The Ontario government has introduced a bill to make significant changes to employment law in that province. Every BC employer with employees in Ontario should follow the course of these proposed changes.
As our colleagues in Ontario note, the Bill may not become law under the current government, but the proposals are wide-ranging and follow earlier Law Reform Commission recommendations. See their analysis here.
The Province has made it possible for employees and volunteers to rely on a single criminal record check for a five year period with multiple employers, yet an employer’s right to require a criminal record check in every case is preserved.
The Province has made some important amendments to the Criminal Records Review Act (the “Act”), directed mostly at employees and volunteers who work with children or vulnerable adults but which could also impact employers. The Criminal Records Review Amendment Act (the “CRRAA”) came into force on November 30, 2013, and includes these changes that will be of interest to some employers:
- volunteers of “specified organizations” providing services to children or vulnerable adults (including government agencies, municipalities, school boards and non-profit organizations, among others) are no longer required to pay fees for criminal record checks (while the fee for regular employees has increased from $20 to $28);
- if a volunteer, employee, or applicant has had a criminal record check conducted within the last five years and no risk was identified (known as a “portable criminal record check”), he or she may simply provide a “criminal record check verification authorization” to specified organizations or employers; and
- employers and specified organizations are permitted to require a criminal record check, even if the individual could simply authorize a criminal record check verification.
What this means for employers
Specified organizations and private employers should benefit from an easier process for volunteers and employees with portable criminal record checks.
Most importantly, although the amendments make it easier for volunteers and employees to use a single portable criminal record check for five years, the CRRAA maintains employers’ and specified organizations’ entitlement under the Act to require applicants to undergo a criminal record check, regardless of whether the individual has a portable criminal record check.
Other McCarthy Tétrault blogs regularly touch on issues of importance for BC employers. Here is a selection from the last month.
Managing the risks of holiday parties. The office party season can be interesting. Think about how you can manage the risks.
It’s flu season. Tips for dealing with sickness in the workplace.
Trespassing on private property? Maybe not. Think picketing and leafleting. A business’s property rights - and the ability to control trespassing - may not be as clear as you think, especially if the business invites the public on its property or operates in a publicly accessible area.
Employee liability for technology breaches. Even standard employment tasks may lead to liability when an employee participates in the wrongdoing.
Buildings that know your employees. Smart buildings raise a number of issues, such as collection of personal information.
Random alcohol and drug testing causes irreparable harm to privacy interests, but not allowing it creates a risk of even greater irreparable harm to safety. That was the decision reached by an Arbitrator who was asked by a union to make an interim order to prevent the employer from implementing its new testing policy. (The decision is Teck Coal Limited, Unreported Arbitration Award, May 9, 2013 (Taylor)).
This is NOT a finding that random alcohol and drug testing is allowed. That is still very much in dispute and this decision was on the narrow issue of whether the employer should be prevented from implementing its policy until the union’s grievance is decided. But the decision does highlight the possibility that the right type of evidence in the right type of workplace may allow for random testing.
As noted in a previous post, the Supreme Court of Canada has recently ruled against a random alcohol testing policy at Irving Oil. But as the Teck case shows, it is all about balancing privacy and safety interests in each particular workplace; it cannot be said simply that random testing is not allowed.
Teck is confident it has the evidence to show the effect of drug use on safety in its workplace, and it believes it has cogent new expert evidence to show the efficacy of testing in improving safety. It hopes to get all that before the Arbitrator to justify its new testing policy.
We will watch the case with interest. In the meantime, the union is appealing the interim decision. The BC Court of Appeal last week refused to hear their appeal, so the matter is now going to the Labour Relations Board.
The Alberta Personal Information Protection Act has been declared unconstitutional by the Supreme Court of Canada. The sweeping decision was prompted by union video surveillance of people crossing a picket line. Because PIPA does not have any exemption to allow for a union to advance its interests in a labour dispute, it was held to be an unreasonable restriction on the union’s freedom of expression guaranteed by the Charter of Rights.
Alberta will have 12 months to make changes to the law before the declaration of invalidity takes effect. BC is effectively in the same boat since its Personal Information Protection Act is much the same as Alberta’s.
Our colleagues in Calgary explain here.
What remains to be seen is what effect, if any, this decision will have as the Supreme Court of Canada considers whether the guarantee of freedom of association includes a constitutional right to strike. (See the Saskatchewan Federation of Labour case which is going to the Supreme Court of Canada.)
