minister, acting on the advice of his or her professional staff, to order the
suspension of a strike or lockout, a resumption of operations, and a method by
which the dispute will be solved:
• In order to provide protection to the economy and to the interests of the
public and third parties all of whom can be affected greatly by a labour
dispute at West Coast Ports the Commission recommends an Act of
Parliament be passed to provide that when the Minister (Minister of Labour)
is of the opinion that a strike or lockout or a threatened strike or lockout
poses an immediate and substantial threat to the economy or to the
national interest, the Minister may intervene in the dispute by imposing one
or more of the following on the parties ...[the options are then listed].
We are concerned that such a solution only substitutes Ministerial for
Parliamentary intervention. This will encourage the parties to rely upon an even
greater likelihood of intervention. It makes intervention easier and more
predictable because Parliament would not have to be recalled, legislation would
not have to be prepared, and the Cabinet would not first have to be convinced of
the appropriateness of the intervention. Any advantage of public debate would be
lost. Despite its apparent efficiency, we do not see how such a process would
foster settlements or ensure the enduring resolution of disputes.
Management and labour both voiced strong opposition to this proposal to allow
direct Ministerial action. Both saw the increased level of intervention implicit in
the recommendation as counter-productive in the longer term. The consensus
group categorically rejected the notion of the Minister having such broad,
sweeping interventionist powers.
Despite our observations, we fully recognize that intervention sometimes
becomes necessary and must remain an option. Specific legislation is the best
method of taking that intervention. It would help, however, if the Minister had a
better and more visible ability to monitor the potential for public harm as the
dispute unfolds. The parties also would benefit from the ability to have input into
how the dispute should be resolved. This would help make the resulting collective
agreement more palatable. To this end we are recommending that the Minister be
given statutory authority to appoint a panel of up to three advisors with the
specific responsibility for monitoring and advising on the public interest in any
dispute where the Minister thinks it is advisable.
We do not see these panels trying to settle the disputes or being involved in
mediation. Their task would be to consider the impact of the dispute on the broad
public interest, including affected third parties, the economy and the public at
large. They would also consider the longer term harm that intervention might
cause, but only as one factor in the overall public interest. These panels could
weigh all of the interests, balancing the narrow partisan interests and factoring in
and reporting on the broader but less publicized impacts as well.
The appointment of Public Interest Panels for some disputes will give the Minister
the benefit of considered advice and satisfy the legitimate and important
objective of being seen to balance the public interest with the Code's stated
purpose of fostering collective bargaining. This should also reduce the appearance
of unjustified interference in free collective bargaining.
Parliament always remains free to legislate. However, we recommend that any
time legislation may be contemplated, the Minister of Labour appoint a Public
Interest Panel sufficiently early to allow the Panel to provide advice to the
Minister, and through the Minister to Parliament, about whether intervention is
needed, and if so, what, when and why such intervention is justified to protect the
public interest.
Recommendations:
• The Minister of Labour should have the ability to appoint a Public
Interest Panel on an ad hoc basis for any dispute involving
significant public interest or impact.
• The Panel could be appointed at any time after the notice to
bargain has been served.
• The Public Interest Panel should report directly to the Minister.
• The Public Interest Panel may make any reports or
recommendations public:
• advising whether there is a likelihood of the parties being able to
achieve a resolution in the foreseeable future and what form of
assistance ought to be offered to help achieve a settlement;
• assessing the benefits and risks of allowing the strike or lockout to
continue having regard to
• a) the potential for resolving the underlying reasons for the
dispute
• b) the needs of the parties
• c) the impact of the strike or lockout upon the public and
affected third party interests
• d) whether the continuance of the strike or lockout puts in
danger the safety of individuals or property;
• advising the Minister when and if it is appropriate to
intervene in a dispute with legislative action and what form of
action that intervention should take, having regard to the
circumstances of the dispute, the history of the bargaining
relationship, and the interests of the public.
Interest Arbitration and Final Offer Selection
We must also answer the question - Is there a better way? Could the right to strike
or lockout simply be banned and be replaced with a form of final and binding
arbitration? Legally this could be done, although the risk of illegal job action
remains. However, we do not believe that this is a satisfactory long-term solution.
Australia regularly used arbitration as a substitute for free collective bargaining
but found it to be unsatisfactory; it is now moving towards a system more like our
own.
Interest arbitration, in its most desirable form, should be an extension of the
collective bargaining process since it provides resolutions to issues that the
parties could not agree upon. It relies on the arbitrator's ability to sort out the key
issues, and discard those that would have been eliminated in the collective
bargaining process. It also depends on the arbitrator to make reasonable
decisions about the key issues and to fashion an agreement around what
reasonably could have been achieved had bargaining continued until an
agreement was reached.
Conventional interest arbitration processes provide the arbitrator or arbitration
board with information about the importance of each issue, a clear picture of the
differences between the parties, and perhaps a pathway to an award which
represents a compromise for each of the parties. This can create protracted
hearings and lengthy delays before the award is issued. The award is that of the
arbitration board and the parties have no real sense of ownership. The award is a
package, fashioned from the submissions and positions of the parties. Often, both
sides come away from the process believing that they lost, or at least, did not win
enough. This is particularly true of employees or employers involved in multiemployer bargaining, where they feel they had little say in the end result.
The most serious criticism of conventional interest arbitration is the so called
"chilling effect" on collective bargaining. The parties recognize that they can take
positions and hold them because there is no advantage to compromise. In effect,
they structure the anticipated outcome of the arbitration by refusing to
compromise on issues during bargaining. The theory, put crudely, is that, if
arbitration is going to come down somewhere in the middle, then they agree to as
little as possible so that "the middle" is closer to their position.
This criticism leads many to advocate a different form of arbitration called final
offer selection (FOS). This is a process that continues to attract interest. The
simplest model of FOS would see each party put an offer to the "selector" which
would resolve all the outstanding issues on the bargaining table. The selector
chooses either the employer's offer or the union's offer and it becomes the final
award. There are many variations on this model. But all basically come to the
same point - the selector must choose the proposal of one or the other. There is
no ability to construct a compromise or to re-fashion proposals. Thus FOS, by
design, abandons the approach of trying to replicate the settlement that would
have been reached at the bargaining table in the hope that a win/lose result will
induce reasonable final positions.
Selecting one offer creates a "winner" and a "loser". When FOS is part of a backto-work package, the negative atmosphere which led to job action in the first
place is reinforced by polarization and a "winner take all" resolution. In
conventional interest arbitration involving multiple issue disputes, the panel,
through its award, can try to bridge the gap between the parties. That is an option
which is not available to the FOS selector.
The "winner" and "loser" approach becomes more acute when the issues
separating the parties involve radical changes to work rules rather than money, a
much more frequent occurrence recently. It is often impossible to offer part of a
new work structure. The logic that FOS forces each side to minimize its demands
simply fails to work effectively when the issues include complex work rules,
seniority, pension or job security plans or similar difficulties.
A single issue dispute may be ideally suited to FOS. Several of those who
advocated this approach appeared to assume that money, or proposals easily
reducible to money, were inevitably the issues involved in labour relations. That
view is outdated. Collective bargaining, in an increasingly competitive economy,
generates many complex issues not easily amenable to win or lose answers.
Applying FOS to such complex matters forces one side to say "yes" to a major
change and the other side to say "no". If "yes" is imposed, employees feel that
they have lost everything and may be unwilling to buy into the change being
forced upon them, which in itself may doom the chances for real success. If the
answer is "no", an employer may be unable to introduce change, perhaps
realistically needed to meet competition, for the full term of the collective
agreement. It is this effect that leads some to describe FOS as "the one armed
bandit of labour relations".
In our view neither conventional arbitration nor FOS offers an attractive substitute
for free collective bargaining. If arbitration is used, except in essentially simple
issue disputes, consensual arbitration is probably the best alternative, particularly
if it includes an ability to mediate as well as arbitrate.
What then is our solution for protecting the public interest? There are no magic
solutions. We have, throughout our report, particularly with respect to multiemployer bargaining and the reform of the bargaining cycle, suggested ways to
increase the percentage of disputes that settle without work stoppages.
Part of the solution is already in place, but through reduced regulation and
increased competition. This, more than anything else, is providing third parties
with alternate sources of delivery and supply and in turn giving labour and
management new incentives to settle. The number and severity of stoppages has
come down drastically because of these developments.
We see the imposition of binding arbitration, particularly on multi-employer or
broad based bargaining, as a step backwards that will impede change in some
industries, rather than encourage parties to work through that change
collaboratively.
While we recognize that the public interest sometimes requires intervention, we
are not convinced that mandatory or ad hoc Ministerial imposition of either
conventional or final offer selection arbitration provides the answer. Instead, we
believe ad hoc legislation, with its flexibility to design a dispute resolution
mechanism to fit a particular situation, continues to offer the best approach when
needed, supplemented by the advice of Public Interest Panels.
Frequent Use of Back-to-Work Legislation
Some disputes so frequently attract back-to-work legislation that there is in fact
no real right to strike or lockout. Principles aside, is it better that arbitration be
substituted to save the bother? As attractive as this seems, we are not convinced
that this solution should be imposed. Despite some stoppages, many solutions are
being found through collective bargaining even in the most adversarial
relationships. Mandatory arbitration would cause much harm to this process by
removing the incentive to bargain.
We do think the statute should make it clear that parties are free to say, in their
collective agreement, or in a supplementary agreement negotiated during
bargaining, that they will voluntarily submit their disputes to arbitration and forgo
their right to strike or lockout. Beyond that, we see mandatory arbitration and
removal of the right to strike or lock-out as over regulation. It is a process that
makes decisive change hard to achieve. In any event, it is not a guarantee against
illegal work stoppages which can still occur and sometimes force additional
concessions or prevent arbitration terms from being fully implemented.
Free collective bargaining remains the best solution in the long-run in a free
enterprise economy where parties need to negotiate changes.
Recommendation:
The Code should contain a section allowing parties to agree to submit a
collective bargaining dispute to any form of final and binding arbitration
and by so doing forgo the right to strike or lockout. Such agreement
could be within a collective agreement or in a separate document.
SECTION I I I
Administering the Code
Management and labour run labour relations, not government. The government's
role involves planning, legislating, facilitating, monitoring and providing regulatory
and adjudicative services. Part I of the Canada Labour Code is one tool in
Canada's administration of federal labour policy. Different roles need to be carried
out to give effect to the Code. This chapter is about how those roles should be
distributed between the parties, the Minister as head of the government
department, adjudicators like the CLRB, and mediators and conciliators like FMCS.
In an ideal world, laws are written simply to codify societal values and there is no
need for enforcement or administration of those laws. But in the real world, laws
are avoided or broken, especially if enforcement is inadequate or remedies
unavailable. A labour code is no different. It is written to reflect the expectations
and norms of acceptable conduct for labour and management. But it goes further.
It ensures that there are processes to monitor collective bargaining activities, to
prevent disputes and provide dispute resolution mechanisms.
The Canada Labour Code, Part I, is administered by several interconnected, yet
separate bodies. The division of responsibility is designed to foster a culture of
dispute resolution, but to leave dispute management with the parties wherever
possible.
The Canada Labour Code is administered by:
• The Minister of Labour - the authority with responsibility for the statute
The Minister of Labour takes overall responsibility for the Code and for
providing the facilities necessary to put it into effect. Ministers of Labour
also advise their Cabinet colleagues on appropriate government policy, a
power especially important when back-to-work legislation is under
consideration.
• The Federal Mediation and Conciliation Service of Human Resources
Development Canada - the mediation, education and monitoring process
The Federal Mediation and Conciliation Service monitors negotiations,
assists the parties through conciliation and provides or promotes education
on more effective dispute resolution techniques. It works directly with the
Minister of Labour, advising on the status of disputes, the appropriate
Parliamentary responses, policy and the administration of Part I of the Code.
• The Canada Labour Relations Board - the adjudicative tribunal
The Board adjudicates complaints of violations of the Code and processes
applications concerning bargaining rights. It is a quasi-judicial administrative
tribunal at arm's length from the Minister vested with specific powers and
duties set out in the Code.
• Arbitrators appointed by Labour and Management
Parties design their own arbitration systems to resolve matters over the
interpretation, administration or violation of their collective agreements
normally using third-party neutrals of their own choosing.
Conceivably, all these functions could be performed by one rather than four
entities. But there are sound policy reasons for separation. There is widespread
satisfaction with the current arbitration process and a desire to keep it within the
parties' control. Further, parties bear the costs of arbitration and nothing justifies
moving that burden to the public.
