Chapter 5. Governments, Labour Relations Boards, and Other Parties. Chapter Objectives

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1 Chapter 5 Governments, Labour Relations Boards, and Other Parties RPC Chapter Objectives 3, 29, 40, 98, 100, 101, Explain the objectives of governments and the processes or methods used to achieve those objectives. 29, Explain the composition, roles, and importance of Labour Relations Boards. Federal and provincial governments in Canada are frequently challenged by overseeing the economic well-being of citizens in their jurisdiction as well as creating structures and systems to enable various groups within our society to interact in a manner that reflects the principles of our political, social and economic beliefs and values. Sometimes the notion of a free market economy and the impact it may have on the lives of average Canadians creates a policy dilemma for politicians. Should the government look the other way when a corporation decides to close a plant or relocate it to another country leaving area residents without jobs? Political leaders are then s uddenly thrust into the spotlight being asked if they will offer any form of incentives, via cash inflows or tax breaks to help persuade the company to stay in a large urban industrial centre or a smaller, rural outpost. Since the depths of the recession in June 2009, new jobs were created in Canada. At that time, government bailouts to both G eneral Motors ($10.9m) and Chrysler ($2.9m) had some questioning whether such financial aid was justified for a combined workforce of some auto industry employees. Others argued that the loss of key manufacturing plants in affected cities, particularly in Ontario, would cause insurmountable hardship not only from immediate job loss at either auto company but also on Tier 2 supporting industries as well as the local economies in affected communities. A completely different challenge for g overnment is ensuring that a legal framework is created and maintained to oversee relationships in the workplace. Labour boards and related agencies at the federal, p rovincial, and territorial levels are products of such government responsibility. This framework provides protection against employer excesses and assures individual workers of a means to claim that their rights as protected by the Charter of Rights and Freedoms, other legislation, and the common law. These legal frameworks are continuously tested by new situations and the resulting decisions made by the judicial system, third-party interveners, and parties to the collective bargaining. In Chapter 3, we considered unions as actors in the labour relations system, and outlined their objectives and methods. In Chapter 4, we looked at employers and their objectives and methods. In this chapter, we will consider the third main actor, government. This will include government objectives the reasons for government

2 involvement in labour relations and methods available to governments to achieve their objectives. We will briefly refer to other parties involved in labour relations, paying special attention to labour relations boards. Government Objectives and Processes Figure 5-1 summarizes government objectives relating to labour relations, and the methods governments use to achieve their objectives. Some of the objectives and processes we will explore, including the regulation of labour relations outcomes through labour relations legislation, have a direct impact on unions and employers. Other objectives, such as regulating the economy through monetary and fiscal policy, have an indirect effect on employers and unions. Monetary policy that provides for higher interest rates to control inflation is not directly aimed at employers and unions; however, it will affect them. Some of the objectives overlap: for example, government attempts to regulate labour relations outcomes also protect the public interest. Government efforts to regulate the economy also affect the distribution of rewards that may be a government concern. Fiscal policy that reduces taxes to stimulate the economy should increase employment and thus affects the distribution of rewards. There may be conflict between some of the objectives and processes. Some observers argue that efforts to pursue equal opportunity and regulate employment conditions through employment equity and employment standards legislation deter business, and negatively impact the economy. One process could help achieve several different objectives. For example, providing financial assistance to a particular industry serves the government objectives of regulating the economy and maintaining office. Regulation of Labour Relations Processes The key processes in labour relations are union organizing, contract negotiation, and the administration of collective agreements. The need for government regulation in this area was illustrated in the history of labour relations in Chapter 3. Prior to government regulation of Objectives 1. Regulation of labour relations processes 2. Regulation of labour relations outcomes 3. Protection of the public interest 4. Regulation of the economy: employment and inflation 5. Aid to particular industries 6. Regulation of the results of a market economy: monitoring equitable opportunity, rewards, and minimum employment conditions 7. Government employers: efficiency and control 8. Maintainance of political office Processes or Methods 1. Legislation relating to labour relations, employment standards, human rights, health and safety, pay equity, and employment equity 2. Specific dispute resolution (back-to-work) legislation 3. Contract negotiation 4. Grievances and arbitration 5. Public relations initiatives 6. Providing assistance and information to employers and unions regarding labour relations issues 7. Monetary and fiscal policy 8. Ownership of some enterprises 9. Legal action Figure 5-1 Government Objectives and Processes G o v e r n m e n t s, L a b o u r R e l a t i o n s B o a r d s, a n d O t h e r P a r t i e s 87

