A SUMMARY OF CHANGES TO LABOUR RELATIONS UNDER THE SASKATCHEWAN EMPLOYMENT ACT

Transcription

1 A SUMMARY OF CHANGES TO LABOUR RELATIONS UNDER THE SASKATCHEWAN EMPLOYMENT ACT Keir J.M. Vallance The W Law Group Saskatoon, Saskatchewan CONTENTS Topic Page Expanded role of the LRB 1 Certification and Scope 2 Decertification 3 Collective Bargaining 4 Bargaining in Specific Sectors 4 Industrial Conflict 5 Internal Union Matters 7 Essential Services 8

2 Page 1 This paper is meant as an introduction and overview to the changes to labour relations contained in The Saskatchewan Employment Act (the SEA ). Other presenters will provide analysis and greater detail regarding particular sections of the SEA. For the most part only changes from the current regime are mentioned. Note that as Bill 85 is not yet law, the final version of the SEA may differ from the version currently before the Legislature. Labour Relations provisions are found in Part VI of SEA. Essential Services will be under Part VII, and the expanded role of the LRB regarding employment standards and occupational health and safety are under Part IV. Expanded Role of the LRB Under Part IV of the SEA, the Labour Relations Board assumes new responsibilities relating to labour standards and occupational health and safety. The LRB is now responsible for assigning adjudicators to hear hearings and appeals under part II (Employment Standards) and appeals under Part III (OH&S). 1 The LRB, rather than the Courts, are now also responsible for hearing appeals from such adjudications. The Board is to hear appeals of employment standards adjudications 2 and appeals from OH&S appeals. 3 Such appeals may only be on points of law. Appeals from decisions of the Board in such matters are made to the Court of Appeal and require leave of that Court. 4 1 SEA, s. 4-3, replacing s. 19 of the LSA (under which adjudicators are appointed by the minister) and ss. 48 and 48.1 of the OHSA. 2 SEA s. 4-8(1). 3 SEA, s. 4-8(2) 4 SEA s. 4-9.

3 Page 2 The powers that the Board currently holds under the Trade Union Act (the TUA ) are for the most part retained under the SEA. 5 There are a few changes; for instance the Board now has express authority to order the transfer of a union-administered or union-controlled benefit plan, or to require or facilitate the continuation of benefits, if a union is decertified or if a new union assumes representation of a group of employees. 6 The Board also now has express authority to make regulations prescribing its own rules of procedure and forms. 7 Certification and Scope There are significant changes to the definition of employee in the SEA. Currently the definition of employee excludes employees exercising authority and functions of a managerial character or who deal with confidential industrial relations matters. 8 The latter exclusion has been significantly expanded in the SEA. 9 The SEA also now adds supervisory employee as a defined term 10. Supervisory employees may not be in the same bargaining unit as those they supervise 11 unless the union and employer make an irrevocable election to have them included 12. Otherwise, supervisory employees may belong to a bargaining unit composed entirely of supervisory employees SEA Part VI, Subdivision 2 (general powers and duties), Subdivision 3 (powers re: applications and orders) and subdivision 4 (powers re: applications and hearings), replacing several sections of the TUA, including ss. 5, 5.1, 5.2, 5.3, 10, 18, 24, and SEA, s (4) and (5). 7 SEA, s TUA, s. 2(f). 9 SEA, s. 6-1(1)(h). 10 SEA, s. 6-1(1)(o). 11 SEA, s. 6-11(3). 12 SEA, s. 6-11(4)(a). 13 SEA, s. 6-11(4)(b).

4 Page 3 The SEA contains provisions regarding voluntary recognition of a union by an employer in a prescribed industry. 14 Presumably voluntary recognition agreements may also, as now, exist outside of the statutory regime. Certification continues to require secret ballot votes among the employees 15 and continues to require evidence of 45% support prior to any vote being ordered. 16 The SEA removes the existing deemed successorship provision 17 regarding cafeteria, janitorial, or security services in a government-owned building. Decertification The SEA now allows an employee within a bargaining unit, or an employer, to apply for decertification on the grounds of abandonment. 18 An employee or an employer may also apply for decertification if the union no longer exists or ceases to be a union. 19 Currently a decertification application must be brought during the open period prior to the expiry of the term of a collective agreement. 20 Under the SEA, decertification based on abandonment, the union ceasing to be a union, or allegations that a Union engaged in an Unfair Labour Practice prior to certification may be brought any time. Decertification application based on loss of support within the bargaining unit 21 may be brought any time after 24 months from the date of certification, but cannot be brought within 12 months of a prior unsuccessful decertification application based on loss of support SEA, s. 6-18(1). 15 SEA, s and SEA, s TUA, s SEA, s SEA, s TUA, s. 5(k). 21 SEA, s (4). 22 ibid.

5 Page 4 Collective Bargaining The period in which notice to bargain is to be given has increased from 30 to 60 days prior to the expiry of the term of the collective agreement to 60 to 120 days. 23 The duty to bargain in good faith is expressly set out in the SEA. 24 part of the definition of bargaining collectively. 25 ) (Previously it appeared as For newly-certified bargaining units, the first collective agreement provisions 26 are maintained 27 ; however, a first collective agreement under this section has a mandatory minimum term of two years. 28 In situations where an employer intends to introduce changes into the workplace, the SEA now differentiates between technological change and organizational change, 29 which under the current Act are both included under technological change. 30 A process similar to the existing process continues to apply when an Employer intends to introduce such changes, however, regardless of whether the change is organizational or technological. 31 Bargaining in Specific Sectors Teachers and police officers maintain their separate statutory labour relations regimes and are not incorporated into the SEA. However once the parties reach the point of impasse in collective bargaining they will be subject to the same rules regarding mediation, conciliation, etc. as other sectors. (See Industrial Conflict, infra.) 23 SEA, s SEA, s TUA, s. 2(b). 26 TUA, s SEA, s SEA, s SEA, s. 6-55(1). 30 TUA, s SEA, ss to 6-58.