Some have suggested that the Board and FMCS be combined into a single
administrative agency.British Columbia has adopted this model and it appears to
work well. This model is also the basis for Ontario's School Boards and Teachers
Collective Negotiations Act. The advantages include:
• efficiencies through amalgamation of office and support functions;
• combined monitoring and adjudicative services can assist case
management;
• the parties get a "one stop shopping approach" which may add
convenience;
• better ability to promote settlements because of the availability of skilled
alternative dispute resolution services;
• mediators and adjudicators working in the same environment promotes an
exchange of skills that can reduce undue legalism.
However, it also has disadvantages. Parties expressed serious reservations that a
communication to a conciliator or mediator might find its way to a potential
adjudicator. While acknowledging that ethical codes could be drafted to protect
against such breaches of confidence, there was little faith that separation could
be achieved in practice. Mediation, to be effective, requires that each party feel
able to communicate freely and frankly with the mediator. Adjudicators, on the
other hand, are obliged, for reasons of fundamental fairness, to decide cases
solely on the basis of the facts in front of them. Generally and for the present,
labour and management agree that combining these services would be
inappropriate. The Labour-Management Consensus Group agreed:
LOCATION OF FEDERAL MEDIATION AND CONCILIATION SERVICE
• a clear distinction must remain between mediation/conciliation services and
adjudication services (Board)
• there is a potential conflict of interest in having FMCS and the Board within
the same entity
• FMCS staff should be experienced in labour relations and independent from
political interference
Contrary to this, the West Coast Ports Industrial Inquiry Commission
recommended:
• To better ensure its professional independence, that the Federal Mediation
and Conciliation Service (FMCS) be brought under the auspices of the
Canada Labour Relations Board and be headed by an associate chair of that
board. The Commission recommends the conciliation process contained in
Division V (sections 71 to 79 and sections 81 to 83 of the Code) be
administered by a restructured CLRB.
We seriously considered the idea of combining the FMCS with the Board, because
of the advantages listed above. We have great respect for the concepts behind
that recommendation.
However, many of these advantages can be obtained by techniques other than
merging the two organizations. Our consultations across the country made it
abundantly clear that the concept of combining FMCS with the Board has no
chance for success unless there is a high level of community acceptance and
trust. Mediation and conciliation must be conducted in an atmosphere where the
parties have complete faith that the neutral third party will treat all
communications as confidential and that nothing that is said can be used against
them in subsequent proceedings.
We do not conclude that it is a bad idea to combine the FMCS and the Board. On
the contrary, the time may come in the federal sector when the level of trust and
respect for the two agencies evolves to allow this to happen naturally. But it is an
idea whose time has not yet come.
Turning to the role of the Minister and the department of government responsible
for the Canada Labour Code, we agree with the view of both management and
labour that it is indeed important to have a Minister with specific responsibility for
labour. This relates less to the allocation of functions to government departments
than to the Minister's role with the parties and within the government. Labour
issues may not emerge every day; but when they do, they can be fast moving, of
major public importance and demand considerable insight.
The Minister's role is analogous to the role of the Attorney-General in the
administration of justice. In administering the Code, the Minister needs to
maintain a basic neutrality with the parties to any dispute, if only because such
disputes change over time.
Industrial disputes involve strong pressures, and short term issues can easily
overwhelm longer term interests. Ministers of Labour often must weigh the
concerns of colleagues who have departments or constituents seeking an end to a
dispute at any cost, against an informed and astute judgment about the labour
relations forces at play and the longer term consequences of any proposed action.
Ministers of Labour also need to maintain the ability to communicate with all the
players in a dispute, something almost impossible without a stance of neutrality.
All this makes it vital that a Minister of Labour have a direct and clear ability to
communicate with the head of the agency charged with monitoring and
conciliating disputes. No matter how FMCS is structured, this direct relationship is
critical and needs to be based on trust, frankness and confidentiality where
necessary.
The Minister's role with adjudicative bodies is quite different. The decision-making
process must be at arm's length because the role is quasi-judicial. The Minister
has overall responsibility for the operation of the CLRB, but no role in individual
decision-making. It is important that administrative tribunals know, in a general
sense, the performance standards expected of them in terms of their use of
resources, efficiency and public credibility. However, this must all be done while
respecting their statutory independence.
The statute allocates a number of essentially administrative tasks to the Minister.
Currently, the Code requires the Minister to: appoint arbitrators or arbitration
board chairs (section 57(5)); receive copies of arbitration awards (section 59);
receive notices of dispute (section 71); appoint conciliation officers, conciliation
commissioners, conciliation boards (section 72); receive conciliation reports and
decide upon the next stage in the conciliation process (section 74); refer first
contract disputes to the Board (section 80); appoint mediators (section 105); and
direct a vote to be held by the employees in the bargaining unit on the employer's
last offer (section 108.1(1)).
In practice, many of the statutory duties are delegated to the Federal Mediation
and Conciliation Service. In our view, these are all basically administrative
functions that are best performed directly in the name of the Head of FMCS.
This would serve to reduce the delays inherent in direct ministerial action. An
alternative mechanism would be to continue to vest the power in the Minister, but
allow statutory delegation to the Head of FMCS of some or all of these functions.
In one case, we believe the requirement of Ministerial consent should simply be
removed. That is the section 97(3) requirement for consent to file certain unfair
labour practice complaints. These involve alleged violations of the duty to bargain
in good faith under section 50 and a couple of other related sections. The time
needed to process Ministerial consent can hinder collective bargaining efforts.
This is especially true in the "bad faith bargaining" allegations where speedy
access to a Board hearing is often necessary to break a stalemate in negotiations.
Therefore, we recommend removing this requirement for Ministerial consent.
Recommendations:
The Minister's current powers under sections 57(5), 59, 71, 72 to 82, 105
and 108.1(1) should be vested with (or amenable to delegation to) the
Head of FMCS.
The section 97(3) requirement for Ministerial consent to file complaints
to the Board should be repealed.
Throughout our work, we have been struck by two things. First, there is, at
present, a sense of disconnectedness felt by the parties over the administration of
Part I of the Code, particularly in relation to the Canada Labour Relation Board.
Perhaps some of this is inevitable in a country as large as Canada. But our history
is one of building bridges to overcome distance. Second, Canada has a
sophisticated community of labour relations practitioners in trade unions, in
management and in neutral institutions like labour-management institutes and
universities. As was demonstrated in our consultations, this community is willing
and anxious to work in partnership with government to improve our labour
relations processes.
We believe it would be foolish to waste the energy and willingness to collaborate
that now exists. In the following chapter, we recommend that an Advisory
Committee on Labour Relations be created to give stakeholders in the federal
sector a vehicle for comment on the administration of the Code and the
development of labour policy.
We expect that such a Committee would provide the Minister with a source of
important advice and high level feedback on the administration of Part I of the
Code. The work of this Committee could itself be a way of fostering labourmanagement understanding.
In the other chapters in this Section, we give detailed recommendations about the
CLRB, FMCS and arbitration, and elaborate on the role that could be played by the
proposed Advisory Committee on Labour Relations.
Chapter 12
The Structure of the
Canada Labour Relations
Board
• The Present Structure and Organization of the Canada Labour Relations
Board
• Restructuring the Board
An impartial, experienced and efficient labour relations board is essential to the
success of any labour relations code. To ensure the effective and efficient
administration of the Canada Labour Code, Part I, our mandate required us to:
• review the structure of the Canada Labour Relations Board to ensure that it
reflects the needs of the industrial relations community it serves;
• review the powers of the Board with a view to ensuring that applications can
be dealt with in a timely and cost effective manner and that available
remedies are appropriate and sufficient to allow the objectives of the
legislation to be met.
Labour boards serve several functions. They perform the "returning officer"
function for the majority support system that determines certifications and
decertifications. They are the quasi-judicial bodies that adjudicate, and thus give
effect to the rules of conduct that govern labour and management in their
representational and bargaining activities. Through their approach to appropriate
bargaining unit questions, boards do much to mould labour relations structures.
Their decisions provide guidance to the parties as they develop their relationships.
Labour relations structures must be capable of adapting to the many different
workplaces which are evolving over time, each with its own unique features. It is
therefore impractical and undesirable to put too many rules for the conduct of
labour relations directly in the statute. The solution, instead, is to leave much of
the discretionary authority in the hands of an expert tribunal that is able to adapt
to changing circumstances.
Important and consistent rules should have legislative force. Some practices and
procedures are best left for "Board made" rules which, with some safeguards, can
be amended from time to time. Other practices are best handled through
operational policies communicated through informational bulletins. Still other
matters can be decided on a case-by-case basis through the gradual development
of Board jurisprudence. As we suggest various changes, we try to maintain an
appropriate balance between these mechanisms.
Collegiality and Vision
For the legislation to work well, the Canada Labour Relations Board must have a
clear vision of its role and direction. It must also operate in a collegial fashion.
Panels may decide individual cases; but policies and directions must be the result
of a collegial process in which all of the Board participates. No one person alone
can bring sufficient experience to the tribunal. Its strength must come from the
experience of all of its members, with labour and management backgrounds,
representing the various regions, and skilled in labour relations.
The Board must also remain acutely aware of the interests of the public at large
and of the labour relations community it serves. This comes from active
consultation and from being representative. Mostly it comes from the Board's
internal commitment to maintaining and meeting performance standards for the
fairness, timeliness and consistency of its processes.
Responsibility, Accountability and Responsiveness
The Board has a large support staff and other resources that need direction and
management. The Chair is the Board's Chief Executive Officer, with ultimate
responsibility for the Board's budget and personnel. There are currently grey areas
where it is unclear whether the Chair or the Board, acting like a Board of Directors,
can determine the Board's processes. This needs clarification.
Throughout Canada, we heard concerns about the operations of the Board. We
heard no complaints about the quality of decisions or the Board's development of
jurisprudence. This activity is highly respected. However, in many places the
Board was seen as distant and unresponsive, except for the Board's regional
officers who generally received high praise. We heard many complaints about
delays in the Board's processes and in the delivery of its decisions. We heard
many of these same concerns from within the Board itself.
Deeper problems at the Board surfaced publicly during our review. Articles
appeared in the national newspapers. Vice-Chairs and some members refused to
accept assignments under a new scheduling system introduced by the Chair, in an
action some referred to as a strike. Court applications and complaints to the
Canadian Judicial Council were threatened, launched and discussed publicly. We
found the Board to be an organization often paralysed by deep-seated conflicts
that have remained unresolved.
We have not attempted to examine or adjudicate the merits of either side of this
conflict. We do not want our report to be read as favouring one faction or the
other. We have looked beyond and behind the Board's current situation and
contemplated how the Board should be structured and operated so that it will be
accountable, responsive, and responsible to the parties' needs.
Some of the problems with the present Board involve subtle but fundamentally
different views of what the Board should be and how it should be run. These
problems are rooted in the legislated structure of the Board which fails to provide
appropriate checks and balances. Two flaws are central. First, there is no clear
delineation of executive powers within the Board. Second, the appointment
process fails to ensure that Board appointees have the necessary skills,
community respect and experience. We will deal with each of these issues.
Our review of the Board's operations found an absence of mechanisms to ensure
accountability to the community that the Board is designed to serve. We found
many dedicated people working diligently to maintain and improve the quality of
the Board's operations. However, internal conflicts have so consumed the
organization that its institutional sense of purpose seems to have been lost.
There is also an undue emphasis on the "judicial nature" of the Board. There is an
over-reliance upon rules and legal arguments instead of seasoned labour relations
experience. There also seems to be an overly cautious, meticulous approach to
activities, without sufficient concern for timeliness and the impacts of delays.
There is also an institutional culture of deliberate detachment from the
community. In order to maintain the appearance of neutrality and independence,
caution certainly needs to be exercised in dealing with parties who appear before
the Board. But this need for caution should not preclude meaningful consultation
with the labour relations community about the Board's practices, procedures and
performance. There appears to be no concerted effort to build the type of
consultative mechanisms that keep most provincial boards in touch with the
parties they serve. This requires no legislative change. It requires the
development of an institutional culture that welcomes and responds to feedback
and recognizes the paramount importance of the public service of its operations.
