Tag archives: collective agreement

Is it possible for employers to change the terms of employment contracts?

At first sight, the answer to this question would be: only by mutual agreement. But once you take a closer look there are many ways and situations that make it possible for an employer to unilaterally change the contractual terms.

  • Collective bargaining agreements (CBAs) are binding for members of those employers’ associations (firms)  and labour unions (employees) who have concluded the respective agreements. In such case, any existing or newly concluded CBA will constitute new rules and obligations for the employee unless expressly stated otherwise in the employment contract. Since employers who are members of the employers’ associations do not
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You Can’t “Juke: The Collective Agreement’s Exclusive Jurisdiction

Part of the ‘bargain’ of collective bargaining is that bargaining unit members surrender many of their common law employment rights if they aren’t expressly provided in the collective agreement. This was the issue that recently came before the Supreme Court of British Columbia in Bruce v Cohon when former CFL wide receiver Arland Bruce brought a civil claim against the CFL, its Commissioner and a number of CFL teams alleging that he suffered concussions while playing for the BC Lions and that he was improperly permitted to continue playing.  The Defendants argued that the Court lacked jurisdiction because arbitration was … Continue Reading

Alberta’s Bill 4: Essential Services and the Supreme Court of Canada

The Alberta government recently introduced Bill 4, An Act to Implement a Supreme Court Ruling Governing Essential Services, which proposes to extend the right to strike to certain public-sector workers.

Alberta has traditionally banned strikes and lockouts involving most public-sector employees. However, in the 2015 decision Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4, the Supreme Court of Canada found that the right to strike is constitutionally protected, and thus struck down Saskatchewan’s essential services legislation on the basis that it infringed on the protected right in a variety of ways. The purpose of Bill 4 is … Continue Reading

When Collective Agreements and the ESA collide

When can a collective agreement deviate from the law? In a recent Ontario arbitration decision, the issue arose of whether a work schedule in agreed to in collective bargaining failed to comply with the Hours of Work provisions in the Ontario Employment Standards Act, 2000 (“ESA”).

Section 18 of the ESA requires employees to have certain amounts of time off per day, per week and in between shifts.  However Section 5(2) of the ESA permits a greater benefit to prevail in a collective agreement (or individual contract) that provides for more than the ESA requirements on specific subject matter.

This … Continue Reading

Collective Agreements vs. Charter Rights in Nova Scotia

When a collective agreement is negotiated, compromises are often made.  Benefits are given to some but not all employees. However, this can risk being viewed as discriminatory – depending on who receives the new benefits and who does not. In a recent case before the Nova Scotia Court of Appeal, IAFF, Local 268 v Adekayode, it was examined whether or not it was discriminatory for a collective agreement to top up federal EI benefits for adoptive parents’ parental leave but not for birth parents.

In Adekayode, the Human Rights Board had initially found that a policy of topping … Continue Reading

To name or not to name, that is the question…

Surprisingly, name tag policies have become the subject of recent litigation and labour board decisions on the topic have been hitting the news. However, the resulting litigation still leaves room for debate. In the recent decision of Prairie North Health Region v Canadian Union of Public Employees, Local 5111, an arbitration board in Saskatchewan held that the policy was an impermissible intrusion on employee privacy. However, in a previous decision of the Ontario Labour Relations Board, displaying last names on police officer badges was deemed to be acceptable.

Why were name tags allowed in one instance but not … Continue Reading

What implications does a change in the ownership of a business have for employment?

In Quebec, many legal consequences must be considered when the alienation or concession of a business occurs, especially those that are related to labour relations. More specifically, what implications does a transfer as such have on the alienated or licenced business’ employees? In order to answer this question, it is of utmost importance to first determine whether the relevant situation occurs in a unionized environment or not.

Unionized employees

If the employees that work for the alienated business are unionized, section 45 of the Labour Code[1] is henceforth applicable and provides that the alienation or the operation – by … Continue Reading

Can a failure to extend a collective wage agreement be unfair discrimination?

This article was written by Verushka Reddy, a director at Norton Rose Fulbright South Africa

The most recent amendments to the Employment Equity Act permit the CCMA to consider unfair discrimination claims in certain circumstances. Exercising its newly found jurisdiction to determine ‘equal pay for equal work’ claims, the CCMA recently considered this question in the matter between WEPU obo members v Lewis Stores (Pty) Ltd and SACCAWU obo members (unreported arbitration award, GATW3227-15, 20 November 2015).1 WEPU represented less than 1% of employees in the bargaining unit. Lewis Stores did not recognise it for any purpose. On the … Continue Reading

Freedom of Association and the Ontario Medical Association

Last week, the Ontario Medical Association (“OMA”) challenged the constitutionality of the provincial government’s decision to cut fees for doctors. The OMA is relying on section 2(d) of the Charter of Rights and Freedoms (the “Charter) which expressly protects freedom of association – a right most often invoked by trade unions. The organization is seeking to have the court declare that its members have a constitutional right to a binding dispute mechanism for conflicts arising out of compensation issues.

