Industrial Relations in Canada, Second Edition

Instructor’s Manual to Accompany McQuarrie/Industrial Relations in Canada, Fourth Edition

Instructor’s Manual Chapter 1 1-1

CHAPTER 1

An Introduction to Industrial Relations in Canada

LECTURE NOTES

Chapter 1 Objectives At the end of this chapter you should be able to:

Identify the various terms used to describe union-management relationships

Describe how other academic subjects might address industrial relations issues

Identify the major pieces of legislation that regulate Canadian industrial relations and explain the common elements among those laws

Understand how other kinds of Canadian legislation affect industrial relations

Identify some of the major demographic and statistical features of Canadian union membership



What Is Industrial Relations?

Refers to the relationship between a union and an employer Union: organization run for and by workers Employer: organization that workers in union work for Employer can also be called “management”, “the company”, or “the

organization”, but “employer” is most common term because it reflects employer-employee relationship that is the basis of union’s connection to workplace

Union’s primary role is to represent workers in interactions with the employer Union is given this power through Canadian provincial and federal law

The expression industrial relations (IR):

Is the preferred Canadian term for union-employer interactions - Used by federal government since 1919 Royal Commission to Enquire into

Industrial Relations in Canada

Is a more appropriate description than labour relations (LR) - “Labour relations” comes from “organized labour”, a term used to describe

unions

Emphasizes that there are two parties - “Labour relations” only focuses on labour side of union-employer relationship - “Industrial relations” also indicates that union-employer relationship is within

the context of an industry or workplace

One widely used definition of “industrial relations” contends that it is a broad and interdisciplinary field of study and practice that encompasses all aspects of the employment relationship

More appropriately as a descriptor of union-employer relationship - In common usage “industrial relations” refers to employer-employee

relationships in unionized workplaces - Study of non-unionized workplaces is usually called “employment

relations” or “human resource management” (although human resource management (HRM) can and does deal with issues in unionized workplaces)



- Much I.R. research on non-unionized workplaces investigates how non-union workplaces replicate or adopt structures of unionized workplaces

I.R. differs from H.R.M. primarily in that I.R. deals mostly with unionized workplaces, while H.R.M. deals with both unionized and non-unionized workplaces

No Single, Unifying Theory of Industrial Relations

I.R. issues may interest historians, psychologists, economists, and others - E.g., historian: events leading to formation of a union or study of an industrial

relations conflict - E.g., psychologist: development or changes of individual attitudes toward

union or employer - E.g. economist: effect of unionized wage rates on industry wage rates or cost

of living

Each would approach the topic differently - Thus there is no single theory that completely explains all events in I.R. - Some theories may even contradict or be in conflict with each other

No single theory could explain every possible situation - I.R. contains perspectives from multiple disciplines - Union-employer relationships involve complex work and work arrangements,

and take place within complex organizations – and therefore difficult to have a single theory

- Should instead recognize that different perspectives help to make a richer contribution to how we understand union-employer relationship

Why Study Industrial Relations?

Common student attitudes: Unions no longer needed because workers are treated fairly Only part of Canadian workforce is unionized, so no need to study unions if you

might never join one Personally opposed to unions and would never join one



All valid statements, but there are several reasons to study I.R. even if you hold some or all of these beliefs:

1. In many workplaces and occupations, union membership is a prerequisite to employment Attaining a certain job or pursuing a certain career may require joining a union

regardless of one’s personal views on unions

2. Non-union members are often affected by the actions of unions and unionized employers E.g., during Air Canada’s 2012 labour disputes between unionized workers

and the employer (Air Canada), the impact of the conflict extended to other parties: travellers whose trips were disrupted; businesses whose products and supplies were not delivered on time, etc.