Chapter 11
Advisory Committee on
Labour Relations
The submissions and briefs raise the issue of the role of the labour relations
community. There is a legitimate expectation that labour and management should
be involved in matters affecting their affairs. For example, parties indicated their
desire for ministerial consultation prior to legislative change. They expressed a
desire to be consulted about appointments to the CLRB. They volunteered
creative ideas for improving the Code and its administration and a willingness to
keep these ideas flowing if ways could be found for regular input.
We recommend the creation of an Advisory Committee on Labour Relations. We
see it operating as a source of advice and feedback for the Minister and
appropriate departmental officials, FMCS and the Canada Labour Relations Board.
The basic mandate of this consultative body would be to consider issues, seek
consensus and advise on the development of policies to promote healthy,
effective labour relations. We believe this Committee should be established by
and recognized in the legislation. However, its form and dynamism should come
from its members.
The Committee should not involve any significant government expenditures since
we would envisage labour and management covering their respective
participation costs. While the government could provide basic resources to ensure
the functioning of the Committee, possibly including the costs of a neutral
chairperson, we see it very much as a labour and management organization, free
to determine its own methods of operation.
Its stature should rest on two pillars. First, the quality of its members. We envision
labour and management groups each committing to put forward senior individuals
to serve on this Committee, and giving them the time to devote to its activities.
Second, there must be a willingness of those charged with the administration of
Part I of the Code, and with decisions about labour management policy matters, to
give the Committee's views high priority. We see this as a partnership exercise
where labour, management, administrators and policy makers can share views
and discuss concerns and solutions.
We recommend that the Committee be used regularly for some specific tasks. We
recommend elsewhere that appointments of arbitrators be drawn from a standing
list of suitable appointees. The Committee should provide the Head of FMCS with
the input necessary to compile this list and keep it current. We also recommend
that the Committee look regularly at the functioning of the arbitration
mechanisms under the Code. We believe the Committee should be afforded a role
when appointments are made to the Canada Labour Relations Board, albeit on a
confidential basis.
We see considerable value in an annual meeting between the Committee and the
Chair and others from the CLRB, and between the Committee and the Head of
FMCS. In neither case do we envision a discussion of individual cases. Instead, it
would be a valuable opportunity to review the prior year's activities and to discuss
plans for the future. We believe both agencies would benefit greatly from this type
of annual review, which would also provide valuable reactions and insights for the
responsible Minister.
Our expectation is that this Committee might also develop sub-committees or
other processes to deal with issues of concern to the community. The existence of
the Committee is itself a way of encouraging labour-management dialogue at the
highest level. It will not resolve labour relations disputes, but it can encourage
understanding.
To work, this Committee cannot be too large, but it must involve very senior
practitioners from both sides. Its composition must take into account certain
sectoral and geographical variables. For example, Quebec has a certain regional
distinctiveness with its particular structure of employer and trade union central
organizations. To the greatest extent possible, the Committee should reflect the
scope and diversity of labour relations in the federal sector.
RECOMMENDATIONS:
An Advisory Committee on Labour Relations should be created and
operate as a partnership between labour, management and government.
The Committee should be mandated to promote healthy, effective labour
relations and to make useful recommendations on subjects it raises
itself or that are referred to it by the Minister of Labour.
The Committee should annually review the activities of the Canada
Labour Relations Board and the Federal Mediation and Conciliation
Service with the Heads of those agencies.
The Present Structure and Organization of
The Canada Labour Relations Board
The 1972 Canada Labour Code created the Board's present structure, changing it
from a representational to a non-representational board. While it has expanded in
size since 1972, its structure has remained unchanged.
The Board itself consists of a Chair, five Vice-Chairs, and eight members. All are
appointed by the Governor in Council for fixed terms. The Chair and Vice-Chairs
have ten year terms, while members each have five year terms. The Code allows
part-time members but only for Part II (Occupational Health and Safety) matters
and none are currently appointed.
The Board is located in Ottawa, but maintains regional offices in Vancouver,
Toronto, Dartmouth and Montreal. The Winnipeg sub-office is managed from
Vancouver. Hearings are held throughout the country in both official languages.
The Board has a complement of 106, including the members and Chairs on the
Board itself. The organization structure appears at Figure D.
The Operations division is headed by a Director General who oversees the
regional offices and the head office. All offices are involved in processing the
various applications made to the Board and managing the flow of cases. They
attempt to mediate solutions to disputes where possible.
The Regional Directors, the Director General of Operations and the Manager of
Process Administration in Ottawa all serve as Registrars for the Board. Registrars
are senior board officers with special powers under the Board's Rules to process
applications. This division provides support services to the Board panels as they
travel and conduct hearings.
The Head Office in Ottawa has 31 staff positions, while the four Regional offices
and the Winnipeg satellite of the Vancouver office together have 27 staff
positions.
[ASCII TEXT]
The Program Management and Administrative Services Branch has 25 staff
positions. Legal Services provides the Board with counsel and advice, and
represents the Board in applications for judicial review. The branch has a Director
and five staff.
Restructuring the Board
We are recommending a number of changes that will restructure the Canada
Labour Relations Board. The current level of performance is unacceptable to the
community it serves and falls well short of what is possible with the resources at
the Board's disposal. In assessing the future structure of the Board, we weighed
the following priorities:
• Fairness, consistency and quality in decision and policy making
• Timeliness in investigations, scheduling and decision making
• The need for credibility within, and a measure of accountability to, the
labour relations community
• The need for operational efficiency and fiscal prudence
• The difficulties of maintaining a national board in a country as large and
diverse as Canada
• We have divided our recommendations into the following categories:
• Choices about the Board's Structure
• Case Processing and the Role of the Chairperson
• The Appointment and Tenure of Board Members
• Board Relationships with its Community
• Choices about the Board's Structure
• There are several interrelated options that touch on the Board's
membership and structure. They are:
• Neutral versus representational members
• Regional versus Ottawa-based appointments
• Full time versus part time appointments
• Hearings chaired by single persons versus three person panels
We have the benefit of a consensus reached between labour and
management on all of these points. Their views are:
• APPOINTMENT PROCESS TO THE BOARD
• A representational board comprising a neutral Chair and neutral Vice-Chairs,
and equal numbers of members, representative of labour and management.
• REGIONAL AND PART-TIME APPOINTMENTS
• Chair and Vice-Chairs should be appointed on a full time basis and located
in the National Capital Region
• Members, representative of labour and management, should be appointed
in the regions, some on a part-time basis.
• SINGLE NEUTRAL PANEL MEMBERS
• Provision should be made in the statute for the Chair to authorize single
neutral panel members to sit on specified matters, with a residual power for
such panels to be authorized in other cases where prejudice, such as undue
delay makes it appropriate to do so.
Representational versus Non-Representational Board
Since 1972, the Canada Labour Relations Board has been a non-representational
board. That means that all of its members, including the Chair and Vice-Chairs,
have been public appointees with none designated as being representative of
labour or management. In this respect, it is different from virtually every other
labour board in Canada, where representational members are the norm.
This non-representational nature had its origin in the Woods Task Force report. It
was their recommendation that the former tripartite or representational model be
abandoned in favour of a neutral institution. They recognized the following
advantages of a tripartite system:
• the presence of representational members assured parties that their case
would be understood and carefully reviewed
• decisions made with that assurance were generally more acceptable to
labour and management
• given the wide discretion that a Board must exercise, a representative Board
offers a basis for assurance that discretion will be exercised on the basis of
industrial relations experience, and
• discretion involves a measure of compromise, and parties are reassured by
the presence of a friendly viewpoint on the Board making such
compromises.
The Woods Task Force, however, felt that these advantages were outweighed by
the arguments in favour of a neutral Board. Despite that, they made two
important recommendations that were not adopted which would have retained
some of the advantages of tri-partitism. The first was that, for matters like
bargaining unit structure, "_there be a panel of assessors drawn from the
industrial relations field as
representing the interests of labour and management, to which the Board might
turn for advice and opinion on matters relating to certification _" The second was
that there should be a Canadian Industrial Relations Council which should be
involved in the selection procedure for the Board, at least in an advisory capacity.
Had these recommendations been followed, some of the criticisms levelled at the
Board today might have been avoided.
We agree with the consensus achieved by labour and management. We believe
reconstituting the Canada Labour Relations Board as a representational board will
make it more responsive to the community it serves. In making this
recommendation we urge labour and management to put forward nominees of the
highest calibre for appointment. Without that, the advantages of a
representational board will be lost.
Recommendation:
The Canada Labour Relations Board should be reconstituted as a
representational board with members drawn from persons put forward
by and actively involved within labour or management.
Regional versus Ottawa Based Appointments
At present, all Board members must reside in the National Capital Region. This
requirement raises a substantial barrier to some persons who might otherwise be
highly qualified candidates for Board membership. The dislocation of families to
Ottawa for what amounts to a term appointment can make recruitment difficult. It
also means that the members have little day-to-day contact with the regions of
Canada. Further, all out of Ottawa hearings become dependent on travel
arrangements for the Board members. This can be a problem, particularly in
urgent cases. On the other hand, a centralized location gives the Board a Head
Office and allows all members to work together in the same office. This should
promote consistency and collegiality.
We raised the possibility of having at least some regional appointments for both
Vice-Chairs and members. Such Vice-Chairs might be drawn from those
experienced persons who regularly sit as neutral third parties in arbitration or on
other labour relations tribunals. The concern raised most often about this concept
involved the need for consistency. It is very important that the Board's decisionmaking powers be exercised consistently across the country. There is some room
for flexibility to accommodate local styles such as the appropriate degree of
formality, but the Code itself needs uniform application. There are no advantages
in allowing local fiefdoms to develop. These concerns related mostly to ViceChairs, not members.
For the moment, the Board should continue to use full-time Vice-Chairs living in
the National Capital Region. Nonetheless, it is vital that the Board maintain a
presence throughout Canada. The Board can and must improve its visibility and
accessibility and its performance must be monitored. If complaints of delay and
inaccessibility persist, then the government of the day should consider making
regional part-time Vice-Chair appointments to help overcome the problem. To
provide for this, if and when it proves necessary, the Code should be amended to
allow such appointments even though we believe this power should not yet be
exercised.
Recommendation:
For the present, Vice-Chairs should continue to be full- time appointees,
resident in the National Capital Region. However, the Code should be
amended to allow part-time Vice-Chair appointments, without a
residence requirement. Such appointments should not be made unless
the Canada Labour Relations Board continues to experience difficulties
maintaining an effective presence throughout the country.
Full-time versus Part-time Members
Many provincial boards operate with part-time members. This has advantages in
that it is cost-effective, and ensures that the board benefits from the experience
of active labour relations practitioners. It also allows the part-time members to
serve an ambassadorial function, representing the board in the community and
the community within the board.
However, it also suffers from serious disadvantages. Scheduling can be difficult,
particularly for cases that take longer than expected. Training is sometimes weak
and difficult to coordinate. Conflicts or perceived conflicts arise periodically. The
difficulties with part-time membership are accentuated in a Board which must
travel across the country and conduct its business in both official languages.
But the choice is not necessarily all full-time or all part-time members. Parties
expressed understandable reluctance to see a two tier board where some
members had more status than others.
These problems are surmountable. Given our other recommendations, there is a
need for a period of experimentation to determine how many members will be
required. At least some full-time members should be appointed. The government
should begin by making some full-time appointments and some part-time regional
appointments, and then readjust the balance as experience develops. The Board
must be careful to ensure that part-time regional members are afforded equal
status in, and must themselves actively commit to, activities like policy meetings
and training. Part-time regional appointees should, on occasion, sit on cases
outside their own region.
Recommendation:
The reconstituted Board should consist of full-time and part-time
members representative of labour and management, some of whom
should be full-time appointees required to reside in the National Capital
Region.
One or Three Person Panels
At present, almost all of the Board's business is conducted by three person panels,
consisting of a Chair or Vice-Chair and two other persons. The only exceptions to
this are for uncontested matters under section 14(2) and applications concerning
the operation of Part II of the Code.
In many cases, it is unnecessary for three persons to hear the type of cases that
come before the Board. There are other cases where the breadth of knowledge
and the advantages of debate do favour a three person hearing. We considered a
range of options for deciding which cases should be heard by one as opposed to
three persons. These included;
• A statutory list designating which sections involve which type of panel
• An open discretion for the Chair to assign cases to a panel
• A guided discretion to the Chair, with certain presumptive rules, and
guidelines about how other cases should be assigned
• A rule-making power allowing the Board to set its own rules.
