Labour Law

Labour Law

Professor Adelle Blackett, Winter 2009, by Mae J. Nam (updated from Monika Rahman 2008 Summary)

3I. Introduction to the Field of Labour and Employment Law

(I) Industrial Relations Framework3

The Rand Decision (1946), [1996] 1 C.L.L.R. 13563

Fudge & Tucker on Industrial Legality (Not in Assigned Readings)5

ILO Declaration of Fundamental Principles and Rights at Work Key Messages5

(II) Division of Powers - Jurisdiction6

Northern Telcom Ltd. v. Communications Workers, [1980] 1 SCR 1156

McIntyre c. I.A.M. & A. W. 2007 QCCA 1178 (41)7

CAW Canada, Local 444 v. Great Blue Heron Gaming, 2007 ONCA 814 (49)7

II. Collective Bargaining Policy & Industrial Legality9

Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 98910

(I) Freedom of Association for Agricultural Workers12

Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 101612

Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997)14

Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003)15

Travailleurs et travailleuses unis de lalimentation et du commerce, section locale 501 c. La Lgumire Y. C. inc. et al. (24 Sept 2007), 2007 QCCRT 046715

III. Relationship between Freedom of Association & Collective Bargaining Policy17

(i) The Labour Trilogy: No Right to Collective Bargaining or Strike17

Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 31317

PSAC v. Canada, [1987] 1 S.C.R. 42419

RWDSU v. Saskatchewan, [1987] 1 S.C.R. 46021

(ii) Overriding an Collectively Bargained Agreement23

Newfoundland (Treasury Board) v. N.A.P.E., [2004] 3 S.C.R. 38123

(ii) Right to Collective Bargaining Recognized25

Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 2725

Fraser (Attorney General), 2008 ONCA 76029

CSN c. Qubec (Procurer general), 2007 QCCS 551330

Plourde v. Qubec (Commission des relations du travail) 2007 QCCS 316531

Plourde v. Qubec (Commission des relations du travail) 2007 QCCA 121031

IV. Acquisition and Termination of Bargaining Rights31

(i) Employee Status31

CSN c. Qubec (Procurer general), 2008 QCCS 505733

Pointe Claire (City) v. Quebec (Labour Court), [1997] 1 S.C.R. 101533

(ii) Bargaining Unit Determination36

Natrel Inc. v. Syndicat dmocratique des distributeurs (1996), T.T. 56736

(iii) Successor Rights38

Ivanhoe Inc. v. UFCW, Local 500, [2001] 2 S.C.R. 56539

Sept-les (City) v. Quebec (Labour Court), [2001] S.C.R. 67042

T.U.A.C. loc. 503 c. Quebec (Commission des relations du travail) [2008] D.T.E. E-3844

Syndicat national du lair inc c. Laiterie Royala inc., 2004 QCRT 602)45

V. Unfair Labour Practices46

The Rise and Fall of A Collective Agreement46

(i) Hampering Unionization Efforts46

Syndicat canadien des communications, de lnergie et du papier, local 194 v. Disque Amric, [1996] A.Q. 3381 (Tribunal du travail)47

(ii) Failure to Bargain in Good Faith49

Royal Oak Mines. v. CASAW, Local 4, [1996] 1 S.C.R. 36950

(iii) Interference with Union Activity52

C.B.C. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 (Goldhawk)52

(iv) Double-Breasting (in Quebec)54

Ville-Marie Pontiac Buick Inc. v. Syndicat des travailleurs de garage de Montral (C.S.N.), [1993] T.T. 16254

(v) Closure56

City Buick Pontiac (Montral) Inc. v. Roy, [1981] T.T. 2256

I.A.T.S.E., Stage Local 56 v. Socit de la Place des Arts de Montral, [2004] 1 S.C.R. 4357

Violations of NAALC Labor Principles and Obligations St-Hubert McDonalds Restaurant58

Cie Wal-Mart du Canada c. Qubec (Commission des relations du travail) 2008 QCCA 23660

VI. Negotiating a Collective Agreement60

VII. Industrial Conflict63

(i) Leafletting65

U.F.C.W., Local 1518 v. KMart Canada, [1999] 2 S.C.R. 108365

(ii) Picketing67

R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 15667

(iii) Replacement Workers S.109.1, QLC68

AGSEM c. Universit McGill, 2008 QCCRT 0179 (295)69

VIII. Administration of the Collective Agreement69

Isidore Garon lte v. Tremblay; Fillion et Frres (1976) inc. V. Syndicat national des employs de garage du Qubec inc., [2006] 1 S.C.R. 2771

IX. The Individual under the Collective Agreement73

Steele v. Louisville & Nashville Railroad Company, 323 U.S. 192 (1944)74

McGill University Health Centre (Montreal General Hospital) v. Syndicat des employs de lHpital eneral de Montral, [2007] 1 S.C.R. 16176

X. New Approaches to Labour Law in a Globalizing Economy78

Harry Arthurs: Labour Law Without the State (1996)79

Blackett, A Labour Law Critique of Codes of Corporate Conduct (2000)80

Steps in Certification, Unfair Labour Practices, etc.81

Steps82

I. Introduction to the Field of Labour and Employment Law

What are the underlying objectives of labour law? What are the three regimes identified to meet those objectives during the fordist era? Why is Canadian labour law primarily regulated at the provincial level? Is current labour regulation in Canada in-sync with contemporary labour market challenges?