3 Jurisdiction Statute Website Federal Canada Labour Code, Part I: Industrial Relations rsc-1985-c-l-2/latest/rsc-1985-c-l-2.html Note: Federal legislation also applies to Northwest Territories, Nunavut and the Yukon Alberta Labour Relations Code c-l-1/latest/rsa-2000-c-l-1.html British Columbia Labour Relations Code c-244/latest/rsbc-1996-c-244.html Manitoba Labour Relations Act New Brunswick Industrial Relations Act c-i-4/latest/rsnb-1973-c-i-4.html Newfoundland and Labrador Labour Relations Act statutes/l01.htm Nova Scotia Trade Union Act c-475/latest/rsns-1989-c-475.html Ontario Labour Relations Act rso-1990-c-l2/latest/rso-1990-c-l2.html Prince Edward Island Labour Act c-l-1/latest/rspei-1988-c-l-1.html Quebec Labour Code Saskatchewan Trade Union Act c-t-17/latest/rss-1978-c-t-17.html Northwest Territories Nunavut Yukon Canada Labour Code, Part 1: Industrial Relations Canada Labour Code, Part 1: Industrial Relations Canada Labour Code, Part 1: Industrial Relations Figure 5-2 Private Sector Labour Relations Legislation c-l-2/latest/rsc-1985-c-l-2.html c-l-2/latest/rsc-1985-c-l-2.html c-l-2/latest/rsc-1985-c-l-2.html the organizing process, strikes sometimes violent were used to force employers to recognize and negotiate with unions. Prior to government regulation, employers discriminated against union supporters. The primary method governments use to regulate labour relations processes is labour relations legislation. Figure 5-2 provides online sourcing of labour laws affecting private sector employers in federal, provincial, and territorial jurisdictions. This legislation sets out rules regulating how a union obtains the right to represent employees, listing the rights of employers during an organizing campaign, imposing a duty to bargain in good faith on both the parties, and requiring disputes during the term of a collective agreement to be resolved through arbitration. Regulation of Labour Relations Outcomes Collective agreements, strikes, and lockouts are key outcomes in the labour relations system, while strikes and lockouts are viewed as both processes and outputs of the system. Collective agreement terms could affect the economy by causing inflationary pressure, and 88 C h a p t e r 5

4 some strikes and lockouts could harm the public. Some unionized employees may still need protection regarding the terms and conditions of their work, because being in a union does not guarantee adequate rewards or safe working conditions. Governments use several methods to regulate labour relations outcomes. Labour relations legislation in all jurisdictions requires a strike to be approved by an employee vote, and a strike notice is required in some jurisdictions. As noted earlier in this chapter, governments can pass back-to-work legislation to end a particular strike. Employment standards legislation sets out minimum terms of employment such as maximum hours that can be worked, minimum wages, vacations, and pregnancy and parental leave. Protection of the Public Interest There is a broader public interest that needs protection. It is possible that a strike might not seriously harm the employer because it can carry on business using an inventory of finished product. It is possible that a strike might not seriously harm the union because of strike pay, financial assistance from other unions, and the attainment of alternative work by striking employees alternative work during a work stoppage. However, a strike could inconvenience or harm the public interest by eliminating an important service such as public transit. To limit the impact of such labour disruptions to the public, governments may seek to avoid strikes and lockouts through one or more of the following: labour relations legislation that places restrictions on strikes and lockouts, assistance during negotiation in the form of conciliation and mediation, and back-to-work legislation. Figure 5-3 lists websites for the government ministries responsible for labour issues. It is recommended that you review the site for your jurisdiction. A government may also use legal action to achieve its objectives. For example, in 2009 the federal government started legal proceedings against U.S. Steel to enforce commitments the company had made to Ottawa when it was allowed to take over Stelco. Federal: Ministry of Labour Alberta: Employment and Immigration British Columbia: Ministry of Labour Manitoba: Labour and Immigration New Brunswick: Post-Secondary Education, Training and Labour Newfoundland and Labrador: Labour Relations Agency Northwest Territories: Labour Relations Nova Scotia: Labour and Workforce Development Nunavut: Labour Standards Ontario: Ministry of Labour Prince Edward Island: Community Services, Seniors and Labour Quebec: Les services en relations du travail Saskatchewan: Advanced Education, Employment and Labour Yukon Website Figure 5-3 Ministries Responsible for Labour Issues G o v e r n m e n t s, L a b o u r R e l a t i o n s B o a r d s, a n d O t h e r P a r t i e s 89