We have decided upon a presumptive rule whereby, unless otherwise directed by
the Chair, certain specified cases can be heard by a single Vice-Chair sitting
alone. We have not developed a comprehensive list, but we suggest that the
following matters be added to those currently heard by a single member:
• Duty of fair representation cases
• Duty of fair referral cases
• Determinations as to employee status, whether a collective agreement
exists and similar determination questions
• Complaints concerning internal union discipline
• Requests for leave to bring an application (where needed) or to extend time
limits
• Preliminary motions
• Any other case where the parties to the case consent
This list should not be absolute. The Chair should be given the statutory power to
assign a larger panel in cases where, due to the nature of the case, he or she
thinks it appropriate to do so. The Chair should also have the discretion, where
there is urgency and a need to avoid delay, to assign a case to a single panel
member even if it is not on the list.
Recommendations:
• The Code should specify a list of types of cases that may be heard
by a Vice-Chair sitting alone.
The Chair should be given the discretion to assign cases to more
than one person, even if they can be heard by a Vice-Chair sitting
alone.
The Chair should be given a guided discretion to assign other cases
to a Vice-Chair sitting alone where the urgency of the
circumstances require it.
Any case may be heard by a Vice-Chair sitting alone at the parties'
request or with their consent.
Chapter 13
Powers of the Canada
Labour Relations Board
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Regulation-Making Powers
Power to Compel the Production of Documents
Pre-Hearing Conferences
Power to Issue Interim Procedural and Remedial Orders
Power to Abridge Time Limits
Power to Receive Determination Applications
Administrative Delegation and Power to Sign on Behalf of the Board
Power to Dismiss Applications That Fail to Raise Sufficient Allegations
Remedial Powers
Rights to Standing on Judicial Review
Enforcement of Board Orders
Protection for Board Members' Notes
Teleconference and Video Conference Hearings
Alternative Dispute Resolution Options
In this chapter, we consider whether the powers granted to the Canada Labour
Relations Board are appropriate for the tasks assigned to it. The Board's powers
need to be both adequate and clear. During our review, we found too many
examples of collective bargaining relationships floundering while parties pursued
relatively technical points based on narrow interpretations of the Code's wording,
through years of court challenges. In some instances this has had a detrimental
effect not only on the industry in question, but on the broader public interest.
We have already made a number of recommendations related to particular
processes under the Code. Here we deal with general and procedural powers, as
well as a number of miscellaneous matters.
Regulation-Making Powers
The Board has fairly wide powers to make regulations on the matters listed in
section 15 of the Code. A number of suggestions were raised for changes to CLRB
procedures that could probably be dealt with by appropriate revisions to the
Board's regulations. Indeed, some of the points might best be achieved through a
change to the regulation-making power and to the regulations rather than to the
statute itself.
The number of helpful comments we received from counsel who appear before
the Board convinces us that the Board would benefit from regular input from this
source. We have no doubt counsel would gladly volunteer for this task and provide
valuable advice.
Recommendation:
The Board should consider forming a consultative committee of labour
and management counsel who appear before it. This committee would
receive and consider proposals for procedural reform at the Board and
for periodically revising the Board's Regulations.
Power to Compel the Production of Documents
The Board holds hearings to decide some very important issues. It does so without
the type of discovery process used in the courts. These hearings should not be
trials by ambush, but instead fair hearings that give each side the opportunity to
point the Board towards the facts. The ability to require the pre-hearing
production of documents is an essential ingredient of a fair process, although it is
a power that requires some procedural safeguards to protect against abuse.
The consensus process reached agreement on this topic and on the next topic
concerning pre-hearing conferences.
• PRODUCTION OF DOCUMENTS WITHOUT A FORMAL HEARING AND
PRE-HEARING PROCESS PRIOR TO FORMAL HEARINGS
• Production of documents without a formal hearing and a pre• hearing process are related and should be considered together.
• Provision should be made in the statute in order to allow the Board to obtain
documents without a formal hearing.
• Relevancy of documents required has to be addressed; for example, a
person in charge of a pre-hearing should be empowered to make a decision
on the relevancy of documents required based on the representations from
the parties; this may involve submissions in writing or, if necessary, a prehearing motion on the specific question.
• The pre-hearing process should be an integral part of conflict resolution,
rather than only a process used to produce documents.
The Board has the power to direct that an officer compile a report concerning the
facts of a case. It also has the power, in section 16, to compel a party to attend a
hearing and produce relevant documents related to the hearing.
In the case of Canadian Pacific Air lines Ltd. v. Canadian Air Line Pilots Association,
(1) the Supreme Court of Canada concluded that the Board could not compel the
production of documents as part of an officer's investigation, and could only use
its powers to require the production of a party's documents by holding a viva voce
(public and in person) hearing into the matter. The Court's interpretation of the
question turned on the wording of section 16. We think it is appropriate for the
Board to have the power to order the production of documents prior to a hearing
without first having to hold a hearing on the production question. To exercise this
power the Board should be satisfied:
(i) (a) that a party has requested the production of the document, class of
document or thing, or
(b) that the production of that document, class of document or thing has been
requested by an officer of the Board for the purposes of the officer's investigation
into the matter, and
(ii) that the document, class of document or thing are, in the opinion of the Board,
likely to be relevant to the matters before the Board.
The Board should be able to exercise this power without the necessity of a formal
hearing. After that, a party should be able to object to production on the basis of
privilege or similar legal ground, and have that question decided by the Board,
after hearing the parties, before any formal steps are taken to compel production.
Recommendation:
The Board should be given direct authority, or regulation making
authority, to compel the production of documents prior to hearing for
the purposes of examination by a Board officer or another party. Section
16(a) should be amended to be consistent with this authority.
1
[1993] 3 S.C.R. 724
Pre-Hearing Conferences
We believe the Board probably has the authority now, at least through its
regulation-making power, to provide for pre-hearing conferences and other prehearing processes to marshall the case it is about to hear. We believe the Board
would benefit from exploring its options in this area, and if there is any doubt
about its ability to require this, it should be clarified by a suitable regulationmaking power. We think the specifics of how this should be implemented should
remain for the Board to decide in consultation with practitioners.
Recommendation:
The Board should be given specific power to make regulations
concerning the holding of pre-hearing conferences, and for the making
of pre-hearing orders for the efficient conduct of cases before the Board.
Power to Issue Interim Procedural and Remedial Orders
The Board currently has a rather limited power, in section 20, to make interim
decisions. Labour relations issues can often move in stages, particularly where the
Board attempts to inspire or maximize the opportunity for the parties to negotiate
solutions themselves. There are several circumstances where an expressed power
to make interim orders would be useful. First, the Board should be able to make
interim preservative orders to preserve the status quo, or make some similar
holding pattern order, pending a full hearing. This is required because labour
relations often need to continue while Board proceedings are still pending. Several
provincial boards regularly exercise such interim powers without difficulty.
Second, the Board should be able to make interim procedural orders to provide a
process for the conduct of a matter. It probably has this power now. But since
there is some doubt about it, it should be clarified. Third, the Board should be able
to make interim orders or declarations about substantive matters, either that deal
with a part of a matter, or that allow a staged remedy pending further hearings.
Recommendation:
The Board should be given a clear power to make interim procedural,
preservative or remedial orders in cases before it.
Power to Abridge Time Limits
Section 16(m) of the Code gives the Board the authority to:
"abridge or enlarge the time for instituting the proceeding or for doing any act,
filing any document or presenting any evidence in connection with the
proceeding;"
The Courts have held that this power is insufficient to allow the Board to abridge
or enlarge the time-limits specifically set out in the Code, such as the ninety-day
period for the filing of unfair labour practice complaints set out in section 97. We
believe it would serve the interests of justice if the Board had a residual discretion
to provide relief in appropriate cases of missed time limits. It would be sufficient in
our view for the Board to set out the criteria for doing this on a case by case
basis.
Recommendation:
The Board's statutory authority in section 16(m) should be extended to
time limits imposed within the statute itself concerning proceedings
before the Board, including that in section 97.
Power to Receive Determination Applications
Section 16 of the Code lists a series of determinations the Board can make of the
type that often arise in Board proceedings. The section reads:
"The Board has, in relation to any proceeding before it, power ... to decide for all
purposes of this Part any question that may arise in the proceeding, including,
without restricting the generality of the foregoing, any question as to whether ..."
[The Code then gives a list of items the Board can decide such as whether a
person is an employer, a unit is appropriate, or a collective agreement has been
entered into.]
The courts have held that the Board may only make these deci- sions in the
context of another application before the Board. They cannot accept applications
to decide such questions on a "stand-alone" basis. For example, they cannot
presently hear an application to decide whether a collective agreement has been
entered into unless it arises on some related application. Although such questions
can and often should be decided through the arbitration process when they arise
between parties to a collective agreement, there are other situations where it is
appropriate for the Board to decide such issues. We believe the Code should be
amended to give the Board that power, subject to its right to decline to do so
where a decision is unnecessary or arbitration is available.
We have made certain recommendations concerning employer organizations. If
these are accepted, section 16(p) should be extended to allow the Board to make
appropriate determinations concerning these organizations and the employers
involved.
Recommendations:
Section 16(p) should be amended to allow the Board to decide the listed
issues on application by any affected party or in any proceeding.
Section 16(p) should allow a reference concerning an employers'
organization and whether an employer is a member of or has given
authority to an employers' organization.
The Board should be given the discretion to defer making any decision
when the parties are able to have that same matter dealt with by
arbitration or similar process.
Administrative Delegation and Power to Sign on
Behalf of the Board
There are some routine decisions in matters before the Board that could be
adequately dealt with at the Registrar's level. For example, it should not require a
Board panel to approve an application to withdraw a complaint, to issue an
ordinary subpoena, or to sign a consent order in a routine matter that has been
settled by agreement.
Obviously, there would need to be a check on the exercise of such powers, so
that, if a question arose, the exercise of the delegated power could be appealed to
the Board for a regular Board hearing. However, with that safeguard, we believe
that a measure of administrative delegation to the Registrar's level should be
allowed. This would allow a more expeditious handling of routine matters,
particularly outside of the National Capital Region.
An unnecessary source of delay in the Board's process is waiting for documents to
be signed. The Board should also be able to delegate the power to sign certain
documents to specified members of the Board, or to senior officials. This could be
done as part of the Board's Rules. We are not, here, suggesting changing who
must make the decisions. We simply wish to ensure that once a decision has been
duly made, the process is not held up waiting for signatures. This could apply to
certifications, others forms of decisions, and similar process documents.
Recommendations:
The Code should authorize the Board to make regulations allowing the
delegation of certain decision-making powers of an uncontested or
quasi-administrative nature to the Board's Registrars provided that
there be an appeal to the Board in the event of dispute.
The Code should authorize the Board to make Rules delegating authority
to sign Board documents to specified Board members or officials and
documents thus signed would have the same legal force as if signed by
the persons authorized to make the decision or issue the document in
question.
Power to Dismiss Applications That Fail to Raise
Sufficient Allegations
Section 98 of the Code has the effect of requiring the Board to hold a public
hearing into all complaints except those under sections 37 and 69 (duty of fair
representation and fair referral). In many cases, a public hearing, with
opportunities for both sides to call evidence, is the appropriate way to proceed.
However, we believe a full public hearing is only justified for unfair labour practice
cases, including those under sections 37 and 69, where the application discloses
facts which, if proven, would arguably give rise to a finding that the Code had
been violated.
The Board should have the ability to require complainants to provide sufficient
particulars where they are initially lacking. Thereafter, if the application fails to
disclose facts that might reasonably give rise to a remedy, the Board should have
the power to dismiss the case without the obligation to hold a full hearing. The
Board should also be able to dismiss summarily cases that are frivolous, vexatious
or made in bad faith. This power would be analogous to the court's power to strike
out pleadings that disclose no cause of action.
There are certain other situations where the Board should perhaps hold an initial
hearing to get to the root of a complaint, without having to hold a full hearing.
This would be a preliminary, and summary, hearing process appropriate to those
cases where it is unclear whether there are reasonable grounds to believe the
Code may have been violated.
We think this may be particularly appropriate in cases involving individual
complainants in matters like the duty of fair representation or referral. Such a
process would serve several purposes. It would provide the complainant with a
speedy opportunity to provide an oral account of concerns to the Board. It would
allow the Board to redirect those many complaints that would be more
appropriately dealt with elsewhere, and to provide an explanation of the law's
limits to those whose cases clearly fall outside the scope of the section in
question. It would allow the officers' resources to be concentrated on those cases
that raise a prima facie case. It would avoid disputes about particulars of the case
to be met for those cases directed on for a full hearing. We believe this process,
with a quick opportunity for the complainant to be heard by the Board, would be
welcomed by complainants as well as employers and unions.