Blackett argues that many situations could be covered by labour law seasonal agricultural workers, Wal-Mart employees, lawyers and articling students but arent. The typical case that is covered by labour law is a person covered by a collective agreement. This might be a government employee, but unionization of govt workers didnt emerge until the 1960s. We see the heart of intersection b/w labour law and industrialization in case involving Ford Motors in a judgment by Laskin CJ.

Labour laws history is very much a history of people claiming their ability to marshal their power to organize and extract better working, and hence living, conditions. Initially, many unions claimed the right to be left alone i.e. not to have CML step in. The story of labour law is also the story of industry and business in a Post-Industrial World

We will consider interface between human rights norms and collective representation.

The Rand Decision comes at the end of a period in Cdn history of massive strikes, deeply politicised, sometimes quite violent.

The Rand formula (also referred to as automatic check-off) is a workplace situation where the payment of trade union dues is mandatory regardless of the worker's union status. This formula is designed to ensure that no employee will opt out of the union simply to avoid dues yet reap the benefits of the union's accomplishments (such as ensuring higher wages, better job security or other benefits).

Supreme Court of Canada Justice Ivan Rand, the eponym of this law, introduced this formula in 1946 as an arbitration decision ending the Ford Strike of 1945 in Windsor, Ontario.

Sources of Labour Law: relationship and power dynamic between - Charter (2(d) and 15), Labour Codes (QLC, CLC, OLRA), alternative statutes, CML law, international law

(I) Industrial Relations Framework

The Rand Decision (1946), [1996] 1 C.L.L.R. 1356

Jurisdiction

Facts

There was a strike of the Ford Motor Company in 1945 in Windsor Ontario. The union accepted a joint plan of settlement of the Dominion and Ontario governments. The plan called for arbitration by a judge of the Supreme Court of Canada on points that could not be settled by collective bargaining negotiations. Justice Rand was named arbitrator, and delivered his decision January 29, 1946

Issues

Can the union have union shop with check-off?

Holding

No union shop no obligatory membership but yes check-off to support the union.

Reasoning

Rand J:

The issue here is not a simple application of rules in a defined legal setting. This is a contest of extra-legal relations which must be resolved by the force of ethical and economic factors resting ultimately on the exercise of economic power

Background: The Need for Security and Stability

Any change in the relations between these parties (capital vs. labour) must be made in the framework of a society where the private enterprise is the dynamic of social life.

The social desirability of the organization of workers and collective bargaining has been written into statute. Labour unions should therefore be strong in order to carry out the functions for which they are intended.

Industry is so interrelated with economic and social harmony that any disturbance affects many interests. The economic life and fortunes of men become hostages to industrys continuance, which in turn takes its place as part of the general security.

As in the public political sphere, the economic sphere requires counterchecks between power and individual opinion.

Organized labour is necessary to redress the balance of social justice; however organized labour itself develops and depends upon power, which in turn must be met with balancing control in relation to individual workers.

The organization of labour must be elaborated and strengthened in a civilized manner for its essential function in a private economy. There must be a balancing of interests on all ends. Not every loss must end in a labour strike.

Historic Moment of this Case: The Immature Union

The root of the conflict between Ford Motor and its employees is the absolutist conception of property. Management kept employees at an arms length, and hostility and tension was inevitable. Given the psychological effects of working in repetitive operations, the employees required sympathetic handling.

Rand then disapprovingly cites stupid moves on the part of the strikers destroying plant property, involving innocent members of the public. Clearly they were exasperated, but a strike is not a tea party, and when passions are deeply aroused civilized restraint goes by the board. (

There must be growth within unions through experience to bring about maturity of judgment & conduct. It has been suggested that the union leaders are only concerned with maintaining their own positions of seniority the only remedy for this abuse is greater democratization of the union.

The Issue of Union Security

Union security is the maintenance of the strength and integrity of the union.

The union wanted a union shop with a check-off where an employer can hire who they want but must dismiss them after a certain time if the employee doesnt join the union (as opposed to closed shop where only a union member can be employed in the first place). The check-off means dues are subtracted directly from wages.