This is not the first time that the OMA has launched a constitutional challenge against the … Continue Reading

You are not the boss of me…or ARE you?

On August 27, 2015 the National Labor Relations Board (NLRB), in a high-impact, 3-2 decision along party lines, handed labor unions a significant advantage in their enforcement of collective bargaining laws by significantly modifying its longstanding “joint employer” standard. The ruling will surely leave countless businesses potentially liable for violations of labor laws committed by their subcontractors and franchisees.

The NLRB’s decision in Browning-Ferris Industries of California, Inc. explored the question of whether Browning-Ferris Industries (BFI) was a “joint employer” with Leadpoint, a staffing services company, in a union representation election covering Leadpoint’s employees who were placed with BFI on … Continue Reading

The New School graduate students seek review of dismissal of petition

In a decision issued on February 6, 2015 the Regional Director of the National Labor Relations Board, Region 2, dismissed a petition for union representation with The New School filed by a putative labor organization, Student Employees at The New School (SENS), which is affiliated with the UAW.

SENS filed its petition for recognition as the exclusive bargaining representative for a unit of graduate student assistants who serve as teaching assistants, teaching fellows, tutors, course assistants, research associates and research assistants at The New School, a private university in New York, New York. During the initial stages of the proceeding, … Continue Reading

NLRB passes on football players’ employee status

On August 17, 2015, the National Labor Relations Board (NLRB) declined to assert jurisdiction to determine whether the Northwestern University (Northwestern) scholarship football players should be considered employees under the National Labor Relations Act (NLRA).

In April, we reported that the Regional Director of Region 13 of the NLRB found that scholarship football players from Northwestern University (Northwestern) were “employees” under Section 2(3) of the National Labor Relations Act (NLRA), and he ordered an election so that eligible football players could vote on collective bargaining representation by the College Athletes Players Association (CAPA). Northwestern appealed, and just this week, the Continue Reading

Clear language trumps fairness: Be clear in collective agreements to avoid double dipping

A 7 year battle over a day of paid personal leave has finally reached a conclusion.

The dispute centred around the interpretation of the collective bargaining agreement governing a unionized employee of the Canada Revenue Agency (CRA). The employee, during the span of one fiscal year, moved from one position within the Agency to another. Each position was in a different bargaining unit with its own collective agreement. Each collective agreement entitled workers to one paid personal day per fiscal year. The employee took a personal day under each agreement (in the same year). The Agency refused to … Continue Reading

Ontario teachers ordered back to school after illegal strike

The government’s new School Boards Collective Bargaining Act, which passed last year, has become the subject of controversy. Secondary school teachers across Ontario have been on strike for multiple weeks keeping approximately 70,000 students out of the classroom.

The three school boards have taken this issue of these local strike’s legality to the Ontario Labour Relations Board (OLRB). The school boards sought a declaration that the local strikes in Durham, Peel, and Sudbury violate the new bargaining system as they are striking over provincially negotiated issues. The Ontario Secondary School Teachers’ Federation (OSSTF) rejected this argument on the basis … Continue Reading

Estoppel applied by Saskatchewan Court of Appeal to prevent compensation change

In the recent decision of Viterra v Grain Services Union, 2013 SKCA 93 the Saskatchewan Court of Appeal reaffirmed the power of arbitrators to hold parties to past practice in applying a collective agreement through the doctrine of estoppel.

This case considered the employer’s long-standing practice of paying of paying certain groups of employees vacation pay on their overtime hours at “vacation entitlement rates”. Other employees were paid at the minimum rates required by the Canada Labour Code. The original employer, Saskatchewan Wheat Pool, began this practice. Saskatchewan Wheat Pool’s collective agreements did not specify the rate of … Continue Reading

Der arbeitsrechtliche Hintergrund der derzeitigen Streiks bei der Bahn

Arg strapaziert wird derzeit der Geduldsfaden der Bahnkunden – über Tage hinweg legten Gewerkschaften den Bahnverkehr mit Streiks lahm. Da eine Einigung der Lokführergewerkschaft GdL bzw. der Eisenbahnergewerkschaft EVG mit der Deutschen Bahn noch immer nicht in Sicht ist, ist zudem bis Weihnachten mit weiteren Streiks zu rechnen.

Doch was ist der Hintergrund der verhärteten Fronten? Neben den üblichen „Streik“punkten Gehalt und Arbeitszeit, geht es dieses Mal um eine ganz grundsätzliche Frage: Welche Gewerkschaft verhandelt für welche Berufsgruppe (z.B. die der Bordgastronomen), wenn sich in beiden Gewerkschaften Angehörige dieser Berufsgruppe finden? Die Gewerkschaften GdL und EVG konnten sich im … Continue Reading

Conciliation travail-famille – endeavour to achieve a work life balance in Quebec

In Quebec, time devoted to paid work has considerably increased over the years. Moreover, the number of single-parent families and households where both spouses work is growing. Consequently, we are left with an increasing imbalance between work and family obligations. Quebec is no exception to this rule. Indeed, the Bureau de Normalisation du Québec (BNQ) acknowledged that the province is dealing with a widespread work-life imbalance.