Thus important to understand unions and their activities even if you are not part of a union

3. Canadian law makes unionization an option for nearly every kind of worker

Not every workplace is perfect and unions may have a role to play in affecting worker satisfaction and working conditions

4. Knowing the history of unionization helps explain the modern Canadian

workplace and the laws that govern it Unions have been influential in obtaining e.g. minimum wage laws,

occupational health and safety standards

5. Knowledge of I.R. is a benefit for anyone seeking employment in human resource management or related fields

- Ability to work within and understand both unionized and non-unionized environments is a much sought after skill for employers

6. It is easier to contest unions if you know about them

- If you want to oppose a union, it’s useful to know how they operate, what laws govern their operations, and what employers can and can’t do to counteract unionization in the workplace



The Legal Framework Jurisdiction

Term means which government or law-making body has responsibility for legislation regulating a particular issue

Depending on the situation, union-employer relations may be governed by federal or provincial legislation

Until the mid-1920s, all I.R. issues were covered by federal laws - 1867 British North American Act concentrated most Canadian legislative

power at the federal level - Deliberate choice by founders of Canada because they wished to avoid

American experience of Civil War caused by decentralization of legislative power

In 1925, case of Snider vs. Toronto Electrical Commission established that industrial relations were mostly a provincial responsibility - The outcome of this case required each province to develop its own labour

relations legislation - There is now a federal labour relations act AND a separate labour relations

act in each province



Federal Jurisdiction How to determine if a specific union-employer relationship is governed by federal or provincial labour law?

If an employer’s business has an interprovincial component – i.e., it regularly crosses provincial lines – it is covered by federal labour laws

Examples are banking, telecommunications, broadcasting and interprovincial transportation

Employees of the federal government and some Crown corporations are also covered

Provincial Jurisdiction Provincial labour law covers businesses that operate within the boundaries of that province (intraprovincially)

Covers 90 per cent of union-employer relationships in Canada



Types of Laws Covering Labour Relations Labour Relations Laws Federal and provincial labour relations acts share common characteristics. They:

Establish certification procedures covering the recognition of a union in a workplace - Discussed in more detail in Chapter 5

Set a minimum term for collective agreements between employer and union; usually one year

Establish procedures for legal strikes and lockouts - Procedures usually include regulations for strike or lockout-related activities

e.g., picketing, replacement workers - Discussed in greater detail in Chapter 9

Establish ways of resolving disputes during the term of the collective agreement - These are usually called grievance resolution procedures - Discussed in more detail in Chapter 11

Define unfair labour practices - Unfair labour practices are behaviours by union or management during e.g.,

certification campaigns - Discussed in more detail in Chapter 6

Create labour relations board, which has quasi-judicial status - Specific name varies by jurisdiction Its purpose is to administer and enforce

labour relations legislation - Resolves disputes related to the application of labour relations legislation and

provides services such as assistance in grievance resolution - Rules on cases brought before it and issues interpretations of the law - Board has Quasi-judicial status because, like civil or criminal court, it rules

on cases and the government funds its operations, but the government does not control its operations. Unlike civil or criminal court, labour relations board can suggest remedies as well as impose solutions. It also has broader



guidelines than other courts on what evidence can be submitted when a case is heard

- Board members are union and management representatives, all appointed by government

- Board members are appointed to panels to hear cases; usually one union representative and one management representative, who then pick a third member. (There can also be single-member panels)

- Boards also have chairs and vice-chairs appointed by government, and staff members who assist board members in their work and provide services to public



Public Sector Labour Relations Legislation

In most Canadian jurisdictions, separate labour relations acts govern public sector employees - Public sector employees = employees who work for government or for

affiliated organizations e.g. Crown corporations

Some jurisdictions have separate acts for para-public or quasi-public sector employees (employees who work for government-funded organizations, but don’t directly work for the government.) - Examples of para-public/quasi-public sector employees: court workers,

health-care workers, university/college employees

Reasons for separate labour legislation

Unique employment relationship – employer sets rules, holds more power - Government is the employer but government is also responsible for creating

and administering labour relations legislation. Other employers do not have this regulatory power.

- Separate public sector labour legislation recognizes the unique status of government as employer

Public and para-public employees often provide vital services: fire protection, social services, health care - These services are needed for communities to function effectively - Separate legislation allows government to establish rules specific to these

types of employees, e.g. restrictions on ability to strike

In some jurisdictions, public sector disputes are heard by the same labour relations board as private sector disputes Other jurisdictions provide for separate public sector board

Where this exists, public sector labour relations board has same structure and function as “regular” labour relations board, but public sector board’s mandate is limited to interpretation/administration of public sector labour law only



Occupation-Specific Labour Relations Legislation Some jurisdictions have additional labour relations legislation that applies to particular occupations or industries