I cannot award a union shop. It would deny the Canadian to seek out work and work independently of any organized group. It would also make him vulnerable to the danger of arbitrary action of individuals and put him at the mercy of the power of an unmatured and uncontrolled group (i.e. the union).

The employer can, if he chooses, subject his employees to the full force of unionism. The individuals right against the organization is destroyed.

On the other hand we dont want employees becoming the beneficiaries of union action and receiving the protection of organization without contributing. It would not be inequitable to require all employees to pay a contribution towards the administration of the law of their employment.

The obligation to pay dues may induce membership, and this will serve the wider interest. The union will have to keep justifying itself to the majority.

It is not unfair that an employee has to contribute to funds when he has no control over their expenditure. Much more important to the eyee is the right, in the conditions to be attached to the check-off, to have a voice in the decision to strike.

Another condition attached to the obligatory check-off is the inability of a union to call a strike without a secret ballot vote. If the union violates this, the penalty would be the suspension of the check-off. Any employee will have the right to become a member of the union.

Comments

Historical Development of our Basic Labour Relations Framework:

The Rand Decision represents a key aspect of the difference between the Canadian model of industrial relations and the US model, making a significant difference in making unionization viable in

Fudge and Tucker identify three key periods of Canadian IR

1. liberal voluntarism labour relations occurred without particular labour legislation

2. 1900-48 emergence of early labour legislation, some of it federal that sought not to impose but rather to provide mechanisms to foster conciliation between parties in the place of strike action and criminal action

3. Industrial Legality Institutional and legal arrangements characterized and certified by a legally binding K b/w bureaucratic trade unions and the management

Seeking to identify representatives that are seen as autonomous of the employer but nonetheless responsible; prepared to manage with the employer. Prepared to implement and carry through the various requirements of the legislation.

This led to the need for a very different kind of actor than the kind of actor promoting and following through on strike action as a force to ensure change.

Fudge & Tucker on Industrial Legality (Not in Assigned Readings)

In Labour Before the Law: The Regulation of Workers Collective Action in Canada, 1900-1948, Fudge and Tucker identify three periods of industrial legality.

1. Liberal voluntarism (Prior to 1900) Terms and conditions of employment were determined primarily by the operation of the labour market and the individual contract of employment. Despite the Trades Union Act, 1892,which gave a legal face to unions, employers, with the aid of the courts ,used the power of private property to thwart collective labour action at every turn.

2. Industrial voluntarism. From 1900 state institutions played an increasingly important role in regulating industrial conflict. During this time, freedom of association remained a legal privilege, rather than a right enforced by the Canadian state (p.3). The Industrial Disputed Investigation Act, 1907, introduced compulsory conciliation and cooling off periods that gave time for state investigators to document and publicise strikes. Faced with an employer who had little concern for public opinion and who refused to becajoled by the government (p.64), conciliation under the Act did little to benefit unions. Its main goal, the authors argued was to distinguish between those unions that were responsible and those that were irresponsible.

3. Industrial Pluralism. This period was put in place near the end of the war in 1944 through Privy Council Order 1003. Under this wartime order unions were granted a distinctive legal status. The core elements of this system remain in place in current Labour Relations Acts in all jurisdictions in Canada. Under this system employers were legally required to recognise and negotiate with unions; freedom of association for the purpose of collective bargaining became an enforceable legal right; and unions, in effect, were recognised as the junior partners of business enterprise. In return for this legal status, unions and their leaders were required to be responsible. Instead of replacing the regimes of liberal and industrial voluntarism the new industrial legality was grafted on to employers' legal power of contract that is enforced through a wide range of legal mechanisms.

In the context of the workplace and industrial relations, responsibility means accepting the rule of law and all its prohibitions on collective action during the life of the collective agreement. In other words responsible unionism means denying the collective power of labour for most of the time and relying on legal mechanisms to solve the conflict inherent in the employment

Responsible unionism, as defined by the state and the courts, means relying on bureaucratic, technical forms of action to resolve conflicts between labour and capital. It requires the kind of union leader who must turn away, during the life of the collective agreement, from mobilising and organising collective action. Militant organisers don't fit well with this system.

Unionists must look to the requirements of legality rather than the collective power of workers for their legitimacy. Union leaders must make legality their central organising principle and be prepared to control and discipline members who go beyond the limits of the law. Under this system business unionism flourished as unions saw their role as obtaining the best deal for their specific constituencies rather than as leading a broader social movement to obtain greater economic equality for working people as a whole.

Also maintained seniority structure

ILO Declaration of Fundamental Principles and Rights at Work Key Messages

The clauses in the preamble highlight the important role of strong social policies and democratic institutions to ensure equity, social progress and the eradication of poverty. Economic and social policies should be mutually reinforcing.

The need to give particular attention to problems of persons with specialized needs (e.g. unemployed and migrant workers) is emphasized.