5 Regulation of the Economy The regulation and improvement of the economy is a key government objective that will affect employers and unions. Governments may wish to control inflation and unemployment through monetary and fiscal policy. They may also seek to establish a positive climate for investment through measures such as tax cuts and aid for industry. Concern about government debt levels could lead to reductions in government spending and employment. The federal government may pursue trade deals, such as NAFTA, that will impact employers and unions. Assistance to Industry All levels of government may engage in efforts to provide assistance to an industry. In 2009, the federal and Ontario governments decided to use massive amounts of taxpayer cash to rescue two corporations deemed too big to fail, General Motors and Chrysler. The cost to Canadians was nearly US$14 billion in total. In early 2013, the Government of Newfoundland and Labrador announced a $3.6 million loan to be provided to Carino Company Ltd. to bail out the declining sealing industry. 1 The previous year, the provincial government provided a $2 million dollar subsidy to the company. At the time, Carino pledged to repay the entire loan, but then repaid only half of the debt. Despite this, the Newfoundland government announced even more subsidies to Carino. Regulating Market Practices and Results There are concerns about the practices and results in an unregulated market economy. It is possible that without regulation, safety in the workplace would be diminished and undesirable practices such as discrimination could increase. There may also be concerns about the equitable distribution of job opportunities and rewards. This is a controversial area, because there are those who think there is no need for government intervention, or that such i ntervention does not work. There has been a long-standing debate about whether minimum wage laws protect employees or cause unemployment. Government methods in this area include employment standards legislation that sets out minimum terms of employment, including wages, vacations, leaves of absence, and work hours. Employment s tandards l egislation will affect the negotiation and administration of collective agreements referred to in later chapters. The collective agreement must provide employees with at least the minimum provided in the legislation. If the relevant legislation provides for a minimum bereavement leave, a collective agreement cannot provide less time off. This is sometimes referred to as not being able to contract out of such employment standards obligations. In the course of the administration of the agreement, employers and unions will have to ensure that employment terms minimum wage not expressly referred to in the collective agreement at least meet the minimum provided in employment standards legislation. If the agreement did not include leave for parents adopting children, the leave provided for in the legislation would have to be granted. The employer and the union will also have to ensure that changes in employment standards legislation, which may provide new or additional protection to employees that is not provided in the agreement, have been complied with. Recently, employment standards legislation in most jurisdictions has been amended to provide for compassionate care leave. This development allows employees to take unpaid time off to attend to seriously ill family members. Employment standards are continually amended and updated, so reference should be made to the legislation and government ministry for current information. For information relating to employment standards, refer to the websites listed in Figures 5-4 and C h a p t e r 5

6 Employment Standard Minimum wage Hours of work, overtime, breaks Days of rest, Sunday work Holidays Vacations Maternity and parental leave Compassionate care leave Notice of termination individual employee or groups of employees Labour Canada Website minimum_wages.shtml pubs_st/hours.shtml? hours.shtml pubs_st/general_holidays.shtml annual_vacations.shtml maternity.shtml compassionate.shtml terminations.shtml Figure 5-4 Employment Standards Information: Labour Canada Alberta British Columbia Manitoba New Brunswick Newfoundland and Labrador Nova Scotia Ontario Prince Edward Island Saskatchewan Figure 5-5 Employment Standards Information: Provinces There are important considerations associated with employment standards legislation. First, many of the standards are set at a low level. Although some standards appear to provide a reasonable level of protection and have been adopted by some employers as established policy, others offer minimal protection, and many employers provide more than the legislation requires. For example, the provided vacation entitlement is minimal and the minimum wage could not be considered a living wage. Second, certain categories of employees are exempted from some employment standards provisions. Third, there are problems with the enforcement of the legislation. In 2013, the Ministry of Labour in Ontario announced actions to protect retail workers rights and promote fairness in the workplace by launching a province-wide employment standards retail inspection blitz. Government inspectors visited retailers such as grocery stores, gas stations and shopping malls between October and December that year to make sure workplace rights were being protected in areas including public holiday pay, overtime pay, hours of work, and vacation pay. Since 2004, Ontario s Employment Standards Program recovered more than $100 million in wages and other monies owed to employees. 2 G o v e r n m e n t s, L a b o u r R e l a t i o n s B o a r d s, a n d O t h e r P a r t i e s 91