Usually addresses specific conditions in occupations or industries that would not be adequately covered under regular labour relations legislation - examples e.g. police, fire, construction

Other Relevant Legislation Employment Standards Legislation

Exists in every jurisdiction

Establishes minimum standards for working conditions in both union and non-union workplaces through and Act or Code

Usually covers e.g. working hours, minimum wages, holiday time, and time required for notification of termination or layoff

Union collective agreements must not contain terms inferior to employment standards legislation - E.g., even if both parties agree to a minimum wage lower than that

established by employment standards act, this would not be a legal agreement

- Parties can negotiate better conditions than those specified in employment standards act (and usually do) but employment standards act ensures basic standards for all workplaces



Human Rights Legislation

Exists in every jurisdiction

Forbids discrimination against individuals on the basis of gender, ethnic origin, sexual orientation, etc.

“Discrimination” defined as:

Refusal to grant access to accommodation, contracts, goods and services, or employment because of an identified personal attribute (e.g., ethnic origin), known as protected grounds or prohibited grounds - E.g., cannot refuse to rent an apartment to someone because they are

Aboriginal

Members of particular groups may be legally excluded from employment in some cases. (e.g., A women’s prison may determine that male correctional officers are not suitable for a women’s facility)

This can only be done if there is an essential part of the job that can only be performed by members of certain groups e.g., it would be inappropriate for male prison guards to do body searches on female prisoners

Two kinds of discrimination:

Intentional discrimination

Systemic discrimination Intentional discrimination:

Direct and deliberate refusal based on prohibited grounds E.g., previous example of refusing to rent an apartment to a Black person

Systemic discrimination

- Also called unintentional, constructive, or adverse impact discrimination

Occurs when an organization or individual uses policies or practices that have the effect of discriminating against groups or individuals



- E.g., a policy requiring job applicants to be a certain height might eliminate many women and members of certain ethnic groups from consideration, even if they were otherwise qualified

Can occur even if there is no intent to discriminate - E.g., in example above, there might not be an explicit intent to remove

some women and members of certain ethnic groups from consideration, but the policy would have the effect of discriminating against them

- If a job requirement has such restrictions, employer needs to be able to show that restriction is related to some essential part of the job (e.g., height specification might be necessary for a worker to be able to effectively perform a certain job requirement)

Human Rights Legislation Implications for unions and employers:

Collective agreements must not intentionally or systemically discriminate - Language in collective agreement must not discriminate on protected

grounds, e.g., cannot say men will be given priority in promotions, even if both parties agree to this language

Unions and employers must not act in a discriminatory fashion - Unions must represent all of their members fairly, e.g., a union could not

refuse to pursue an employee’s complaint simply because employee was Asian

Human Rights Commission

Structure and function similar to labour relations board - Also has quasi-judicial status

Administers and enforces only human rights legislation - Hears and resolves complaints about discrimination, and also offers

services to public e.g., education Complaints

Individuals may file complaint with relevant human rights commission



If it is substantiated, the Commission will investigate the complaint and suggest a remedy

Union members who feel their union has discriminated against them may file complaint with labour relations board

Unions have “duty of fair representation” and union members who feel union is discriminating against them can file a complaint with labour relations board alleging this duty has been breached

Duty of fair representation discussed in Chapter 11



The Charter of Rights and Freedoms

Guarantees certain basic rights and freedoms to all Canadians contained in the federal Constitution Act (1982)

Takes precedence over all other laws, with two exceptions:

- Laws that can be justified as imposing reasonable limits in a “free and democratic society”

- Laws passed by provincial legislatures that invoke the “notwithstanding” provision

The Charter of Rights and Freedoms The Charter broadly defines a number of fundamental rights - Broad definitions do not include specific guidance on practical application - Applicability has mostly been determined through outcomes of “Charter cases” Major cases involving industrial relations issues have focused on these rights:

Freedom of association - E.g., freedom to join groups or to be associated with individuals of one’s

choice

Freedom of peaceful assembly - E.g., freedom to participate in demonstrations and public gatherings



Freedom of thought, belief, opinion, and expression - E.g., freedom to express views through print or other means of

communication

The Charter of Rights and Freedoms Key Charter cases:

Dolphin Delivery, 1982. Supreme Court of Canada (SCC) ruled Charter provisions do not apply to court orders resolving common-law-based disputes between private parties - Employees involved in dispute with employer wanted to picket at a business

not on strike but doing business with their employer - Lower court granted the business an injunction to stop picketing; employees

argued this restricted their freedom of expression, association and assembly - Supreme Court ruled that this situation would not be covered by Charter

provisions because it involved a dispute based on common law and not Charter law

The “labour trilogy,” 1990. SCC ruled that the right to belong to a union is protected by the Charter but the rights to strike and bargain collectively are not - Supreme Court ruled that the right to belong to a union is part of right to

belong to, establish, maintain, and participate in an association - Supreme Court ruled that rights to strike and to bargain collectively are rights

created by law and not fundamental freedoms protected by Charter

Lavigne, 1991. The Supreme Court ruled that mandatory union dues do not violate the Charter - College instructor objected to portion of his mandatory union dues being used

to support organizations he objected to - Instructor alleged that this violated his freedom of association, so question in

case was whether “freedom to associate” also implies “freedom to not associate”

- Supreme Court ruled that all individuals in workplace received benefits from union dues (e.g. representation in bargaining), so mandatory dues payment did not violate Charter provisions



- Supreme Court also ruled that as unions are democratic organizations, members are able (through voting or participation in union activities) to control how dues are spent

The Charter of Rights and Freedoms One further case…

Dunmore v. Ontario (Attorney-General), 2001. The Supreme Court ruled that the right to freedom of association was violated if an entire class of workers – e.g., farm workers – was excluded from protection under labour legislation - In 1995 Ontario govt. repealed a law permitting farm workers to unionize - Gov’t.’s reasoning was that unionization would raise wages and cause

financial difficulty for struggling family farms - Supreme Court did not accept this reasoning

This subsequent law was the subject of another legal challenge that reached the Supreme Court; in that case (Ontario (Attorney General) v. Fraser), the court ruled that the Ontario law was constitutional, and dismissed the challenge.

Two more recent Supreme Court cases:

- British Columbia health care unions (2007): BC government passed a bill unilaterally removing provisions forbidding outsourcing from collective agreement between unions and government. Supreme Court ruled that the right to collective bargaining was covered by the freedom of association



guaranteed by the Charter. The government was ordered to pay $85 million for retraining workers who lost their jobs as a result of the legislation.

- Walmart (2009). Walmart employees in Jonquiere, Quebec, lost their jobs

when the store was closed after a unionization attempt. Employees brought a lawsuit claiming they lost their jobs as a result of union activity and was therefore a change in their working conditions. The Supreme Court dismissed the case but the workers re-file their case under a different section of Quebec’s labour code. In 2014 the Supreme Court ruled in favour of the workers since Walmart was unable to prove that the store was unprofitable. Walmart was ordered to pay compensation to the workers.

These ruling provide some indication of how the general principles expressed in the Charter may be applicable in the workplace. It remains difficult to specify the implications of the Charter provisions for union-employer relationships, as they remain untested and unaddressed at the Supreme Court of Canada.



Characteristics of the unionized workplace in Canada

A unionized workplace is more likely to be in the public sector

A unionized workplace is more likely to be relatively large

Rates of unionization similar across broad industrial categories, but there are wide variations across different occupations

Union membership is slightly higher among women and older workers

Union members are relatively well-educated

Union members are more likely to be full-time employees



Overview of Text Chapter 1

Introduces theoretical and historical background, explains evolution of Canadian workplaces and relevant legislation

Chapter 2

Overview of theories and research addressing creation of unions, and how unions’ purposes have changed over time

Chapter 3

Historical events and forces affecting evolution of Canadian labour relations

Changes in labour legislation and the effects of globalization on workplaces


Structure of Canadian unions: national, provincial, municipal and local organizations

Chapter 5

Why employees may or may not wish to join a union Chapter 6

How a labour relations board assesses a certification application



Chapter 7

The effects of a certification order Chapter 8

The four stages of collective bargaining Chapter 9

Strikes and lockouts Chapter 10

Third-party intervention: conciliation, mediation and arbitration


Grievances Chapter 12

Changes during the collective agreement: successorship; raiding and union mergers; decertification; technological change and workplace restructuring