The preamble also stresses the need to recognize universal and fundamental principles in the context of growing economic interdependence

The Declaration states that even if a Member State has not ratified all the conventions in question, that they have an obligation arising from membership itself to promote and realize four fundamental principles:

a) freedom of association and the effective recognition of the right to collective bargaining;

b) the elimination of all forms of forced or compulsory labour;

c) the effective abolition of child labour; and

d) the elimination of discrimination in respect of employment and occupation.

There is also a state commitment to help Members promote and realize these principles.

Blackett Comment

Rand outlines why its time in this particular workplace structure to imagine a different kind of relationship between labour and management. He talks about the economic sphere, the nature of private property, and the shock that labour militancy poses for the liberal paradigm.

Labour is the necessary co-partner of capitalism. Social justice calls for a redressing of something that the previous half-century had failed to capture.

Hes moving away from a standard K and out of a standard approach in which labour power is simply purchased as a commodity.

With quite vivid imagery, he places the worker as a human surrounded by machines.

He then appeals to not only human rights and democratic principles, but focuses on the actors themselves, and tries to paint a very different picture of who the interlocutors would be an enlightened image of unionists as opposed to the communist threat that shrouded attempts for negotiated settlements.

The strike is not a tea partycaptures what is deeply controversial about labour relations (need to facilitate industrial peace)

Parties have a shared rational self-interest in meeting each other arriving at agreement rather than subjecting everything to sheer brute industrial power.

He then makes a case for arriving at a form of co-determination through certain key principles of union recognition

During the time of a collective agmt, if the eyer requires an eyee to do something in particular or doesnt respect one of the principles (e.g. seniority, the time you work for a particular employer bargaining unit gives you additional rights, e.g. priority over someone newer/younger).

If employer says wed rather have this more junior person, the more senior applicant could submit a grievance, and the union is responsible for deciding the grievance and carrying it forward (with management and the institution of grievance arbitration). In arbitration a neutral third party steps in an increasingly court-like fashion.

All this time, production is not stopped you can resolve controversial issues without striking

If you think about industrial legality narrowly, you see a unique system with its own rules and principles working within the boundaries of the collective agreement legislation

If you think about industrial legality broadly you see it as a way liberal, democratic systems seek to institutionalize and legitimize mechanisms to resolve conflict that is central to relationships

Framework is both of democratic control and enlightened leadership responsibility (not just about rights but explicit link to citizenship but remember men, English - exclusionary)

We will be testing various limits of this model.

(II) Division of Powers - Jurisdiction

Northern Telcom Ltd. v. Communications Workers, [1980] 1 SCR 115

Jurisdiction

Facts

On April 22, 1976, the Canada Labour Relations Board (the "Board") certified the Communications Workers of Canada (the "Union") as bargaining agent for 148 employees of Northern Telecom Limited ("Telecom"). Telecom opposed application, stating supervisors of installers performed management functions and were not "employees" within the meaning of the CLC. Before the Board, this was the central issue.

The Board eventually found against Telecom on all counts and found that it had jurisdiction. It also found that the supervisors were employees within the meaning of the CLC. The FCA dismissed an application to set aside the Board decision b/c Telecom did not furnish any evidence of the facts necessary to support the application was before the court.

Issues

1) Are the employees of Telecom employed upon or in connection with the operation of any federal work, undertaking or business, within the meaning of the Code?

2) For purposes of the class ( how is constitution jurisdiction divided in Canadian labour relations?

Holding

1) Will not answer the question because there is a near-absence of evidence upon which the decision ought to be made. 2) see below

Reasoning

Dickson J for the majority:

By virtue of s. 108 of the CLC, the Board has jurisdiction with respect to persons employed on federal works, undertakings or businesses. Section 2 of the Code defines federal work, undertaking or business (including telegraph connecting provinces, or work that is to the advantage of two or more provinces).

Quoting Laskin In the field of employer-employee and labour-management relations, the division of authority between Parliament and provincial legislatures is based on an initial conclusion that 1) in so far as such relations have an independent constitutional value they are within provincial competence; and, secondly, in so far as they are merely a facet of particular industries or enterprises their regulation is within the legislative authority of that body which has power to regulate the particular industry or enterprise ...

To determine constitutional jurisdiction in labour matters,

1. Begin with the operation which is at the core of the federal undertaking.

2. Operation normal and habitual activity

3. Arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential or "integral".

To determine the constitutional issues, therefore, it is clear that certain kinds of 'constitutional facts' are required. Among these are the general nature of Telecom's operation as a going concern and, in particular:

1) the role of the installation department within that operation;

2) the nature of the corporate relationship between Telecom and the companies that it serves, notably Bell Canada;

3) the importance of the work done by the installation department of Telecom for Bell Canada as compared with other customers;

4) the physical and operational connection between the installation department of Telecom and the core federal undertaking within the telephone system.