7 Human rights legislation protects employees from discrimination and harassment. Health and safety legislation provides protection against accidents, industrial diseases and in some jurisdictions harassment. This legislation sets out minimum terms for the workplace, such as a health and safety committee, which may be exceeded in a collective agreement. All jurisdictions have equal pay for equal work legislation, usually provided for in employment standards legislation. Some jurisdictions have gone further and enacted pay equity laws to achieve equal pay for work of equal value to female predominant job classifications. Unions have a role in the administration and enforcement of such legislation via applicable collective agreement language. Employment equity legislation in some jurisdictions attempts to address historical discriminatory staffing practices on the part of employers by removing barriers and taking proactive measures to ensure that four designated groups women, visible minorities, individuals with disabilities, and Aboriginal people are adequately represented in the workplace. Unions may have a role in the preparation of required plans and the enforcement of this legislation through grievance and arbitration processes. Government Employers: Objectives In 2011, there were 3.6 million Canadian public sector employees. Ninety-three percent were employed directly in federal, provincial, and local government offices or publicly funded organizations such as schools and hospitals. Special provisions regarding labour relations in the public sector are described in Chapter 11. Government employers will have the objectives of efficiency and control referred to in the previous chapter. The manner in which governments deal with their own employees and unions may have an effect on employers in the private sector. If governments take a leading role by providing innovative terms of employment, such as daycare, private sector employers and unions will likely negotiate the same issues. On the other hand, governments have recently taken a harder line with unions representing public sector employees, and this too may influence private sector labour relations. Although public sector employees in some jurisdictions are regulated by the legislation governing the private sector, some governments enact special public sector labour relations legislation. For example, in Saskatchewan government employees are regulated by the same Trade Union Act that regulates the private sector, whereas in Ontario there is a Crown Employees Collective Bargaining Act, which covers government employees. The public sector legislation regulates who can unionize, the issues that can be bargained, and the employee s right to strike. Governments have from time to time made use of back-to-work legislation. They also have the same labour relations processes as private sector employers, including contract negotiation, lockouts in some cases, grievances and arbitration, and public relations campaigning. Maintaining Office Cynics may claim that all of the objectives previously referred to really come down to the objective of a government maintaining office. A government s desire to maintain office may make it susceptible to political and public relations activities of unions and employers referred to in previous chapters. For example, in 2004 the Saskatchewan government announced it was going to change the province s employment standards legislation to require employers with more than 50 workers to allocate additional hours to part-time employees on the basis of their length of service; employers strongly opposed the change. Some employers and the chambers of commerce in several cities formed an association, the Saskatchewan Business Council, that campaigned against the proposal. Eventually the government dropped the idea. It has also been alleged that some contract negotiations between governments and public sector employees just prior to an election have been influenced by the government s desire to win votes. 92 C h a p t e r 5

8 Finally, it must be noted that government plays other roles and engages in other activities not referred to here that affect employers and unions. For example, governments provide secondary and post-secondary education, which affects the supply of labour available to employers. Labour Relations Boards The framework for labour relations provided in Chapter 1 indicated that in addition to the three main actors unions, employers, and governments there are other parties involved. A separate fourth category was established to emphasize that it is independent of the three main actors: labour relations legislation establishes a Labour Relations Board in each jurisdiction, which is responsible for administration of the legislation. Composition of Labour Relations Boards Most Labour Relations Boards in Canada are tripartite representational bodies consisting of a neutral chairperson and vice-chairs, and representatives from employers and unions. Although in some jurisdictions there is a provision for hearings to be conducted by a n eutral chair or vice-chairperson, some hearings are conducted by a three-person panel including one labour representative, one employer representative, and a neutral chair or vice-chair. While the government appoints Board members and the Board must apply the relevant legislation, the Board is independent from government. A Labour Relations Board is an independent body responsible for the administration of labour relations legislation affecting employers, employees and unions in each jurisdiciton. Board Responsibilities Labour Relations Boards have responsibility for the matters listed in Key Considerations 5-1. The roles and responsibilities of the Boards will be developed in subsequent chapters as the need arises. At this point, it will merely be noted that the Boards play a central role in the labour relations system. They have the authority to grant bargaining rights to unions and to terminate those rights. When it is alleged that an employer or a union has violated labour relations legislation, a complaint is filed with the appropriate Board. The jurisdiction of Labour Relations Boards has been increasing in recent years. Some have a broader jurisdiction than others; for example, in British Columbia the Board has responsibility in areas that other Boards do not, including the mediation of disputes through a mediation division. In some jurisdictions, there is special legislation and a separate Board that deals with the public sector. This topic is discussed in Chapter 11. Procedure and Remedies On an application to a Board, a settlement officer attempts to resolve disputes so that a formal hearing is not required. Very often a hearing is avoided. The Boards have extensive remedial powers, including ordering the reinstatement of employees and the payment of damages. Key Considerations 5-1 Labour Relations Board Responsibilities 1. Processing union applications to represent employees 2. Processing applications to terminate union bargaining rights 3. Hearing unfair labour practice complaints by unions, employers, and employees 4. Hearing complaints and issuing declarations regarding unlawful strikes, lockouts, and picketing 5. Resolving disputes arising under a collective agreement in some jurisdictions 6. Dealing with arbitration of first and subsequent contract disputes in some jurisdictions G o v e r n m e n t s, L a b o u r R e l a t i o n s B o a r d s, a n d O t h e r P a r t i e s 93