Recommendation:
The Board, by regulation, should establish a summary and expeditious
early hearing process for those cases where it is appropriate to do so for
the purpose of making a preliminary determination of whether there are
grounds to believe that the Code may have been violated. The purpose
would be to deal summarily with those cases without sufficient merit,
and direct pre-hearing processes and hearing dates for those that
should proceed to hearing. The full hearing should exclude the persons
who heard the matter in the first instance unless the parties consent
otherwise.
Remedial Powers
Under section 99(2), the Board may order a party to do "any thing that is
equitable" to remedy or counteract "any consequences" of a contravention, "for
the purposes of ensuring the fulfilment of the objectives" of the Code. There is no
consensus among labour and management on the need to expand the remedial
powers of the Board. Some unions have expressed the view that it is necessary to
clarify the list of remedies enumerated under section 99(1). In particular, this is
sought in the cases of a breach of the duty to bargain in good faith where there is
no remedy specified.
In the recent Royal Oak case,2 the Board used its broad remedial powers under
section 99(2). It issued an order imposing on parties a process designed to
remove the block that the Board concluded that Royal Oak had placed in the
bargaining process. The order was aimed at pressuring the parties to bargain in
order to reach an agreement. The Board considered less intrusive alternative
remedies, such as a cease and desist order or a direction that the parties bargain.
However, the Board found these remedies to be "unrealistic and even a cruel
waste of time".
In accordance with our views on voluntarism, we view with great caution the
Board's use of its remedial powers in the area of imposing collective bargaining
solutions. However, as we have already indicated with respect to the illegitimate
use of replacement workers, where the Board finds bargaining proposals, or the
lack of them, to be a veneer for efforts to rid the worksite of the union, then we
think it can, and in extreme cases, must use its remedial powers to counteract
that action. Because of the uncertainty over the Board's powers in
this area, which are currently before the courts, we recommend that the Code be
amended to make these powers explicit.
In addition, we believe the Board should be given a plenary power to make
whatever orders or directives are necessary to give effect to its jurisdiction under
the Code.
Recommendations:
Section 99(1) should confirm the ability of the Board to direct that a
party include or withdraw specific collective agreement terms in a
bargaining position in order to rectify a failure to bargain in good faith
directedat undermining the trade union's right to bargain. In addition, if
necessary, the Board should be able to direct a binding method of
resolving those terms in the dispute that it found to violate the duty to
bargain in good faith.
The Board should be given statutory authority so that when it makes a
decision with respect to a complaint, reference, or application, it may by
order or directive give any remedy that is appropriate to the matter or
necessary to ensure compliance with and enforcement of Part I of the
Code.
Right to Standing on Judicial Review
Parties have a limited right to challenge Board decisions under the Federal Court
Act. Questions have recently arisen about the Board's right to appear and make
submissions on such applications. We recognize that there are important
considerations for and against this proposition. However, on balance we believe it
is appropriate that the statute give the Board this right.
The Board and its counsel must be cautious to avoid the appearance of joining in
the fray between two litigants, who will often have to appear before the Board
again. It must preserve its neutrality and independence and concern itself with
appearances as well as reality.
The Board is an expert tribunal. It has ongoing responsibility for the administration
of a complex and carefully balanced statute. While the Federal Court has taken a
somewhat restrictive view of the Board's right to appear, the Supreme Court of
Canada and many provincial superior courts have recognized the propriety and
even desirability of administrative tribunals appearing to:
• Explain the record before the court and the process that took place in the
case under review
• Explain their role, internal functioning, policies and procedures including the
rationale behind such matters
• Address questions concerning their jurisdiction and special expertise
Recommendation:
The Code should confirm the right of the Board to appear as a party in
judicial review proceedings concerning decisions of the Board and to
make submissions on those applications.
2
Canadian Association of Smelter and Allied Workers (CASAW), Local No.4 and
Royal Oak Mines Inc. (1993), 93 di 21 CCLRB no. 1037).
Enforcement of Board Orders
A party seeking the enforcement of a Board order has to request the Board to file
the order with the Federal Court. This allows the party to enforce the order as if it
were a judgement of that Court through execution or contempt proceedings.
However, the Board has the discretion not to file where there is no indication or
likelihood of failure to comply with the order or where the filing would serve no
labour relations purpose. Some parties proposed that the Board's discretion to file
be removed and that the Board's orders be filed for enforcement in any superior
court, not only the Federal Court. Although the latter proposal holds advantages
for many practitioners, we believe that the Board's discretion should remain
intact.
The question of non-compliance should be decided by the forum that made the
order, namely the Board. This process allows the Board to resolve the difference in
a non-adversarial manner or to review its order in light of subsequent events.
Recommendation:
At a party's request, the Board should be empowered to file its orders in
any provincial superior court in lieu of the Federal Court and in so doing,
such orders should become enforceable as orders of that court.
Protection for Board Members' Notes
Board members frequently sit in panels of three or more members. Like all
adjudicators, they tend to make notes for themselves during the course of
proceedings to refresh their memories and remind themselves of their reaction to
certain evidence. Such notes tend to be personal aide mémoires rather than a
transcript of the proceedings. Recently, some have voiced the view that such
notes are part of the Board's record and ought to be available to individuals for
examination, or producible through privacy and access to information
proceedings.
This suggestion puts adjudicators in an impossible situation. Such notes inevitably
involve personal reactions, fleeting judgements and frank comments made at the
moment, to be reviewed at the end of the case, in private with colleagues on the
panel as part of the decision-making process. There is no more justification for
public examination of such notes than there is for examining a judge's notes or
initial drafts of reasons for decision or court judgements. Such a requirement
would simply result in no notes being taken, to the detriment of the quality of
decision-making.
The Code should clarify that documents like notes of this type, draft reasons and
similar documents are privileged and not producible under any process except
perhaps for allegations of a criminal nature or in a judicial inquiry.
Recommendation:
The Code should provide protection from disclosure for Board members'
personal notes and draft reasons for decision concerning a case.
Teleconference and Video Conference Hearings
Technology is rapidly creating the ability to hold effective hearings at a distance.
Several administrative tribunals conduct hearings by video conference at
considerable savings to the tribunal and the parties. While this type of hearing is
not appropriate in all cases, it could help the Board reduce some of its scheduling
difficulties.
There are some matters, particularly pre-hearing or interim matters and questions
involving argument not evidence, where a conference call may be sufficient. We
believe the Board should have the statutory authority to use such technology in
appropriate cases.
Recommendation:
The Code should provide the Board with statutory authority to hold
video-conference, teleconference and similar forms of distance hearings
where it is appropriate to do so.
Alternative Dispute Resolution Options
There were different levels of acceptance throughout Canada for the suggestion
that the Board encourage alternate forms of dispute resolution for matters before
the Board. Partly this was due to regional differences in practice. In some areas,
such initiatives are common place and well accepted. In others, they are viewed
with some suspicion. Partly it is due to terminology. Alternative dispute resolution
(ADR) is a generic term that covers a range of pre-hearing (and sometimes midhearing) options designed to narrow the issues in dispute or achieve settlement.
To some extent, the Board's Registrars are encouraging this now, through the
mediation efforts they and their officers pursue.
There are steps Board members or panel chairs might take to assist the parties
with settlement, even if it means the case may subsequently be heard by another
panel. The recommendations we have made about scheduling may facilitate this,
subject to suitable safeguards. The consensus committee's view on ADR was as
follows:
ALTERNATIVE DISPUTE RESOLUTION (ADR) MECHANISMS
• ADR should not be imposed on the parties
• No need for any modification to the Code
We agree that such processes cannot be imposed, only encouraged. However,
what will make them acceptable is skilled work by the Board and invitations, at
appropriate times, to seek alternative means to resolve disputes. We encourage
the Board to develop its skills in this area, and the parties to begin
experimentation. The rewards of such processes in terms of client satisfaction,
reduced costs and improved relations have been high in those places where such
methods have been made available and utilized.
Recommendations:
The Board should take steps to increase its ability to offer alternative
methods of dispute resolution to those parties willing to use such
approaches in matters before the Board.
The Code should be amended to permit the Board, its members and
officers to assist the parties to a dispute to resolve it in such ways as
the Board considers appropriate, subject to the rights of the parties to a
fair and impartial hearing before the Board.
Chapter 14
Mediation and Conciliation
Services
In this chapter, we address the role of the Federal Mediation and Conciliation
Service (FMCS). We have already described in Chapter 8, changes we recommend
to the conciliation process. We also recommend the continued ability to offer
mediation during any dispute. In the introduction to this Section we made a
recommendation to transfer or delegate the administrative tasks, currently vested
in the Minister, to the Head of FMCS.
We now turn to some additional roles of FMCS. The profile of FMCS should be
increased because of the evolving importance of resolving disputes and improving
underlying relationships. We have recommended reducing the length of
conciliation drastically, which should allow a reallocation of resources to these
other activities. These activities, designed to improve the quality of bargaining
relationships and the skills of those responsible for bargaining, will also serve to
increase the effectiveness of FMCS. An agency that has been involved with parties
for the duration of a contract often has more insight and more influence when the
parties encounter difficulties in collective bargaining.
The Code's acknowledgment of the fundamental value of collective bargaining
does not ensure positive labour relations or industrial peace. Negotiations often
flounder, solutions are often difficult to discover, and simple grievances often
escalate into festering problems. This does not always happen because the
parties are uncooperative or unwilling to negotiate in good faith.
Difficulties also surface during the term of a collective agreement and during
contract negotiations. Often they emerge as a crisis in the form of a threatened
plant closing or merger, or they haunt the administration of a collective
agreement by straining the application of contractual terms that were drafted
without foreknowledge of emerging situations.
No matter when or how these difficulties arise they impede productivity, as the
parties are diverted from their business's raison d'être towards searching for ways
to address current problems. Sometimes parties lack the problem-solving skills
necessary, or if they have such skills, they need the assistance of a neutral third
party to facilitate the search for an acceptable solution.
FMCS currently provides neutral assistance by developing and offering services
both during and beyond formal collective bargaining intervention. Its role has
been to monitor and assist the parties on behalf of the Minister in labour disputes.
The goal of achieving enduring collective agreements, that will enable parties to
compete and thrive in a challenging economy, can be frustrated by:
• lack of objective or reliable information relevant to negotiations
insufficient exchange of reliable information between parties
unresolved grievances or historical relationship problems
unskilled or unsophisticated bargaining teams particularly in new
relationships
lack of knowledge about how or when to utilize third party mediation or
assistance
lack of knowledge about the range of dispute resolution techniques and
assistance available
FMCS addresses these problems by offering a menu of services beyond traditional
conciliation and mediation:
Preventive Mediation:
Offered jointly to employers and unions on a voluntary basis during the term of a
collective agreement, these programs help the parties build and maintain a
constructive and cooperative working relationship. Preventive Mediation includes
the following programs:
• Establishing a Labour-Management Committee
Negotiation Skills Training
Committee Effectiveness Training
Relationship by Objectives
Grievance Mediation
Facilitation
Negotiation Skills Workshop: Joint Training in
Interest-Based Negotiation
• Also known as mutual gains bargaining, interest bargaining is gaining
acceptance as an approach to problem solving which helps parties reduce
the conflict that may arise during negotiations and enhance their working
relationship during the term of the agreement. The parties learn how to
avoid taking positions. Instead, they jointly identify issues that need to be
addressed, discuss their interests on each issue, and discuss and evaluate
options. FMCS presents joint workshops to labour and management that are
customized to meets the specific needs of the parties.
The success of these programs cannot always be documented, but should not be
underestimated. It is impossible to chart the number of days saved in negotiations
by the bargaining training programs that have been offered. It is impossible to
calculate the dollars saved from potentially prolonged arbitrations by the
successes of the grievance mediation programs. One could never determine the
number of strikes or lockouts that have been averted because of preventive
mediation programs. These successes are incalculable and yet invaluable. They
benefit the economy because they prevent lost production time and result in
higher efficiencies. They also assist in the orderly, peaceful and democratic
transitions in workplaces where changes are being implemented.
We heard praise and support from both labour and management organizations for
the preventive mediation services being offered by FMCS.