Another Arbitrator in BC has decided against a general rule of anonymizing the names of grievors and witnesses in labour arbitration awards. The decision of Arbitator Stan Lanyon in the Sunrise Poultry case (Unreported, October 28, 2013) is the case we anticipated in our previous post on this issue.
Like Arbitrator John Sanderson in the Husband Food Ventures case, Arbitrator Lanyon was dealing with a request by the United Food & Commercial Workers, Local 1518 to have the names of the grievor and witnesses remain confidential in any Award in the matter. And like Arbitrator Sanderson, Arbitrator Lanyon decided there should be no such blanket rule. Instead, the general rule should be in favour of disclosure, with Arbitrators retaining the discretion to anonymize the names of grievors and witnesses when circumstances demand it.
Arbitrator Lanyon decided that he would not have granted anonymity to the grievor in this case, but did so only because the Union had already expressed its intention to appeal his decision.
The case will now move to the Labour Relations Board. We will continue to watch for developments.
The Labour Relations Board has confirmed that strike votes must be meaningful. In effect, collective bargaining must have progressed at least to the point where it is clear what is in dispute before a strike vote can meet the legal requirements of the Labour Relations Code.
There has been a growing frustration over unions quickly moving to strike votes and strike notice in the middle of collective bargaining. The Code requires collective bargaining, followed by a strike vote, followed by 72 hour strike notice before a union is in a legal strike position. Too often, unions have been holding strike votes early in the bargaining process. But it is not helpful, and in many cases actually impedes the process, when the employer has to turn some of its attention away from bargaining to worry about facing strike action in as little as 72 hours.
The recent ruling in All Tech. Transport Ltd. (well known to Vancouver parking violators as Buster’s Towing) is an important decision to help prevent normal course collective bargaining from prematurely turning into a full-blown labour dispute.
The parties proceeded in bargaining for a first collective agreement by discussing non-monetary issues before getting into the monetary. There were brief discussions on some monetary issues at a couple of meetings, before the parties returned to discuss non-monetary items. The parties even participated in mediation at the Board. But there was never a comprehensive exchange on monetary issues before the strike vote was taken.
The employer challenged the validity of the strike vote. The Board found in the employer’s favour, and summarized the requirements this way:
… [the discussions on monetary items] were not the kind of discussions which satisfy what the Board has characterized as an exchange of views on all the key or central issues in dispute for the purposes of Section 59(1) of the Code.
… there must be an exchange of proposals and there must be some discussion (an exchange of views) on all the key or central issues in dispute … .
It’s not too late, and it’s not too hard to comply, but the deadline is looming. WorkSafeBC’s policy regarding compliance with the bullying and harassment law enacted in 2012 will come into force on November 1.
We have previously described the legislation, and we have set out a plan for compliance. We can help employers get ready by November 1, and we can help in the training and the follow up that is required. Employers can also find help on the WorkSafeBC website which has a toolkit of materials to review and adapt.
In R. v. Metron Construction Corp., the Ontario Court of Appeal dramatically increased a fine imposed on the defendant Metron following its guilty plea to a charge of criminal negligence causing death, from $200,000 to $750,000.
Metron had entered into an agreement to restore concrete balconies on two highrise buildings. To perform this work, it acquired “swing stages”. Each swing stage was 40 feet long and consisted of four 10 foot long modules held together by plates and bolts. One of the swing stages collapsed at the end of the working day with five workers and a site supervisor on board, causing four of the men to fall to their deaths. The swing stage in question had only two life lines, though one was required for each worker under Occupational Health and Safety legislation. The swing stage did not have any marking, serial numbers, identifiers or labels describing its maximum capacity, as required by legislation and industry practice.
Forensic investigations showed the swing stage collapse was caused by its defective design and inability to withstand the combined weight of the six men and their equipment. Had six life lines been available and the workers been attached as required by applicable regulations and industry standards, the men would have survived.
As a result of the acts and omissions of its site supervisor in failing to take reasonable steps to prevent bodily harm and death, Metron pled guilty to criminal negligence causing death.
The trial judge fined Metron $200,000, plus a victim fine surcharge of 15% or $30,000. He observed that this was three times the net earnings of the business in its last profitable year and concluded that the $1 million sentence recommended by the Crown would drive the Company into bankruptcy.
The Court of Appeal found that a fine of $200,000 “fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business”. The appeal was granted and Metron was sentenced to pay a fine of $750,000. With the sentence imposed, the Ontario Court of Appeal sent a strong message regarding the importance of worker safety.