Recent changes in the Canadian workplace and their implications for unions and employers

Recent changes to labour legislation and their implications for the future of union-employer relationships

Effects of globalization on industrial relations



SUGGESTED ANSWERS TO DISCUSSION QUESTIONS

1. Arguments against using “industrial relations” as term to describe union-

management relationships: other terms can be used, such as “labour relations” may be confused with “labour law” or “labour legislation” unclear whether it should refer to both unionized and non-unionized workplaces

Arguments for using “industrial relations” as descriptive term: preferred term in Canada emphasizes that there are two parties in the relationship indicates that relationship occurs in the context of a workplace non-unionized workplaces described by term “human resource management” much research on non-unionized workplaces focuses on how those workplaces

replicate structures found in unionized workplaces, so non-union “industrial relations” research is closely related to research on unionized workplaces

2. The field of industrial relations (I.R.) can be characterized as multi-disciplinary

because it has drawn on historical research in many other fields (e.g., law, political science, economics) and because the topics it addresses are also studied in other academic fields. This can be negative because it means there is no single unifying theory in the field, and thus no definite “right” answer to industrial relations problems, but it is also positive because the insights gained from the various fields related to I.R. give a richer understanding of complex situations.

3. The term “industrial relations” usually is used to refer only to unionized workplaces.

The term “human resource management” usually is used to describe both unionized and non-unionized workplaces. However, both deal with workplace issues such as procedures for hiring, discipline, and policies regulating promotion.

4. Canadian labour legislation generally includes the following characteristics:

procedures to legally recognize the union as the representative of employees in a workplace (certification)

a requirement that collective agreements have a minimum term (usually one year)

procedures that must be followed for a strike or lockout to be legal, and some language governing related activity such as picketing or the use of replacement workers

procedures to resolve disputes during the term of the collective agreement (grievance procedure)

outlines for acceptable behaviour by unions and employers (unfair labour practices)

establishment of a labour relations board to administer and enforce labour relations law



5. The “interprovincial component” determines whether an organization is under the jurisdiction of federal or provincial labour law. If an organization’s activities regularly cross provincial boundaries, then it will be under the jurisdiction of federal labour law.

6. Some of the reasons for the current characteristics of Canadian unionization:

Unionized workplaces are more likely to be in the public sector. This is because of extensive organizing in the Canadian public sector in the 1960s and a relatively low rate of decertifications in this sector.

Unionized workplaces tend to be larger than non-unionized workplaces. This is because unions are more likely to organize larger workplaces or companies, because of the larger increase in membership that results from a successful organizing campaign.

The rates of unionization are similar across broad industrial categories. Union membership is higher among women than among men. Traditionally, men

have more consistent work patterns than women (men generally have fewer extended absences from the workforce) and therefore have more opportunity to be union members, Men tend to work in industries and occupations that have traditionally higher rates of unionization (e.g., trades, production). However, women tend to work in industries and occupations that have not been affected as much by recent economic trends, so union membership among women has not decreased as much as union membership among men.

Union membership is higher among older workers (45 and over) than younger workers. Since the overall rate of unionization has been slightly declining over the past 30 years or so in Canada, older workers have been in the workforce during the time when unionization was more prevalent. Also, younger workers tend to enter industries, occupations and work arrangements with low rates of unionization (e.g., service work, part-time work).

Union members are relatively well educated. This can be attributed to the high rate of unionization in the public sector, which includes many professional jobs and jobs in which post-secondary education is a requirement. Also, the levels of education in the workforce as a whole are rising.

Union members are more likely to hold full-time jobs than part-time jobs. This is because unions prefer to target organizing campaigns toward employees in stable work arrangements who will be long-term union members. Also, part-time employment is more common in sectors of the labour market with low rates of unionization (e.g. service jobs).