We believe the role of FMCS should be spelled out within the statute. This would
signal that dispute resolution and prevention programs are an important
component of Canada's collective bargaining policies. It would reinforce the
message that the Code is designed to foster a climate of dispute resolution rather
than being solely a conflict based system.
Giving FMCS explicit recognition in the Code would also allow the administrative
functions previously vested in the Minister to be assigned directly to that service.
It would allow statutory recognition of the special and direct reporting relationship
between the Head of FMCS and the Minister of Labour.
The CLRB should also be given the authority to call upon the professional services
and skills available through the staff of FMCS. For example, the CLRB should be
able to refer for mediation "first contract" or "bargaining in bad faith" complaints
where it is appropriate to do so. Further, the CLRB could take advantage of staff
cross training and joint skills development in cooperation with FMCS.
Throughout our review, we found it difficult to get clear statistical information
about the level of employment and collective bargaining activity within the
federal sector. We believe it is vital that such information be kept and published.
Many submissions alluded to the importance of our reputation abroad. In the
absence of clear well-documented statistics it is too easy for doomsayers to paint
an unjustifiably glum picture of Canada's performance, or for others to present an
unrealistically rosy view, thus avoiding calls for change.
It is not necessary that FMCS be solely responsible for such data gathering. But
they should have access to and be a prime source of information on how long
negotiations take, how many employees are involved, the incidence of work
stoppages and related data. Present data gathering is incomplete, involves too
many agencies with conflicting or incompatible criteria, and is too imprecise,
particularly when dealing with the differences between federal and provincial
jurisdictions.
FMCS should have statutory authority to gather information concerning the
parties' negotiations, and other relevant data. A formalized industry monitoring
role would help it maintain an awareness of relations and negotiations in each
sector, offer assistance before crises develop, and provide objective and reliable
data and analysis. This would greatly assist in the rational and efficient resolution
of industrial conflict. It would also bring some accuracy and accountability to
debates about Canada's reliability as a trading partner. This would not require new
resources, because the work is currently being done, albeit in a fragmented way.
FMCS's statutory mandate should include reference to the type of preventive
programs described above. In addition to developing and offering such programs,
we believe FMCS can be a catalyst for labour management or private sector
partnerships that will develop many such programs and make them available well
beyond what FMCS could offer alone. The Advisory Committee on Labour
Relations may well be of assistance with this area.
In addition to the earlier recommendations concerning the transfer of
responsibilities from the Minister to the Head of FMCS, we make these additional
recommendations.
Recommendations:
The Code should recognize the Federal Mediation and Conciliation
Service and direct that it continue to operate under that name.
There should be a clearly identified Head of FMCS responsible for its
direction with a direct reporting relationship to the Minister of Labour.
In addition to the specific responsibilities with regard to conciliation
services, the Code should vest FMCS with the following mandate:
a) to advise the Minister with regard to matters of labour relations;
b) to foster harmonious relations between unions and employers by
assisting with the development and renewal of collective agreements
and in their relationships with respect to their agreements;
c) to maintain an awareness of negotiations between unions and
employers in the federal sector;
d) to gather, compile and distribute statistical information on all matters
relevant to negotiations in the federal sector:
e) upon referral from the CLRB, provide appropriate assistance to the
parties;
f) to train, select and appoint persons who may act as mediators, fact
finders, conciliators, arbitrators or persons to assist in problem
resolution for the parties;
g) to work with the Advisory Committee on Labour Relations.
Chapter 15
The Arbitration Process
•
•
•
•
•
Mediation
Arbitration
Expedited Arbitration
Appointing Arbitrators
Powers of Arbitrators
Since 1944, the federal labour relations legislation has required that any
differences concerning the interpretation, application or violation of a collective
agreement be referred for final settlement (section 57). This can take the form of
arbitration or another mechanism. Because of this legislative mandate to
adjudicate "differences" (commonly called grievances), arbitrators are considered
a quasi-judicial tribunal.(1) The Code also authorizes the Minister of Labour to
appoint a mediator to help the parties to settle such differences (section 105).
Parties often want more than the base mechanism required by the Code. Many
collective agreements include various techniques through which the parties
attempt to settle grievances without having to refer them to third-party
adjudication. Most collective agreements provide for arbitration and contain an
internal grievance procedure, the mechanics of which may vary. In the absence of
a clause in the collective agreement, the grievance is referred to arbitration in
accordance with the provisions of the Code (section 57).
We did not hear a lot of criticism of Canada's federal grievance arbitration system.
Submissions did express concern about the delays, expenses and complexities
that seem to be increasing in recent years. But these problems were not
attributed directly to the federal arbitration system or the Code. Literature on the
federal system is practically non-existent.
We feel that caution must be exercised when trying to determine whether
grievance arbitration is achieving its objectives. But certain operating problems
can still be inferred from the available data and from various submissions made
during our hearings. We emphasize the lack of precise, useful information about
the quality and effectiveness of grievance arbitration. It is difficult to collect data
on the types of internal procedures, the nature and scope of settlements, the
details and costs of arbitration, and the nature and results of the decisions.
Currently, arbitrators must file their awards with the Minister of Labour. We
propose that statistics be kept and updated, and that arbitrators should file, along
with their arbitral award, information about the time taken and similar facts about
the arbitration (section 59). FMCS should be responsible for managing this
process, and analyzing the efficiency of various arbitration procedures. FMCS
would submit this information to the "Advisory Committee on Labour Relations".
This Committee would monitor the arbitration process and make
recommendations to the Minister for improvements.
Recommendations:
Arbitrators should be required to submit basic statistical information to
the Federal Mediation and Conciliation Service along with their awards.
The Federal Mediation and Conciliation Service should analyse grievance
arbitration provisions in collective agreements and keep statistics on the
arbitration process, publicize that information, and file an annual report
with the Advisory Committee on Labour Relations.
The Advisory Committee on Labour Relations should undertake an
annual assessment of the grievance arbitration system.
Mediation
Stakeholders remain concerned about arbitration's effectiveness. Some asked us
to consider a legislated framework for expedited arbitration or arbitral mediation.
Others argued that such measures would be an unnecessary and unwarranted
intrusion. Some analysts criticize the costs, delays and the judicialization of the
grievance arbitration process, suggesting various reform proposals.
Some studies called for less formal and less costly alternative settlement
mechanisms. Preventive mediation, in particular, received a great deal of
attention. It uses a neutral third party to identify and resolve the root causes of
grievances rather than simply to settle a specific difference. A facilitator works
with the parties to improve communications, find viable solutions and, in so doing,
improve day-to-day relations in the workplace. The aim is to avert grievances and
find methods for internal resolutions before problems become formal
"differences". The Federal Mediation and Conciliation Service offers this assistance
now, but nothing prevents the parties from using private experts as well.
Other studies recommend adding support techniques to the arbitration process. In
certain sectors, the parties are asking arbitrators to attempt to mediate their
grievances. Often this leads to a speedy settlement of the grievance, which is the
best of all possible dispositions. But even where complete settlement is not
achieved, these mediation efforts can still serve to narrow the scope of the issues
and focus the presentation of evidence at the hearing. If the mediation effort does
not result in a complete settlement, the parties will want the arbitrator to proceed
to adjudicate the issues remaining in dispute. This process is commonly referred
to as "mediation/arbitration" or "med/arb". Many parties expressed acceptance of
"med/arb" and a desire to use it in the federal sector. But concerns are raised over
the possibility of there being an allegation of bias raised at the end of the day by
a party dissatisfied with the results of an arbitrated decision from an arbitrator
who engaged in a "med/arb" process. Some provincial statutes address this
concern by vesting arbitrators with the specific power to embark upon "med/arb"
at the parties request, but the current Code has no such provision.
Arbitration
Other studies advocate restructuring the arbitration system. They propose many
different forms of expedited and summary arbitration. Expedited arbitration is
aimed primarily at speeding up the process. This can be achieved by simplifying
internal procedures to expedite the referral to arbitration, by preselecting and
booking arbitrators, or by setting shorter, firmer deadlines for the various
evidence taking procedures. Some methods include: pre-hearing disclosure of
evidence; disposing of preliminary arguments before dealing with the merits; and
setting the length for the hearing.
Summary arbitration is more concerned with simplifying and speeding up the
process through techniques like: a strict narrowing of the question to be
considered by the arbitrator; pre-hearing admission of facts with a restriction on
additional evidence; a ban on introducing case law not disclosed before the
hearing; or exclusion of lawyers.
The federal regime is unique, with a few dozen huge bargaining units and many
small units. The large units generally have highly sophisticated and quite varied
grievance and arbitration schemes designed over the years to suit each industry.
No studies catalogue the various arbitration processes found in federal collective
agreements. The parties can use the Code and their own creativity as they see fit,
in order to take into account the characteristics of their respective work
environments.
In view of the flexibility of the present system and the representations made to
the Task Force, we believe we must proceed cautiously before recommending that
grievance arbitration be further legislated. Sections 56 to 67 provide for a simple
standard mechanism to be used in cases where the parties fail to assume their
responsibilities. These provisions give arbitrators some powers necessary for their
task (sections 60 to 64). We recommend others below.
The Code does not dictate the kind of arbitration system the parties should adopt,
nor do we believe it should. It only requires that the collective agreement contain
a provision for final settlement, without stoppage of work, of all differences
between the parties concerning the interpretation, application, administration or
alleged contravention of the collective agreement. Nevertheless, parties should
be vigilant in seeking effective avenues for dispute resolution (or avoidance) as
they face the future.
1
Roberval Express Ltée v. Transport Drivers, Warehousemen and General
Workers, Local 106 [1982] 2 SCR 888; since this decision, the former section 157,
now 57, was amended in such a way that no doubt persists as to the designation
of the body.
Expedited Arbitration
Some suggest that the Code should create an expedited arbitration scheme
similar to those existing in many provinces. Under these legislative systems,
collective agreements are deemed to include, or statutes provide, a method for
either party to refer a difference to a provincial office of arbitration, which will
appoint a single arbitrator to hear the case quickly. But these expedited provincial
systems came about as the result of demonstrated and significant problems in
having cases adjudicated on a timely basis by the arbitrators available at that
time. These schemes have proven effective in terms of time and expenses saved
and in terms of developing a body of trained arbitrators. But their success
depends on significant provincial resources being assigned to preventive
mediation, assignment and case management services.
If both parties want an expedited arbitration system or if they want to expedite a
particular grievance resolution, they are free and able to do so without further
legislation or a publicly administered appointment system.
Most provincial schemes, on the other hand, allow one party acting alone to
invoke the expedited process. A statutory scheme allowing the imposition of an
arbitrator and time guidelines on the parties' dispute would be highly significant
to many federal parties. It would alter the Code's existing deference to the parties
in allowing them to design their own systems. It would also require the allocation
of significant new resources for the administrative structures needed to manage
the system.
This may be feasible and necessary on a provincial scale. But it is a major
undertaking for the diverse federal work force which requires arbitration
throughout the country. The large bargaining relationships in the federal system
are sophisticated enough not to need such a system, and there is a risk that
imposing one might disrupt their present arrangements. There is no compelling
evidence of need amongst the smaller bargaining relationships for a statutory
expedited system similar to those that exist provincially.
Recommendations:
Parties should work to streamline their internal grievance procedures as
well as their arbitration process.
An expedited arbitration system should not be included in the Code at
this time, but the issue should be placed before the Advisory Committee
on Labour Relations for further review.
The Federal Mediation and Conciliation Service should partner with
labour management and neutral groups to ensure consulting services
are available to parties wishing to evaluate their grievance and
arbitration processes.
Appointing Arbitrators
If parties cannot agree on who should arbitrate a dispute, section 57(5) of the
current Code requires the Minister to make an appointment. Concerns were raised
that this process takes much longer than necessary. This process should be quite
straightforward and appointments almost immediate. There should be a list of
experienced arbitrators, modified periodically. Applications should then be
assigned to an appropriate person from that list, given the linguistic needs and
the location involved in the request. We see no need for this to be handled by the
Minister's office and recommend the appointment power rest with the Head of
FMCS.
The list, and appointments to it, should be a transparent process based on labourmanagement consultation. We recommend that the Advisory Committee on
Labour Relations be assigned this responsibility, acting in conjunction with the
Head of FMCS. Parties involved in the arbitration process would see this as an
additional guarantee that a pool of arbitrators, recruited for their expertise and
their acceptability to the labour relations community, would be in place.