Consequently, it comes as no surprise that it has become standard for employers to publicize the work-life balance that they offer.

In response to this dilemma, Quebec instituted the four-level Work-Family Balance accreditation in … Continue Reading

Statutory Rest Times May Not Apply in Unionized Workplaces

Section 18 of the Employment Standards Act, 2000 (“ESA”) provides that employees must be given at least 11 consecutive hours of rest between shifts. Three recent decisions outline different scenarios that may exempt employers from this requirement:

  1. (1) where the employer qualifies for an exemption laid out in s. 19 of the ESA;
  2. (2) where a collective agreement provides protections superior to those of the ESA; and
  3. (3) where the employer’s entire industry is explicitly exempt under the ESA Regulations.

The decision in Unifor Local 938 & Union Gas Ltd. 117 CLAS 129 (“Unifor”) involved an employer’s implementation … Continue Reading

Grievance: a provable claim within the meaning of the Companies’ Creditors Arrangement Act and Bankruptcy and Insolvency Act

This post was contributed by Philippe Levac (Norton Rose Fulbright’s Montréal office)

Norton Rose Fulbright’s Employment and Labour Team in Montréal raised a preliminary objection against an arbitrator’s jurisdiction on the basis of orders rendered pursuant to the Companies’ Creditors Arrangement Act (“CCAA“), which was upheld and led to the dismissal of the grievance.

In Syndicat Unik La Tuque and Rocktenn – Container Canada L.P./LAT, Rocktenn’s predecessor filed for protection under the CCAA, under which the Ontario Superior Court (“Court“) rendered a number of orders in 2009-2010. One of these orders provided that creditors who … Continue Reading

The Charter of Values in Québec

In the wake of the Bill 60 debates currently taking place in Quebec, we suggest an analysis of the possible consequences, with regards to labour relations, of the Charter affirming the values of State secularism and religious neutrality and of equality between women and men, and providing a framework for accommodation requests (“Charter“). Indeed, it is clear that this Bill may change the rules now applicable in the Quebec workplace.

According to the Charter, which is currently under general consultation, an employee of a public body must not, in the exercise of his or her functions, wear an … Continue Reading

Employers Require Evidence to Support Restrictions on Tattoos and Piercings in the Workplace

This post was contributed by Peter MacTavish, Associate, Norton Rose Fulbright Canada LLP (Ottawa) and Brittany Hinds, summer student, Norton Rose Fulbright Canada LLP (Ottawa)

A recent arbitral decision invalidating the Ottawa Hospital’s restrictions on employee piercings and tattoos is yet another reminder that employers must have objective evidence to support the implementation of professional dress standards in their workplaces.

Background of the Case

The Ottawa Hospital implemented a new dress code policy in March 2011.  The policy required that hospital employees cover any large tattoos and remove any excessive, visible body piercings.  The union filed a grievance challenging … Continue Reading

French Supreme Court rules flexible working time for companies subject to the “SYNTEC” CBA invalid

Over the past few years, French case law has subjected to increasingly strict scrutiny employers using “forfait jours”, which is a specific method of working time for autonomous executives (whose working time is calculated as a number of days over the year rather than a number of hours per week).

In 2011, the French Supreme Court held that such method could only be used if the relevant collective bargaining agreement permitting recourse thereto included provisions protecting employees’ right to rest periods and health and safety measures.

In a new development, the Supreme Court has recently applied such … Continue Reading

When is a true casual employee not a true casual?

In an important decision that effectively reverses how employers assess whether their award or agreement covered employees are ‘true’ casual employees under the Fair Work Act 2009 (FW Act), the Full Bench of the Fair Work Commission (the Commission) has held that the characterisation of “casual employee” should be solely based on the specific definition in the relevant enterprise agreement or modern award, and not according to principles in the general law.

In Telum Civil (Qld) Pty Limited v Construction, Forestry, Mining and Energy Union [2013] FWCFB 2434 (Telum) the Commission considered whether the employees … Continue Reading

The ongoing dispute over the Victorian Building & Construction Code and Guidelines

Eco Recyclers Pty Ltd (Eco), a contractor that performs demolition work in the construction industry, has become drawn into a larger dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and the Victorian Government, in relation to the Government’s “Implementation Guidelines to the Victorian Code of Practice for the Building and Construction Industry” (the Guidelines), which, along with the Code of Practice itself, applies to construction work undertaken for the Victorian Government.

The Code and Guidelines specify that any expression of interest or request for tender must include an undertaking to apply the Code … Continue Reading