In determining whether a particular subsidiary operation forms an integral part of the federal undertaking, the judgment is functional and practical, emphasizing the factual character of the ongoing undertaking, not the technical, legal niceties of corporate structure. To ascertain the nature of the operation, one must assess the normal or habitual activities of the business, which calls for a fairly complete set of factual findings.

As Telecom effectively deprived a reviewing court of the necessary constitutional facts upon which to reach any valid conclusion on the constitutional issue, the matter will not be referred back to the Board to hear evidence.

Comments

McIntyre c. I.A.M. & A. W. 2007 QCCA 1178 (41)

McIntyre was an employee of Air Canada and was also working for the union as an employee, got fired, sued for damages in Superior court, Union claimed that the dispute fell under Canadian Industrial Relations Board, Superior court rejected the claim

Issue is he employee of union or Air Canada? This answer impacts on whether he should have gone to superior court or to Canadian Industrial Relations Board, (if union employee then governed under CCQ superior court, if Air Canada, then CLC CIRB)

Superior court pointed out that wages were paid by union, based on union bylaws (but Air Canada paid for half)

Court of Appeal says the division of the salary isnt necessarily the main indicator

Established in case law that work relationship is maintained if you are not actually working (when he started working for the union, he didnt throw away the job relationship with air Canada)

When appellant was on leave his work relationship with Air Canada was still ongoing

Work relationship with original employer is not destroyed if you assume union functions

CAW Canada, Local 444 v. Great Blue Heron Gaming, 2007 ONCA 814 (49)

Anishnaabeg runs day-to-day business of a casino in Aboriginal lands, employs 1000 workers

Workers voted to unionize with CAW and filed for accreditation under Labour Relations Act (LRA)

Create Code a comprehensive modern-day labour relations code, modelled on Canada Labour Code, but: strikes and lockouts are banned; a union must pay $3000 and obtain permission from the Dbaaknigewin (labour relations tribunal) to speak to workers; and workers must pay $12,000 to file an unfair labour practice complaint.

The appellant maintained the LRA did not apply and Casinos labour relations were governed by the Code

OLRB held that it had jurisdiction and would hear constitutional question

The appellant presented evidence of ancestral customs, practices and traditions focused on ancestral customs and practices of decision-making relating to work-related activities and territorial access. The OLRB rejected this evidence was capable of supporting enactment of Code as the exercise of an aboriginal or treaty right.

1. Did Divisional Court err in too narrowly characterizing the aboriginal and treaty rights claimed? No

2. Did Divisional Court err in not finding that the OLRB had failed to consider the Crowns duty to consult and to accommodate regarding the aboriginal and treaty rights claimed by the First Nation? No

3. Did the Divisional Court err in failing to consider the rights claimed by the First Nation to be an intrinsic aspect of an aboriginal treaty right? No (answered with issue 1)

Three factors in this case must be considered in accordance with the Van der Peet test when characterizing the claimed aboriginal right:

1. The enactment of the Code;

2. (The nature of the LRA with which it conflicts; and

3. The ancestral practice, custom or tradition upon which the appellant relies.

Step One

Subject is labour relations, not the regulation of work activities or controlling access to aboriginal lands, Code is essentially modelled on the Canada Labour Code, establishes a detailed regulatory framework to govern labour relations and to resolve disputes arising between employers and workers in relation to the collective bargaining process.

Step Two

Practice not integral to distinctive culture. In Van der Peet, at para. 56, the Supreme Court rejected aspects of the aboriginal society that are true of every human society (e.g., eating to survive) as practices capable of supporting an aboriginal right and insisted that the focus be on the aspects of the aboriginal society that make that society distinctive. The evidence led as to the traditional regulation of work activity bears no relation to modern collective bargaining. The appellant cannot escape this deficiency by relying on the fact that the aboriginal society organized the work activities of its members: the organization of work at that level of generality is a feature of every human society.

Step Three

failed to establish reasonable continuity between the pre-contact practice, custom or tradition and the contemporary claim. Exhibits no meaningful relationship or connection with pre-contact communal, non-hierarchical practices of decision-making in relation to the organization of work activities and access to territory, inspired by values of family, clan and connection to the land. The Code is market-based, adversarial and inspired by the Canada Labour Code. Its roots are entirely post-contact and derived from modern law dealing with contractual relationships between employers and employees in a post-industrialist capitalist economy. No process or community-wide consultation based on aboriginal custom or tradition was followed when the Code was enacted.