TEACHING NOTES FOR CHAPTER 1 EXERCISES

1. This exercise asks students to describe their previous experiences with unions and

their feelings about unions and industrial relations. This exercise is useful for students in benchmarking their knowledge at the start of the course, and giving them a comparison point at the end of the course to assess what they have learned. This can also be a useful exercise for the instructor in assessing the class members’ background in industrial relations, and to determine at what level of understanding the course material should be directed. This exercise is also useful to determine whether any class members have extremely strong pro- or anti-union attitudes. In many classes there will be a range of experiences and a mix of attitudes. Sometimes students with strong attitudes will be extremely vocal in arguing their position, and/or may be concerned that they will not do well in the course if their attitudes do not match the instructor’s (or their perception of what the instructor’s attitudes are). It may be worthwhile at the start of the class to establish (as mentioned in the book) that the purpose of the course is not to force students to change their minds about industrial relations, but to present material that will assist them in developing informed opinions. It may also be worthwhile to establish some ground rules about respectful discussion and acceptable behaviour toward other class members, since discussion on industrial relations topics can become heated.

2. This exercise asks students to think about the benefits and drawbacks of unionization for workers and for employers. Some commonly cited reasons are: For workers: Benefits

collective agreement as common set of rules for workplace usually higher wages and better benefits than non-unionized workplace consistent and fair treatment for all workers; formal appeal process for dispute

resolution (grievance procedure) social benefits from union membership and “belongingness”; union as source

of information/support when problems arise Drawbacks

collective agreement may not be flexible enough to accommodate all workplace or worker situations

bureaucracy, inflexibility, dysfunction within union itself, resulting in poor representation for membership and member dissatisfaction with union activities

benefits/payback from regular payment of union dues not always apparent perceived excessive cost of union dues impact that job actions e.g., strikes, have on individual members



For employer: Benefits

collective agreement establishes mutually agreed upon rules for workplace collective agreement provides consistent guidance for management in

running workplace employer only has to negotiate terms of employment and workplace rules with

one unit instead of with each individual worker mutually agreed upon process available for dispute resolution (grievance

procedure) Drawbacks

lack of flexibility or discretion in managing operations (have to follow rules in collective agreement)

inherently adversarial nature of relationship with union time and effort needed to negotiate collective agreement possible harm to business if strike or lockout occurs extra cost of higher wages and better benefit in comparison to what non-union

employers usually pay Going through this exercise will help students to identify the amount of knowledge they have about how unionized and non-unionized workplaces operate. Listing the sets of “pros” and “cons” will also introduce many issues that will be discussed later in the course.



WEBSITES WITH MATERIAL RELATED TO CHAPTER 1 TOPICS

Industrial Relations Research http://www.cira-acri.ca/ The website of the Canadian Industrial Relations Association, the association for Canadian industrial relations researchers and professors. Supreme Court of Canada http://www.scc-csc.gc.ca Employment Standards Acts Human Rights Acts The relevant legislation for each jurisdiction can be found through the government’s home pages. It is usually necessary to know the name of the specific piece of legislation to locate the complete text (see Tables 1-1 and 1-2). Federal: http://www.hrsdc.gc.ca/eng/labour/labour_law/index.shtml Alberta: http://www.gov.ab.ca British Columbia: http://www.gov.bc.ca Manitoba: http://www.gov.mb.ca New Brunswick: http://www.gnb.ca Newfoundland & Labrador: http://www.gov.nf.ca Nova Scotia: http://www.gov.ns.ca Ontario: http://www.gov.on.ca Prince Edward Island: http://www.gov.pe.ca Quebec: http://www.gouv.qc.ca Saskatchewan: http://www.gov.sk.ca These sites also contain links to each jurisdiction's human rights commissions and employment standards tribunals, which give information on filing complaints and the resolution of complaints. The Canadian Legal Information Institute site also has a section for each jurisdiction which includes links to the full texts of legislation, and links to the jurisdiction’s labour relations board, human rights commission, and employment standards tribunal. http://www.canlii.org/en/

http://www.cira-acri.ca/

http://www.scc-csc.gc.ca/

http://www.hrsdc.gc.ca/eng/labour/labour_law/index.shtml

http://www.gov.ab.ca/

http://www.gov.bc.ca/

http://www.gov.mb.ca/

http://www.gnb.ca/

http://www.gov.nf.ca/

http://www.gov.ns.ca/

http://www.gov.on.ca/

http://www.gov.pe.ca/

http://www.gouv.qc.ca/

http://www.gov.sk.ca/

http://www.canlii.org/en/

Industrial Relations in Canada, Second Edition

Documents

Transcript of Industrial Relations in Canada, Second Edition