McCarthy Tétrault launched its 13th blog today, Alberta Employer Advisor, to help clients manage the challenges they face in today’s workplace. The blog provides employers and HR professionals with analysis of the latest legal issues that affect employment-related practices, labour and human resources policies. In addition to providing clients with insights on the implications of new case law, as well as updates on the latest legislative and regulatory developments, the blog will be regularly updated with practical tips, specifically relevant in the Alberta marketplace. We encourage you to visit the blog and subscribe for regular updates.… Continue Reading
The Supreme Court of Canada recently made a rare oral ruling from the bench, giving the B.C. Teachers’ Federation (“BCTF”) a quick win in their appeal of a decision by the B.C. Court of Appeal regarding discrimination and unequal treatment under the Human Rights Code and the Charter of Rights and Freedoms.
The case started in 2012 with a grievance filed by the BCTF against the British Columbia Public School Employers’ Association and the Board of School Trustees of School District No. 36 (collectively, the “Employer”). The grievance alleged that the collective agreement discriminated against birth mothers in that … Continue Reading
Since Unifor was created from the merger of Canadian Auto Workers and Communication, Energy and Paperworkers Union last year, another merger of unions in Canada has seemed likely. The expectation became the reality on November 7 when the Telecommunications Workers Union voted to merge with the United Steelworkers. The merger will become effective January 1, 2015, but the two unions have announced they will begin joint activities immediately.
What can you expect from the new union? As we saw with Unifor, the new union will undoubtedly engage in renewed organizing efforts and other campaigns. The merger agreement promises an initial … Continue Reading
In every jurisdiction in Canada, employees and employers share the responsibility for ensuring a safe and healthy work environment. In British Columbia, employers are required by the Workers Compensation Act [WCA], to ensure the health and safety of their employees and others working at their work place, which includes investigating safety risks and advising employees of same, and taking steps to eliminate or mitigate identified risks. Likewise, employees have obligations to protect their own and others’ health and safety, including reporting fit to work, wearing protective equipment, following safety procedures, and reporting any safety risks.
One aspect of … Continue Reading
While talks continue, there is no immediate end in sight for the ongoing teachers’ strike. For employees with school-age children, this may mean facing a child care gap starting next week. As an employer, what are your legal obligations and what can you do to make sure work continues while school’s out?
The Legal Framework
First, the Employment Standards Act provides all employees in the province with up to five (5) unpaid days of family responsibility leave each year for the care, health and education of a child in an employee’s care. Employers do not have the discretion to … Continue Reading
Our colleagues in Québec have produced a helpful summary of the recent Supreme Court of Canada decision involving a Wal-Mart in Jonquière, Québec, found to have breached its statutory duties during the freeze period following certification of a bargaining unit.
After negotiations for a collective agreement reached a standstill, the Wal-Mart in question decided to close its doors, for what it alleged to be legitimate business reasons. The arbitrator appointed to decide the Union’s grievance of the closure concluded that Wal-Mart’s decision to close the store was not in the course of the company’s ordinary business and therefore breached section … Continue Reading
With brand new labour and employment legislation, and a major case before the Supreme Court of Canada, Saskatchewan seems to be the current ‘centre of the action’ in Canadian labour law.
Constitutional Right to Strike?
On May 16, 2014, a very significant labour law appeal – Saskatchewan Federation of Labour v. Saskatchewan, from the Saskatchewan Court of Appeal – was argued before the Supreme Court of Canada. The Saskatchewan Federation of Labour and other unions argued that two pieces of provincial legislation violated employees’ right to freedom of association protected by the Canadian Charter of Rights and Freedoms.… Continue Reading
The Labour Relations Board has upheld BC Arbitrator Stan Lanyon’s decision in Sunrise Poultry Processors Ltd. v. United Food and Commercial Workers, Local 1518 (discussed previously here) that the names of grievors and witnesses should, as a general rule, be published in labour arbitration awards.
The union argued that British Columbia’s Personal Information Protection Act (PIPA) prohibits the disclosure of the names of grievors and witnesses in labour arbitration awards without their consent. In the union’s view, the increasingly easy public access to arbitration awards because of sophisticated internet search engines and free legal websites like Canlii mean … Continue Reading
Suncor had tried to implement a random drug and alcohol testing policy with respect to all of its safety-sensitive employees in the oil sands. The union resisted and was able to get an injunction from the Alberta courts to prevent implementation of the policy until the arbitration was completed.