Para 26 application of Van der Peet

4. enactment of the Code

5. essential character (nature of Labour Relations Act with which it conflicts)

6. ancestral practise

First: Modern labour relations code not different from most labour relations code, except for punitive elements ($12 000 fee, union needs permission to speak to workers, ban on strikes)

Community claims that it is regulation of work and controlling access to aboriginal lands

Van der Peet focuses on the subject labour relations not regulation of work / controlling access to aboriginal lands

Court is looking to say more, case reads more like s. 35 rather than labour relations, would need to find the legislative aim interesting recantation of how Code is modern, detailed like Canada labour code, not particularly characterized in manner to be open to claim of access and control of aboriginal land

Second part of the teet nature of labour relations act very similar to modern labour regulatory framework

Third ancestral tradition that it relies on, burden of appellant to show continuity of tradition

Parts of 1 and 2 emphasized with modern detail regulatory framework juxtaposed with community tradition time immemorial

So detailed not attempting to regulate or control land, if you juxtapose that reason in overlapping Aboriginal claims (fed / Prov_ problems with approach more apparent

Comments from Class

Assertion of treaty rights, self government rights in jurisdiction of labour

Beyond narrow federal and provincial

Dialogue between Degamuukw and Van der Peet

Van der Peet captures test for factors of self governance even though Delgamuukw could give broader readings of treaty rights more readily

Reasoning inot robust, doesnt assessment of where there is room for aboriginal claim over labour related matters

Under treaty rights importance of disconnect of enactment

Why demarcating labour relations and work related activities not clear

Nature of the activity where is the line drawn (not clear)

Reminder that division of power has broadened more threshold considerations when defining appropriate jurisdiction for labour relations

II. Collective Bargaining Policy & Industrial Legality

Why does the law recognize collective labour relations? How are trade unions recognized? What is meant by industrial legality? Who does industrial legality exclude?

Collective bargaining policy is shifting a lot based on the impact of human rights instruments, e.g. Charter. One of the questions well be asking is who should be making collective bargaining policy? If you imagine it as a direct relationship between the human rights statute and the employee, without the statute in the middle are the courts themselves shaping collective bargaining policy? And is this desirable?

Collective bargaining legislation governs who has access to rights and entitlements. Also controls employer domination.

E.g. Quebec Labour Code

Article 3 QLC

Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities and management of such association

Article 12 QLC

No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder or finance the formation or the activities of any association of employees, or to participate therein.

No association of employees, or person acting on behalf of any such organization, shall belong to an association of employers or seek to dominate, hinder or finance the formation or activities of any such association, or to participate therein.

Parallel provisions in Canada Labour Code (Well be focusing on Part I):

Article 8. (1) CLC

Every employee is free to join the trade union of their choice and to participate in its lawful activities.

Article 25. (1) CLC

Notwithstanding anything in this Part, where the Board is satisfied that a trade union is so dominated or influenced by an employer that the fitness of the trade union to represent employees of the employer for the purpose of collective bargaining is impaired, the Board shall not certify the trade union as the bargaining agent for any unit comprised of employees of the employer and any collective agreement between the trade union and the employer that applies to any such employees shall be deemed not to be a collective agreement for the purposes of this Part.

These pieces of legislation are exclusive. They exclude workers that do not readily fit the paradigm of employees. But they also exclude workers that have no problem being considered employees under traditional tests.

Note that in Quebec Labour Code, Article 4 looks at municipal constables, and doesnt take away their rights to unionize, but they may only be unions of constables and cannot be in unions with other public servants.

Freedom of Association

We can think of section 2(d) of the Charter defining the scope of freedom of association. Some would argue that freedom of association is fundamental because workers have taken it through labour militancy etc.

Also enshrined in international instruments, and also in soft law like the ILO Declaration.

So FoA is a panoply of rights that may be claimed, and in the labour context is understood to include:

the right to organize as defined in article 3 of QLC

the right to bargain collectively

unfair labour practice protections (there has been less concern about this falling within section 2(d) but eyr can just stamp that out then is it really protected and fundamental?)

right to strike usually around when collective bargain is about to expire or has expired but its not confined. Wed see fascinating results if the right to strike was constitutionalized. It is not.

Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989

Jurisdiction

Facts

The appellant is a member of the RCMP and president of an informal association created with the aim of representing the job-related interests of RCMP members in Quebec. He brought a motion personally before the Superior Court, requesting that para. (e) of the definition of employee in s. 2 of the Public Service Staff Relations Act (PSSRA) and s. 6 of the CLC be declared of no force or effect as violating ss. 2(d), 2(b) and 15(1) of the Canadian Charter of Rights and Freedoms. Paragraph 2(e) expressly excludes RCMP members from the application of the PSSRA and s. 6 of the Canada Labour Code provides that Part I of the Code does not apply to employees of Her Majesty in right of Canada. His motion was dismissed and the Court of Appeal affirmed the decision.

Issues

Do section 2 of the PSSRA and section 6 of the CLC violate 2(d) of the Charter?