9 Although Board decisions cannot be appealed, two courses of action are open to a party not satisfied with a decision. An application can be made either for the Board to reconsider or for judicial review of the decision. An examination of Board annual reports shows that although the Boards make thousands of decisions every year, very few undergo judicial review. Referring disputes under labour relations legislation to a Board instead of the court system has a few advantages. Individuals with expertise in labour relations make the decisions, and they are made faster, with less expense. One of the reasons Canadian labour relations legislation is viewed as being more strictly enforced than the U.S. legislation is the reliance on Labour Relations Boards. In the United States, some disputes are referred to the court system, and this entails additional expense and delay. Other Parties The framework for labour relations in Chapter 1 referred to other parties such as arbitrators. We previously referred to the courts and human rights tribunals in Chapter 2. Arbitrators will be discussed as necessary in subsequent chapters. Arbitrators hear disputes between unions and employers and render final and binding decisions. Arbitrators Arbitrators play an important role in the labour relations system. When a union and an employer have a dispute about the meaning or application of a collective agreement, it is referred to rights arbitration. Arbitrators hear evidence presented by the parties and render decisions that are binding upon them. The termination of an employee is one important issue we will see referred to arbitration in Chapter 9. In Chapter 10, we will see that in parts of the public sector, arbitrators settle the terms of the collective agreement when the parties are not able to negotiate a contract. This is known as interest arbitration. The point emphasized here is that arbitrators are independent from government. Courts The courts play a role in labour relations. Although it is seldom done, it is possible to have an arbitrator s decision reviewed in the courts. The Meiorin case (British Columbia (Public Service Employee Relations Commission) v. B.C.G.S.E.U. 176 D.L.R. (4th) 1), referred to in Chapter 2, which established the requirements for a bona fide occupational requirement, illustrates the role of the courts. Implications for Practice 1. Government plays a key role in labour relations as a regulator, facilitator, and protector of the public interest. Employers and unions need to monitor proposed changes in government policy and should become involved in activities to attempt to influence government policy. 2. Labour Relations Boards also play a vital role. Unions and employers should be familiar with Board rules, policies, and practices. Where necessary, employers and unions should consult lawyers or consultants. 3. Other parties in the labour relations system include the courts, arbitrators, and human rights tribunals. 94 C h a p t e r 5

10 Key Terms Arbitrators, p. 94 Labour Relations Board, p. 93 Review Questions 1. Why does government become involved in labour relations? 2. What methods do governments use to regulate and influence the labour relations system? 3. What is the composition of a labour relations board? 4. How do Labour Relations Boards serve as key actors in the labour relations system? Discussion Questions 1. Give two examples of how employment standards legislation protects the terms and conditions of work for employees. Are these examples of minimum terms? Could each standard be exceeded in a collective agreement? Explain. Web Research Visit the website of the Labour Relations Board in your province or the Canada Industrial Relations Board. Find out information about the Board s composition and a key process that is carried out for employers, employees or a union. Case Incident Quality Inn & Suites Brantford v. UFCW Local 175 In January 2012 the Ontario Labour Relations Board was asked to consider an application for the termination of bargaining rights filed under the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the Act ). When the representation vote was taken, as directed by the Board, more than 50 percent of the ballots cast by employees of the Quality Suites and Inns located in Brantford, Ontario, who were also members of the United Food and Commercial Workers (UFCW), Local 175, opposed continuing to be represented by the union. The Board s rules of procedure regarding the taking of the representative vote by hotel employees had been followed. No statement of desire to make representations by the parties concerning an outstanding issue in dispute had been filed with the Labour Relations Board following the vote. The Board declared that the UFCW no longer represented the hotel employees. It ordered the ballots cast in the representation vote to be destroyed following the expiration of 30 days from the date of the decision unless a statement requesting that the ballots should not be destroyed was received by the Board from one of the parties before then. Additional meetings and hearing dates were cancelled. The hotel s management was also directed to post copies of the Board s decision within the employment setting. Questions 1. Which role of government referred to in this chapter is illustrated in this case? 2. How might this situation be explained in terms of the Framework for Labour Relations seen in Chapter 1? G o v e r n m e n t s, L a b o u r R e l a t i o n s B o a r d s, a n d O t h e r P a r t i e s 95