A majority of the three member arbitration panel ruled against Suncor. They found that there was insufficient evidence of a problem with alcohol and … Continue Reading
Teck Coal will be allowed to continue to implement its random alcohol and drug testing policy while the union pursues its grievance to overturn the policy. Arbitrator Colin Taylor had previously denied the union an interim order to stop implementation of the policy (see our previous post here) and the BC Labour Relations Board has dismissed the union’s appeal of that decision. The decision is Teck Coal Limited, BCLRB No. B28/2014.
This means Teck will be allowed to follow its policy for now and the matter will go to arbitration for a decision as to whether the policy … Continue Reading
Everybody knows by now that the B.C. Teachers’ Federation has been awarded $2 million plus costs against the B.C. Government related to the dispute over class sizes. The B.C. Supreme Court ruled that the government simply duplicated previous legislation that had been declared unconstitutional. The court had harsh words for the government, essentially finding that the government ignored the court’s previous orders and that it had tried to provoke a strike by the teachers, supporting the court’s $2 million damage award, and likely a few hundred thousand in costs to be paid.
The cost to the public purse is bad … Continue Reading
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.… Continue Reading
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.… Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
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 … Continue Reading
Unifor, a new Canadian union with over 300,000 members, was created on the Labour Day Weekend. It represents the completion of the long-awaited merger of the Canadian Auto Workers and Communication Energy and Paperworkers unions.
As we have previously reported, the new union has high hopes and and is making promises to do some things differently. There is a stated commitment to renewed and more vigorous organizing efforts, and there is talk of reaching out to younger workers. But there is also much of the old class warfare rhetoric and railing against corporations and bankers. Employers should continue to … Continue Reading
Two different panels of the BC Labour Relations Board have made findings in favour of a union’s covert video surveillance at the IKEA store in Richmond, BC. The store has operated behind a picket line since May 13.
With over 300 unionized employees on the outside looking in, and only 27 who have decided to cross the picket line, most store operations have continued. The kids’ ballroom is closed, and the 600 seat cafeteria isn’t serving up Swedish meatballs (or anything else), but otherwise the store is open and sales are being made. That has made the union suspicious that … Continue Reading
A BC arbitrator recently held that a grievor is not entitled to have her name withheld from publication in an arbitration decision involving her termination. In Husband Food Ventures Ltd. (d.b.a. I.G.A. Store No. 11) and UFCW, Local 1518, the Union argued that British Columbia’s Personal Information Protection Act prohibited the publication of the grievor’s name, or alternatively, that the arbitrator should exercise his discretion and not publish the grievor’s name.
Arbitrator John Sanderson wrote that whether grievor’s name should be redacted from the reasons is a matter within the discretionary authority of the arbitrator to be decided … Continue Reading
The BC Human Rights Tribunal has breathed new life into the concept of what it means to further the purposes of the Human Rights Code with the result that employers have some hope in stopping forum hopping and serial litigation. Mahdi v. Hertz Canada Limited could prove to be one of the Tribunal’s most important dismissal decisions yet.
Mr. Mahdi is a long time unionized employee of Hertz. Over the course of about four years he pursued multiple grievances about his vacation rights. He had some success following hearings or by way of settlement.
Before the last of his vacation … Continue Reading
Our Federal Court has dismissed a court challenge by two unions against HD Mining. The unions claimed that the company hired more than 200 temporary Chinese workers for its coal mine in Tumbler Ridge in northeastern BC, while deliberately ignoring or passing over many qualified and willing Canadian applicants.
The International Union of Operating Engineers, Local 115, and the Construction and Specialized Workers Union claimed that HD Mining obtained labour market opinions (“LMOs”) to bring about 200 temporary foreign workers from China, after rejecting multiple Canadian applicants with exemplary qualifications. The company claimed that there was a lack of expertise … Continue Reading
The United Food and Commercial Workers Union, Local 1518 was seeking to extend its bargaining rights for the Zellers employees at Brentwood Mall. That location was one of 220 leasehold interests across the country that Target could acquire from Zellers.
The Board rejected the union application, essentially because the union had not shown a sufficient continuity between the former Zellers business and the projected Target business. The Board noted:
- Target is different from Zellers in its brand, its market and its
Employees terminated after the expiry of their collective agreement are not entitled to severance pay. That is the bottom line, and the end of the line, for the former employees of Mercury Graphics since November 8, 2012 when the Supreme Court of Canada refused to hear their appeal. The Saskatchewan Court of Appeal decision stands and provides some useful guidance for employers throughout Canada.
It is important to note that the result could be different under different collective agreement language. Some things to consider are highlighted below.
In the case of Mercury Graphics, the collective agreement term ended and the … Continue Reading