6 Page 5 Similarly, while firefighters are incorporated into the SEA 32 the current rules regarding collective bargaining generally apply (including referral of stalled collective bargaining to binding arbitration). However the new processes applicable at an impasse in bargaining apply. 33 The provisions regarding the construction industry 34 remain much the same as under the current Construction Industry Labour Relations Act. In the health sector, 35 the SEA contains express recognition of a multi-employer bargaining structure in health care. 36 All health care employers (including all regional health authorities, the Saskatchewan Cancer Agency, and any employer prescribed in the regulations 37 are to be required to bargain through a single designated employer organization. 38 Industrial Conflict The SEA maintains the existing definitions of strike and lockout. 39 to take strike action or impose a lockout during the term of a collective agreement. 40 It continues to be illegal However, the rules regarding industrial action have changed significantly Prior to a union taking strike action or an employer declaring a lockout, the following criteria must be met: 1) The parties must have engaged in collective bargaining 41 in good faith 42 ; 2) In the case of a union intending strike action, the union must have taken a strike vote; Division SEA, s. 6-89(2). 34 SEA, Division 13 (ss. 6-65ff). 35 Division SEA, ss. 6-82(1) and SEA, s SEA, s. 6-85(1). 39 SEA s. 6-1; TUA s SEA, s. 6-31; TUA s SEA, s SEA, ss. 6-7 and 6-34(1). 43 SEA, s

7 Page 6 3) The parties must have been unable to conclude a collective agreement and filed a notice of impasse to the Minister; 44 4) The parties must have participated in mediation or conciliation with the assistance of a labour relations officer, special mediator, or conciliation board, appointed by the Minister; 45 5) Either (a) the labour relations officer, special mediator, or conciliation board does not intend to recommend terms of settlement or (b) the parties have not accepted the recommended terms of settlement; 46 6) The labour relations officer, special mediator, or conciliation board has informed the minister and the parties that the dispute has not been settled; 47 and 7) Fourteen days must have expired since the notification to the Minister from the labour relations officer, special mediator, or conciliation board. 48 The requirement for 48 hours notice of strike or lockout to the other party and to the Minister is maintained. 49 The SEA also makes it easier for an employer to present a final offer to employees. Currently, a final offer vote is available only after a strike has continued for 30 days. 50 Under the SEA, any one of the union, the employer, or a group of employees representing the lesser of at least 45% of the bargaining unit or 100 employees, 51 may apply for a vote to be taken on the employer s final offer any time after notice to engage in collective bargaining has been given. 52 Further, under current legislation, a special mediator must be appointed and recommend that the Board conduct a vote prior to any vote being taken. 53 Under the SEA, there is no such 44 SEA, s SEA, s. 6-34(3) 46 Ibid. 47 Ibid. 48 Ibid. 49 SEA, s TUA, s. 45(1). 51 Section 45(1) of the TUA sets the number of employees at the lesser of 25% of employees, or 100 employees. 52 SEA s. 6-36(1). 53 TUA, s. 45(1.1).

8 Page 7 requirement (presumably because there must be mediation or conciliation prior to any industrial action in any event) and upon receipt of an application the Board shall direct a vote be taken. 54 The Minister may, if the Minister considers it to be in the public interest or on the recommendation of a labour relations officer, special mediator, or conciliation board, require the Board to order a final offer vote. 55 A vote ordered by the Minister may be in addition to a vote required pursuant to an application 56 - hence, effectively, there may be two final offer votes 57 where the current legislation allows for only one. 58 Further, all employees in the bargaining unit not merely those involved in the strike may participate in the final offer vote. 59 Internal Union Matters Unions must now provide to their members, without charge, an audited financial statement of their affairs for each fiscal year. 60 Unions no longer have the express statutory authority to fine their members for crossing a picket line. 61 Unions may still proceed in Court to collect fines levied pursuant to the Union constitution. The substance of the duty of fair representation 62 owed by unions to their members remains essentially unchanged, but it is set out in more detail. 63 The Board process for DFR applications is similarly set out in more detail, and the Board now has the express authority to extend the time 54 SEA s. 6-36(2). 55 SEA s. 6-36(4). 56 SEA s. 6-36(5). 57 Despite section 6-36(3), which states that only one vote may be taken in respect to the same dispute. 58 TUA s. 45(4). 59 SEA s. 6-36(1), as opposed to the TUA, s. 45(3). 60 SEA s TUA, s. 36(4). 62 TUA, s SEA, s and 6-60.

9 Page 8 limit for a grievance under a collective agreement if a Union has, contrary to the DFR, failed to bring a grievance on behalf of an employee. 64 Essential Services Part VII of the SEA is currently a placeholder section. What Part VII will ultimately contain will depend upon the results of the ongoing Charter challenge to The Public Service Essential Services Act. A decision from the Court of Appeal regarding that challenge is forthcoming. 64 SEA, s