Labour Negotiations New Demands; New Answers

Transcription

1 Labour Negotiations Brian P. Smeenk, Fasken Martineau Guest Speaker: Matthew Sutcliffe, Sunnybrook Health Sciences Centre June 16, 2015 LABOUR NEGOTIATIONS Agenda 8:15 - INTRODUCTORY REMARKS Brian Smeenk The Lawyer s Perspective Matthew Sutcliffe The Employer s Perspective 8: 25 Some Possible Employer Improvements 8: Some Current, Typical Union Demands 9: 15 Further Q & A 9:30 -- Back to Work! (Fasken Martineau Institute) 1

2 Suggested Topics SOME POSSIBLE EMPLOYER IMPROVEMENTS Grievance Mediation clauses Expedited Arbitration clauses Attendance Management Program recognition Frustration of Employment deemed termination clauses TYPICAL UNION DEMANDS Part-time/casual work force restrictions Modified Work Program clauses Employment Security & Re-deployment Harassment clauses Health & Safety clauses Possible Employer Improvements CBA improvements you could propose (Fasken Martineau Institute) 2

3 Grievance Mediation clauses Worth considering if: Steady volume of cases referred to arbitration Many don t really need to be arbitrated High rate of settlement on first day of arbitration Parties often need 3 rd party assistance to get resolution Relationship issues Past success with grievance mediation Grievance Mediation clauses Variations in the model: Mediation on case-by-case basis [opt-in] Mediation before every arbitration, subject to opt-out Mediation for all of a certain type of grievance Name mediator[s] in CBA vs. ad hoc Pre-scheduled mediation dates vs. ad hoc Joint payment vs. Employer pays Lawyers present vs. normally parties only Mediation only vs. Med-Arb (Fasken Martineau Institute) 3

4 Grievance Mediation clauses Some things to watch out for: Mediation becomes 4th Step for most grievances Getting stuck with unhelpful mediator on roster Allowing Union to control who mediates each case Predictably futile mediations Giving same mediator too many strong employer cases Example clause attached Expedited Arbitration clauses Worth considering if: High volume of cases referred to arbitration Many cases have common issues or features Great difficulty in settling cases need 3 rd party decisions Normal process is disproportionately expensive re issues Many/most facts don t need spoken evidence (Fasken Martineau Institute) 4

5 Expedited Arbitration clauses Variations in Model: Any live witnesses? Will Say statements vs. agreed facts vs. witnesses Who decides whether cross examination allowed? Arbitrator access to investigators notes or Q & A? How long to be allowed for each case? Lawyers vs. no lawyers vs. lawyers if advance notice Precedent-setting or not? Roster of arbitrator[s] vs. ad hoc Pre-set days vs. ad hoc Expedited Arbitration clauses Things to watch out for: Inappropriate cases going to expedited (rough justice) Inability to get the necessary evidence before arbitrator The narcotic effect of easy arbitration Getting stuck with bad precedents Getting stuck with unacceptable arbitrator (Fasken Martineau Institute) 5

6 Attendance Program Recognition Good to have recognized in CBA if: You have a good program; Your program helps contain/improve attendance You remain able to modify Program as necessary There have been questions about ability to enforce Things to watch out for: Having to negotiate each parameter/ level Having to involve union in each employee interaction Making all attendance Giving up various management rights re attendance Frustration of Employment deemed termination clauses Possible features: Absence for lengthy, defined period No outstanding LTD/WSIB appeals Employee s conditions stable Employee thus unlikely to return Employee receives ESA severance upon termination Noteworthy: Supreme Court: termination for frustration is not discriminatory Employee gets benefit of ESA $ Employer gets benefit of ending potential further liability Such clauses were previously very common (Fasken Martineau Institute) 6

7 Some other improvements to consider Notice to Union that CBA is limited to its express terms Notice that negotiations are without prejudice Notice to end inconsistent past practices To end estoppel arguments, where more generous practice Anti- Webber clause right to arbitrate limited to CBA clauses Requirements for Union to cooperate re human rights During investigation of harassment or discrimination claims In implementation of resolutions Lengthen sunset for discipline Typical Union Demands What are unions seeking lately? (Fasken Martineau Institute) 7

8 Part-time/casual workforce restrictions Why are unions pursuing this? More F/T jobs = stronger union foothold F/T generally earn more than P/T F/T generally get better benefits Makes union contracts look better Cost containment & profitability not their concern What are they pursuing? Limits on P/T or casual workers [% or # or hours] Prohibition while F/T are laid off Prohibition against P/T or casual performing work now done F/T P/T or casual to be laid off before F/T F/T ability to bump into P/T workforce Modified Work Program Clauses Unions Seeking Expansion of Duty to Accommodate Requirements to accept employee s Dr s medical opinions Requirements to find modified work Including bundling of duties; creation of new jobs Including creating extra positions Temporary & permanent positions As similar to regular duties as possible Diminishing the undue hardship limitation Union representation in modified jobs outside bargaining unit Attempt to continue duty beyond WSIA s requirements (Fasken Martineau Institute) 8

9 Employment Security & Re-deployment Layered on top of normal seniority protections Starts with generous severance pay Lengthy notice obligations For elimination of position; or For layoff of employee Attempts to have expanded definition of layoff Obligations to consult with Union: Meaningful consultation what s that mean? When must it occur at earliest opportunity?? Obligations to provide information about the decision? To explain decision-making process? To review and discuss all possible alternatives? Must implementation await completion of consultation process? Employment Security & Re-deployment Continuation of regular wages Throughout notice period For further guarantee period? Ability to return to original job Even if new permanent position occupied? What if employee has posted into new position? Severance Pay Employee option to accept at what point? Will it be enhanced if employee accept $ early? When will this right expire? Retirement allowance alternatives? Re-training obligations how triggered? Placement of displaced employees prior to normal job posting (Fasken Martineau Institute) 9

10 Harassment Clauses Unions commonly propose very broad definitions Beyond sexual harassment Beyond threats of violence Beyond legal obligations under OHSA or Human Rights May exponentially increase chances for disputes Clause would displace corporate policy if inconsistent Separate processes Investigation Dispute resolution Reporting Confusion re which process applies Subject to grievance/ arbitration What other union involvement? Health & Safety clauses Contractual terms of reference for H & S? Consider how these co-relate with Ministry-approved ToR? Changes would need to be negotiated at bargaining table Workplace inspection protocols Clauses re effect of JHSC s recommendations Procedures re handling of accidents, incidents, concerns Payment for fulfilling various duties by JHSC members Training obligations for JHSC and others Clauses re maintaining safe workplace conditions Including ergonomic standards, etc. How would these co-relate with statutory obligations? (Fasken Martineau Institute) 10

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