Recommendations:
The authority under section 57(5) to appoint arbitrators when the
parties cannot agree should rest with the Head of FMCS.
Responsibility for maintaining a list of arbitrators and for periodically
updating the list should be assigned to the Advisory Committee on
Labour Relations. The list with
information about the listed arbitrators, should be published annually by
FMCS.
Appointments should be made within ten days of the application from
the list of arbitrators, with the Head of FMCS having the authority to
appoint from beyond the list if no suitable arbitrator is available to hear
the case within a reasonable time.
Powers of Arbitrators
As a matter of first principle, we believe that the parties to a collective agreement
should be the defining architects of their arbitrators' powers and authority.
However, most labour relations jurisdictions recognize that arbitrators require
certain statutory powers to avoid inequities. For example, many collective
agreements contain mandatory time limits for the filing and processing of
grievances. This is advisable given the parties' needs for predictability and order
in the workplace. However, unless an arbitrator has the authority to give relief
against contractual time limits, grievances cannot be heard by an arbitrator no
matter how brief the delay or the fact that the delay may result in no prejudice to
any party. An individual with a legitimate grievance against dismissal might not
have access to arbitration solely because someone else missed a time limit in the
grievance procedure. Such an outcome is neither good for labour relations nor
good labour relations policy. Consequently, most labour relations statutes give
arbitrators the power to relieve against time limits when it would not prejudice the
other party. The current Code has no such provision.
Arbitrations have become more complex in the past decade. It is not unusual for
cases to take months or years to complete. The parties tend to blame each other
or the arbitrators for the increasingly long and complex nature of the process.
Everyone points fingers at lawyers, who are blamed for importing legalistic
concepts and technicalities into what was once considered a simple and efficient
process. However, the parties also rely on these lawyers and their concepts to
protect their individual interests when required.
Everyone agrees that arbitration should be efficient, flexible and able to deal
expeditiously with the real issues in dispute between the parties. The hearing
process should be reserved only for those issues that cannot be resolved by the
parties on their own. The process should not be allowed to become so protracted
that remedies are rendered meaningless or continuing liabilities escalate beyond
any rational measure.
We recommend giving arbitrators statutory authority to enable them to help make
the process more efficient and help focus on the real issues. We include the power
to make prehearing orders for particulars and the production of documents or
other evidence. In some cases, interim relief orders may be appropriate.
Finally, as discussed elsewhere in our report, the parties to collective agreements
are often frustrated and confused by the numerous statutory schemes that impact
upon their activities. This is significant in the area of arbitrations because it is the
very area designed to bring finality to workplace disputes. But all too often, a
workplace incident will trigger several statutory schemes and several possible
forums for resolution. For example, a chronically absent employee who is
discharged or demoted because of his performance or attendance may have
access to human rights, workers' compensation, health and safety and collective
agreement rights and remedies. All these schemes are worthy of protection and
no rights should ever be prejudiced simply for the sake of efficiency. However, the
current system invites multiple proceedings, delays, and conflicting decisions.
This is of no benefit to anyone.
Provincial labour laws have attempted to reduce such potential complexities and
still respect the parties' arbitration processes by vesting arbitrators with the
authority to interpret and apply employment-related statutes. The Supreme Court
of Canada has held that arbitrators have the authority to apply the "law of the
land", including the Charter of Rights and Freedoms in order to resolve a dispute
in connection with a collective agreement.(2) Therefore, for clarity and for
efficiency, it is appropriate to include these powers in the Code.
Recommendation:
Section 60(1) of the Code should be amended to grant arbitrators the
following powers:
• to require any party to furnish particulars before or during a
hearing
• to require a party to produce documents or things relevant to the
matter before or during the hearing
• to make such orders or give such directions as the arbitrator
considers appropriate to expedite the proceedings or prevent the
abuse of the arbitration process
• to mediate differences between the parties at any stage
• of the proceedings with the consent of the parties and thereafter to
retain the power to determine the issues remaining in dispute
failing the successful mediation
• of all outstanding issues
• to fix dates for the commencement and continuation of the hearing
• to consider such submissions provided in such form or by such
method as the arbitrator considers appropriate or the parties agree
• to admit and act upon such evidence as the arbitrator considers
admissible, whether admissible in a court of law or not
• to determine the nature of the issues in dispute in order to address
their real substance
• unless a collective agreement specifies otherwise, to extend the
time for any step in the grievance or arbitration procedure under
the collective agreement, despite the expiration of such time,
provided that the arbitrator is satisfied that there are reasonable
grounds for the extension and the opposite party will not be
substantially prejudiced by the extension
• to interpret, apply and give remedial relief arising from human
rights and other employment related statutes, despite any conflict
between these requirements and the terms of the collective
agreement
• to grant interim orders, including interim relief, as the arbitrator
considers appropriate.
2
See Weber v. Ontario Hydro (1995), 125 D.L.R. (4th) 583.(continued)
SECTION I V
Beyond Part I of the
Canada Labour Code
Our present labour relations institutions are a product of our legal, constitutional
and social history. In the preceding chapters, we stayed relatively close to the
present configuration with respect to the division of responsibility between levels
of government and the basic structures of the institutions that govern our system.
In this Section we recognize a few of the wider options available.
The Division of Responsibility between
Levels of Government
The scope of the Canada Labour Code has been defined by the scope of federal
jurisdiction. It will change over time as the Court's interpretation of the
constitution evolves. In recent years, this process has brought several major
provincial telephone companies under federal regulation, as well as the nuclear
energy components of provincial power corporations. Changes in regulatory
arrangements can also alter the scope of the federal sphere. For example,
deregulation in the bus and trucking industry resulted in many formerly provincial
carriers becoming interprovincial carriers and thus subject to federal labour
relations regulation.
No doubt this evolutionary process will continue. Some argue that recent Supreme
Court of Canada decisions raise the possibility that the constitutional jurisdiction
over some areas may shift if the provinces are unable to legislate to meet
Canada's international undertakings. Others argue that the increased reliance on
communications, or the integration taking place within the banking industry, may
also alter the jurisdictional mix. We have already discussed the impact federal
commercialization initiatives are having as the privatization of federal work in
many cases results in a move to provincial jurisdiction.
Within the federal sphere, there are two areas where broader change may well
impact upon labour relations authorities. The first relates to Yukon and the
Northwest Territories. Unlike the rest of Canada, the Canada Labour Code is the
only labour code in these territories, governing all their private sector labour
relations. If territorial self-government moves forward, these territories may seek
greater control over labour relations matters including either their own codes, or
at least their own labour relations boards, to inject a measure of proximity and
self-determination into northern labour relations. This could be accomplished by
creating a northern division or northern panel of the Canada Labour Relations
Board, perhaps with local administration.
The second developing area is one we have already alluded to, that of emerging
First Nations self-government. Developments in this area will depend on the
results of the negotiation processes now underway. It is by no means clear that
First Nations will be content to adopt the current federal way of regulating labour
relations, instead seeking to develop a system of their own making. It would be
presumptuous to infer what form this might take. However, it is inevitable that
there will be some very important labour relations issues to be dealt with as the
practical consequences of self-government emerge. As with the territories in the
north, one possibility for the future might be a First Nations division of the CLRB.
An amended Code might leave the door open for such a step providing that
specialized panels could be established by regulation.
Increasingly, as a result of our free trade commitments and our heightened
concern over competitiveness, we are looking at barriers within Canada that add
to the cost of doing business in Canada or restrain intra-Canadian trade. We
should not ignore our systems of labour relations regulation in this process.
There is a growing lack of uniformity in Canadian labour legislation. In some
cases, this is due to clear differences of policy. In others, it is simply due to
different drafting styles or minor historical differences without any underlying
policy disagreement. Many decry the over-legalization of Canadian labour
relations, and this diversity of legislation is one of the causes. The same issues are
litigated over and over in each jurisdiction, with each case providing fuel for the
next argument rather than clarity for future application of the law.
Useful work could be done to promote a measure of harmonization. This could
reduce costs to business and labour and barriers to trade. Employers and unions
currently must adapt to the differences in law in each province in which they
operate, adding to the cost, reducing the ability to engage in national bargaining,
and making national employment policies difficult to design. These are the hidden
costs of regulatory diversity.
The present split, where the federal government regulates labour relations for the
whole of the federal jurisdiction and the provinces do the same for their own
jurisdictions, is not a constitutional given. For extended periods in our history, we
have adopted other approaches and could do so again.
One way to achieve these objectives is through interdelegation. While it is not
constitutionally permissible for one legislative body to delegate powers to
another, it is legally possible for a legislative body to delegate powers to a board
or agency established by another legislature. Consequently, provinces could
delegate powers to a federal agency, and the federal government could delegate
to an agency of any or all of the provinces, and both levels could delegate to a
joint body. Also, provinces could incorporate federal legislation by reference into
provincial legislation that, in turn, could be applied by a provincial, federal or joint
body. The federal government could do the same.
It is not obvious that all the undertakings currently under federal regulation are so
intrinsically federal and national in scope that federal labour relations regulation is
essential. Some undertakings in the federal sphere are essentially local in nature;
for example, flour mills which are brought in as part of the grain industry, or even
the nuclear components of provincial utilities. We make no recommendations in
this area, but point out that the flexibility offered by interdelegation or joint
regulation can apply over to some parts of federal jurisdiction.
There are examples in other labour areas where similar techniques are already
used. The recent federal decision to incorporate by reference the minimum wage
standards set in each province and territory is an example. Other examples
include workers' compensation administration and private sector pension
regulation.
It is possible for the CLRB and federal public servants to receive the powers and
responsibilities delegated by the provinces. Although not recently used, it remains
an option for provinces lacking the resources to fully meet their labour relations
responsibilities. All these options remain open if the provinces and the federal
government want to include labour relations administration as part of their
broader efforts to reduce barriers and increase efficiency of government within
Canada.
Consolidating Administrative Structures
The last fifty years has seen a huge growth in administrative tribunals not unlike
the growth of government. We have tended to create a new tribunal for each
piece of social or regulatory legislation that has come forward. This has been
particularly true in the labour arena. The problem in Canada is exacerbated by the
often confusing mix of federal and provincial responsibility.
There are currently three agencies administering separate pieces of federal labour
legislation; the Canada Labour Relations Board, the Artists and Producers
Professional Relations Tribunal; and the Public Service Staff Relations Board.
We recognize that consolidation is beyond our mandate. However, we see
considerable merit in rationalizing these agencies and, more importantly,
beginning to move towards rationalizing the resolution of workplace disputes.
We have noted the federal initiative towards commercialization of some of its
operations. This trend brings with it a gradual reduction in the differences
between public sector and private sector employment. While distinctions will
remain and some statutory differentiation is inevitable, we can see little difference
in the expertise needed to chair, administer or adjudicate at the CLRB as opposed
to the PSSRB. The Artists Tribunal is a little different in that it has a quite distinct
client base. However, this jurisdiction too, could be accommodated with a
consolidated board, if specialized expertise were maintained.
In our view such an initiative would provide several benefits:
• Cost savings to government from consolidated operations. We were struck,
in reviewing the CLRB, by just how much of its overhead seemed to be used
up carrying out its administrative role as a federal department. We believe
there are important efficiencies of scale to be obtained.
• Savings to the parties. "One stop shopping", with shared facilities across
Canada, officers able to respond to requests or applications under either
Act, and panels able to handle hearings under more than one statute, all
offer more service and flexibility to parties.
• Rationalization of procedures. A merger of tribunals could result in the
homogenization of procedures, eliminating unnecessary diversity in dealing
with essentially similar topics.
• Broader based coverage. Some of the questions that are raised by
privatization or other changes in the organization of the public sector
workplace would be easier to sort out legislatively and in practice if one
tribunal not two had authority to deal with these matters.
There is also a need to reconsider how we resolve our workplace disputes. We
have developed a confusing puzzle of overlapping tribunals and remedies with
only such creaky legal tools as issue estoppel, res judicata and laches to help us
sort out which tribunal should deal with what. Expert labour lawyers may have the
experience to ply these troubled waters, but the average employee and employer
finds it difficult to understand the laws that govern their lives.
An unfortunate byproduct of this complexity is that it serves to convince
employers and employees that the solutions to workplace problems lie in the
hands of distant agencies, rather than within their own control and understanding.
At a time when we need to develop workplace problem-solving skills to enhance
our productivity, this is unfortunate.