Holding

No.

Reasoning

Bastarache J (+Gonthier, McLachlin, Major):

Respect for freedom of association does not require that the appellant be included in either the regime of the PSSRA or any other regime, as s. 2(d) of the Charter protects the appellant directly against such interference by management intended to discourage the establishment of an employee association

Only the establishment of an independent employee association and the exercise in association of the lawful rights of its members are protected under s. 2(d).

What s. 2(d) does and doesnt protect:

1) Section 2(d) protects the freedom to establish, belong to and maintain an association;

2) It does not protect an activity solely on the ground that the activity is a foundational or essential purpose of an association;

3) Section 2(d) protects the exercise in association of the constitutional rights and freedoms of individuals; and

4) Section 2(d) protects the exercise in association of the lawful rights of individuals.

What factors must be considered for discovering the purpose of s.2 of the PSSRA? Extrinsic sources may be used, but when the meaning is clear, they are of little use. Absent ambiguity in the meaning of a provision, it is primarily the statute as a whole which indicates its purpose. This does not mean that the general context should be ignored, but rather that the context is legislative above all else.

Neither the purpose nor the effects of definition of employee infringe s. 2(d) of the Charter. Knowing that the legislative context shows that the purpose of the statute is to govern labour relations in the public sector under a regime of collective bargaining and trade union representation of workers, it is not possible to find that the purpose of the statute infringes s. 2(d).

Looking at the Report of the Preparatory Committee, social and economic context, and expert reports (as Iacobucci and Cory have done) confuses motive of certain govt actors with the purpose of the statute. At best these sources show the fear Parliament felt about the divided loyalty that the existence of an RCMP members union association might create. That in no way suggests that the purpose of the statute at issue was to prevent RCMP members from forming any type of independent association

The exclusion of RCMP members is designed simply to not grant them any status under the PSSRA, namely trade union representation and all it entails (which does not violate the appellants freedom of association). An independent association (i.e. one without status under the statute) enjoys protection analogous to that provided under ss. 6, 8 and 9 of the PSSRA directly under s. 2(d) of the Charter.

With respect to the effects of para. (e), the fact that the appellant cannot invoke the protection of the PSSRA has no impact on his freedom of association under the Charter. The fundamental freedoms protected by s. 2 of the Charter do not impose a positive obligation of protection or inclusion on Parliament or the government, except perhaps in exceptional circumstances which are not at issue here. It is the very nature of the freedoms in s.2 that imposes a negative obligation on the government.

There is no violation of s. 2(d) when certain groups of workers are excluded from a specific trade union regime. The ability to form an independent association and to carry on the protected activities exists independently of any statutory regime.

The exclusion of RCMP members is hardly exclusive. Numerous other groups such as the armed forces, senior executives in the public service, and indeed judges are in a similar situation.

If RCMP management has used unfair labour practices with the object of interfering with the creation of an association it is open to any party with standing to challenge these practices and rules directly by relying on s. 2(d), as the RCMP is part of the government within the meaning of s. 32(1) of the Charter.

No discrimination under s. 2d

Per LHeureux-Dub J. (concurring w/majority):

The majoritys reasons are generally agreed with. Where, as here, the Constitution itself prohibits the activities that a claimant alleges interfere with his freedoms of association and of expression, positive government action to include workers in a particular scheme is not required

I agree with the discussion in the reasons of Cory and Iacobucci JJ. of the importance of freedom of association, and of the inherent vulnerability of workers in the face of management.

Finally, a violation of s. 15(1) of the Charter has not been demonstrated in this case.

Iacobucci and Cory JJ (dissenting):

The provisions in ss. 6, 8 and 9 of the PSSRA and in similar statutes which specifically protect basic associational activities are the product of more than a century of economic and political struggle, and their enactment represented a watershed in Canadian labour relations law. Until the introduction of The Industrial Relations and Disputes Investigation Act, (1948), Parliament had never provided full protection to the right of employees to freedom of association, and the right to be protected against unfair labour practices by management. Associational activities, always important to labour, were asserted as being equally fundamental to the Canadian fabric

The ability of employees, who are a vulnerable group in our society, to form and join an employee association is crucially linked to their economic and emotional well being. A statute whose purpose or effect is to interfere with the formation of employee associations will thus clearly infringe s. 2(d) of the Charter.

If Parliaments purpose in excluding a particular employee group from a labour statute was anti-associational, this is impermissible in light of s. 2(d) of the Charter.

In this case the purpose of para 2(e) is invalid. Parliaments purpose in enacting para. (e) was to ensure that individual RCMP members remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it was feared would result from RCMP labour associations -- the perceived threat of a divided loyalty among RCMP members. There was a perception that RCMP members might disobey superior orders if they were both union members and members of a quasi-military institution

The issue of positive obligations and entitlements does not arise in this appeal. The appellants claim is not premised upon the view that Parliament is obligated to protect him against management interference, or to promote the formation of member associations.