We also need to delineate more clearly the roles of arbitration, labour boards and
the courts. The Ontario Law Reform Commission has worked on this concept. New
Brunswick is merging tribunals towards this end. We believe that there is growing
impatience among users and policy makers alike with the present jurisdictional
tangles which, while largely beyond our mandate, are important issues to which
attention should be directed.
APPENDIX A
Terms of Reference
CANADA IN THE MATTER OF ESTABLISHMENT OF A TASK FORCE TO REVIEW PART I OF THE
CANADA LABOUR CODE
WHEREAS the Canada Labour Code, Part I, recognizes freedom of association and
free collective bargaining as the bases of effective industrial relations;
WHEREAS the Government of Canada supports labour and management in their
cooperative efforts to develop good relations and constructive collective
bargaining practices;
WHEREAS technological innovations, globalization of markets, and major industrial
restructuring in the context of an increasingly competitive business environment
are putting significant pressures on the collective bargaining system;
WHEREAS effective labour-management relations contribute directly to the wellbeing of workers and to a firm's economic performance.
WHEREAS the government is of the view that the legislative framework should
foster innovative industrial relations approaches and encourage labourmanagement cooperation in the resolution of workplace issues;
WHEREAS the government, in "Building a More Innovative Economy", has
undertaken to review the industrial relations provisions in the Canada Labour
Code; and,
WHEREAS Section 106 of the Canada Labour Code (Part I - Industrial Relations)
provides that the Minister of Labour, upon application or on the Minister's own
initiative, may where the Minister deems it expedient, make any inquiries the
Minister considers advisable
regarding matters that may affect industrial relations;
NOW THEREFORE, the Minister of Labour appoints a task force composed of Mr.
Rodrigue Blouin, Mrs. Paula Knopf, and Mr. Andrew C.L. Sims, who will head the
group, to conduct a comprehensive review of Part I of the Canada Labour Code.
The Task Force is to identify options, and where appropriate make
recommendations for legislative changes, with a view to improving collective
bargaining and reducing conflict, facilitating labour-management cooperation,
ensuring effective and efficient administration of the Code, and addressing the
changing workplace and employment relationship. The Task Force is to hold
consultations with labour and management organizations whose members are
subject to the Code, and submit a final report to the Minister of Labour by
December 15, 1995, subject to extension at the discretion of the Minister.
Without limiting the scope of the review, issues which the Task Force is being
asked to address are listed in the appendix.
The Task Force, with the prior approval of the Minister of Labour, may retain such
assistance as may be necessary to facilitate its work.
IN WITNESS WHEREOF the Minister of Labour has hereto set her hand this 29th
day of June, 1995.
Minister of Labour
Appendix B
Public Consultations and
Written Submissions
Air Transport Association of Canada
Alberta Federation of Labour
Association des membres de la police montée du Québec Inc.
Atlantic Communication & Technical Workers' Union
BC Federation of Labour
BC Maritime Employers Association
BC Terminal Elevator Operators Association
BC Trucking Association
Bunge du Canada Ltée.
Business Council of BC
Canadian Air Traffic Control Association
Canadian Association of Broadcasters
Canadian Association of Labour Lawyers
Canadian Bankers Association
Canadian Chamber of Commerce
Canadian Construction Association
Canadian Daily Newspaper Association
Canadian Employers Council
Canadian Federation of Labour
Canadian Labour Congress
Canadian Manufacturers' Association
Canadian Maritime Worker's Council
Canadian Media Guild
Canadian Police Association
Canadian Pulp and Paper Association
Canadian Railway Labour Association
Canadian Union of Postal Workers - National
Canadian Union of Postal Workers - Vancouver Local
Canadian Wheat Board
Capital Region Members Police Association
Centrale des syndicats démocratiques
Communications, Energy and Paperworkers Union of Canada
Confédération des syndicats nationaux
Conseil du patronat du Québec
Council of Maritime Affairs (COMA)
Dale Johnston, M.P.
"E" Division Members Association (British Columbia)
Edmonton Working Women
Empire International Stevedores Ltd.
Federally Regulated Employers - Transportation Communication (FETCO)
Government of Alberta
Grain Services Union
Grain Workers Union - Local 333
Groupe Desgagnés Inc.
Human Resources Professionals Association of Ontario
International Association of Machinists and Aerospace Workers
International Brotherhood of Electrical Workers - First District
International Brotherhood of Electrical Workers - Local 213
International Longshoremen's & Warehousemen's Union Canadian Area
MacMillan Bloedel Ltd.
Manitoba Chamber of Commerce
Manitoba Federation of Labour
Manitoba Trucking Association
Maritime Employers Association
Maritime Tel & Tel
National Automobile, Aerospace, Transportation and General Workers Union of
Canada (CAW-Canada)
New Brunswick Mining Association
Newfoundland and Labrador Employers' Council
NWT Chamber of Mines
NWT Federation of Labour
"O" Division Members Police Association (Ontario)
Ontario Provincial Police Association
Ontario Trucking Association
Port of Québec Corporation
Public Service Alliance of Canada
Quebec Federation of Labour
Quebec Stevedoring Co. Ltd.
Réal Arsenau, c.r.i.
Reimer Express World Corporation
Roger J. Bédard & Associés
Saskatchewan Federation of Labour
Saskatchewan Mining Association
Sidney Green, Q.C.
St. Lawrence Economic Development Council (Sodes)
St. Lawrence Grain Elevators Association
Stentor Telecom Policy Inc.
Syndicat professionnel des ingénieurs d'Hydro-Québec
Teamsters, Local 31
Telecommunications Workers Union
Transportation Communications Union
Union of Needletrades, Industrial and Textile Employees
United Steelworkers of America
United Parcel Service Canada Ltd.
Waterfront Foremen Employers Association
Western Grain Elevator Association
Winnipeg Chamber of Commerce
Yukon Department of Justice
Appendix C
Academic Round Tables List of Participants
University of Toronto
Roy Adams, McMaster University
Bernie Adell, Queen's University
Rick Chaykowski, Queen's University
Morley Gunderson, University of Toronto
Pradeep Kumar, Queen's University
Brian Langille, University of Toronto
Deborah Leighton, Queen's University
Patrick Macklem, University of Toronto
Noah M. Meltz, University of Toronto
Joe Rose, McMaster University
Anil Verma, University of Toronto
Charlotte Yates, McMaster University
Isik Zeytinoglu, McMaster University
Université Laval
Michel Audet, Université Laval
Jean Boivin, Université Laval
Bernard Brody, Université de Montréal
Esther Déom, Université Laval
Jacques Desmarais, Université du Québec à Montréal
Ginette Dussault, Université Laval
Carol Jobin, Université du Québec à Montréal
Paul-André Lapointe, Université Laval
Madeleine Lemieux, Conseil des services essentiels
Gregor Murray, Université Laval
Jean Sexton, Université Laval
Diane Veilleux, Université de Montréal
Pierre Verge, Université Laval
University of Calgary
Christopher Bruce, University of Calgary
A.W.R. Carrothers, Arbitrator, IR Consultant, Victoria
James E. Dorsey, Arbitrator, Lawyer, Vancouver
David C. Elliott, Barrister and Solicitor, Edmonton
Geoffrey England, University of Lethbridge
Ron Franklin, University of Calgary
John Godard, University of Manitoba
Margaret Hughes, University of Calgary
Thomas Knight, University of British Columbia
Judi Korbin, Labour Arbitration and Mediation Services, Vancouver
The Honourable Elaine McCoy, University of Calgary
Kenneth E. Norman, University of Saskatchewan
Steven Peitchinas, University of Calgary
Allen Ponak, University of Calgary
Vince Ready, Labour Arbitration and Mediation Services, Vancouver
Yonathon Reshef, University of Alberta
Daphne Taras, University of Calgary
Mark Thompson, University of British Columbia
Joseph Weiler, University of British Columbia
Kurt Wetzell, University of Saskatchewan
Appendix D
ILO Conventions Ratified
by Canada
Convention Number and Subject / Date of Ratification
1. Hours of Work (Industry), 1919 March 21, 1935
7. Minimum Age (Sea), 1920 March 31, 1926
8. Unemployment Indemnity (Shipwreck), 1920 March 31, 1926
14. Weekly Rest (Industry), 1921 March 21, 1935
15. Minimum Wage (Trimmers and Stokers), 1921 March 31, 1926
16. Medical Examination of Young Persons (Sea), 1921 March 31, 1926
22. Seamen's Articles of Agreement, 1926 June 30, 1938
26. Minimum Wage - Fixing Machinery Convention, 1928 April 25, 1935
27. Marking of Weight (Packages Transported by Vessels), 1929 June 30, 1938
32. Protection Against Accidents (Dockers) (Revised), 1932 April 6, 1946
45. Underground Work (Women) Convention, 1935 Sept. 16, 1966*
58. Minimum Age (Sea) Convention (Revised), 1936 Sept. 10, 1951
63. Statistics of Wages and Hours of Work, 1938 April 6, 1946**
68. Food and Catering (Ships' Crews), 1946 March 19, 1951
69. Certification of Ships' Cooks, 1946 March 19, 1951
73. Medical Examination (Seafarers), 1946 March 19, 1951
74. Certification of Able Seamen, 1946 March 19, 1951
80. Final Articles Revision, 1946 July 31, 1947
87. Freedom of Association and Protection of the Right to Organize, 1948 March
23, 1972
88. Employment Service, 1948 August 24, 1950
100. Equal Remuneration, 1951 Nov. 16, 1972
105 Abolition of Forced Labour, 1957 July 14, 1959
108. Seafarers' Identity Documents, 1958 May 31, 1967
111. Discrimination (Employment and Occupation), 1958 Nov. 26, 1964
116. Final Articles Revision, 1961 April 5, 1962
122. Employment Policy, 1964 Sept. 16, 1966
147. Merchant Shipping (Minimum Standards), 1976 May 25, 1993
160. Labour Statistics, 1985 Nov. 22, 1995
162. Asbestos, 1986 June 16, 1988
* Deratified in 1978 because its provisions contradicted the principle of equality of
opportunity and treatment between men and women workers.
** Deratified in 1995 on ratification of Convention 160.
Summary of Figures
and Tables
Figures
Figure A Key Issues for Consideration
Figure B Highlights of Federal Collective Bargaining Law in Canada
Figure C Federal Mediation and Conciliation Service - Organization Chart
Figure D Canada Labour Relations Board - Organization Chart
Figure E Sitting Days for Chairs and Vice-Chairs
Tables
Table 2.1 Number of Bargaining Units by Industrial Sector (Federal Jurisdiction)
Table 2.2 Canada - Work Stoppages 1985-1995
Table 2.3 Federal Jurisdiction - Work Stoppages 1985-1995
Table 2.4 Total Person Days Not Worked Due to Strikes and Lockouts
Table 6.1 Canada Labour Relations Board - Certification Cases 1990-91 to 1994-95
(Average Disposition Time)
Table 6.2 Size of Bargaining Units Certified between 1989-90 and 1994-95
(average)
Table 8.1 Back-to-Work Legislation 1950-1995 - No. of Acts (Ten-Year Period) Federal Jurisdiction - (Part I, CLC)
Table 8.2 Back-to-Work Legislation 1950-1995 - No. of Acts (Industrial Sectors) Federal Jurisdiction (Part I, CLC)
Table 8.3 Federal Mediation and Conciliation Service - Caseload by Industrial
Sector 1991-95 (average) - Federal Jurisdiction (Part I, CLC)
Table 8.4 Usage of Secondary Conciliation Assistance and % of Settlements
Achieved without Work Stoppage 1976-1995 - Part I of the Canada Labour Code
Table 8.5 Length of Time in Direct Bargaining and in Conciliation for Cases Settled
between 1991-1995 (calendar year) - Part I - Canada Labour Code
Table 12.1 CLRB Resource Allocation - By Line Object
Table 12.2 The Board's Caseload
Table 12.3 Budgets and Caseloads of Major Labour Relations Boards
Table 12.4 Canada Labour Relations Board (all regions) - Workload 1985-1995 (File
Count)
Table 12.5 Canada Labour Relations Board 1994-1995 - Cases Received, by
Industry
Table 12.6 Canada Labour Relations Board 1994-95 - Applications Received by
Region, with Share of Total Caseload
Table 12.7 Canada Labour Relations Board 1994-1995 - Cases Received by File
Type
Table 12.8 Canada Labour Relations Board 1986-1995 - Timed Performance
Statistics, for All File Types
Table 12.9 Location of Board Hearings, 1994-95