The violation is not justified under section 1 of the Charter because it fails the rational connection part of the proportionality test. In fact, the exclusion of RCMP members from the entirety of the PSSRA to secure a stable national police may actually contribute to the very labour unrest sought to be avoided.

Comments

Note that in dissent, Iacobucci and Cory characterize vulnerability as residing within the employee qua employee (as opposed to in the broader societal context) by virtue of being an eyee in a work context, you are in a vulnerable vis--vis the employer.

But what happens if youre not in any statute, and the SCC says that you dont have to be included under s. 2(d) do you really have freedom of association? SCC seems to think sure you do!

Seems like theyre saying ( Look you have an informal association here and if you have a specific problem, like youre not allowed to strike when you want to, then come back to us

Why would we want to have collective bargaining for peeps who are not the weakest workers? There are a whole host of issues that have nothing to do with bargaining for remuneration. There are issues of workplace relations, governance, seniority, etc. Theres an assumption that the state is only for the poor.

(I) Freedom of Association for Agricultural Workers

In Ontario

Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016

Jurisdiction

Ontario to SCC

Facts

Agricultural workers had always been excluded from Ontarios labour relations regime until 1994 when the Ontario legislature enacted the Agricultural Labour Relations Act, 1994 (ALRA), which extended trade union and collective bargaining rights to agricultural workers. A year later, by virtue of s. 80 of the Labour Relations and Employment Statute Law Amendment Act, 1995 (LRESLAA), the legislature repealed the ALRA in its entirety, in effect subjecting agricultural workers to s. 3(b) of the Labour Relations Act, 1995 (LRA), which excluded them from the labour relations regime set out in the LRA. Section 80 also terminated any certification rights of trade unions, and any collective agreements certified, under the ALRA.

Issues

Is the exclusion of agricultural workers from the Labour Relations Act unconstitutional under s.2(d) and 15(1) of the Charter?

Holding

Yes, appeal allowed.

Reasoning

Bastarache J (+ McLachlin, Gonthier, Iacobucci, Binnie, Arbour and LeBel)

The purpose of s. 2(d) of the Charter is to allow the achievement of individual potential through interpersonal relationships and collective action. This purpose commands a single inquiry: has the state precluded activity because of its concerted or associational nature, thereby discouraging the collective pursuit of common goals?

NOTE: In BC Health Services, McLachlin says that this a more contextual approach ( the whole of the context has to be considered.

However, in some cases s. 2(d) should be extended to protect activities that are inherently collective in nature, in that they cannot be performed by individuals acting alone. To limit s. 2(d) to activities that are performable by individuals would ... render futile these fundamental initiatives. Certain union activities may be central to freedom of association. (*Big deal ( recognizing that s.2(d) has a collective dimension!*)

In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups. The distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime contributes substantially to the violation of protected freedoms.

Conflicting claims concerning the meaning of troubling comments in the legislature make it impossible to conclude that the exclusion of agricultural workers from the LRA was intended to infringe their freedom to organize, but the effect of the exclusion in s. 3(b) of the LRA is to infringe their right to freedom of association

The claimants are not trying to claim a constitutional right to inclusion in the LRA, but simply the freedom to create a trade association. This freedom to organize exists independently of any statutory enactment, although its effective exercise may require legislative protection in some cases

A proper evidentiary foundation of substantial interference with the exercise of protected s. 2(d) activity must be provided before creating a positive obligation under the Charter. A failure to include someone in a protective regime may affirmatively permit restraints on the activity the regime is designed to protect. The rationale behind this is that underinclusive state action falls into suspicion not simply to the extent it discriminates against an unprotected class, but to the extent it substantially orchestrates, encourages or sustains the violation of fundamental freedoms.

ILO convention provisions confirm that discriminatory treatment implicates not only an excluded groups dignity interest, but also its basic freedom of association. Thus while inclusion in legislation designed to protect such freedoms will normally be the province of s. 15(1) of the Charter, claims for inclusion may, in rare cases, be cognizable under the fundamental freedoms.

Application in this Case:

In this case, the evidentiary burden of substantial interference has been established. While the mere fact of exclusion from protective legislation is not conclusive evidence of a Charter violation, the evidence indicates that, but for the brief period covered by the ALRA, there has never been an agricultural workers union in Ontario and agricultural workers have suffered repeated attacks on their efforts to unionize.

The inability of agricultural workers to organize can be linked to state action. The exclusion of agricultural workers from the LRA functions not simply to permit private interferences with their fundamental freedoms, but to substantially reinforce such interferences. The inherent difficulties of organizing farm workers, combined with the threat of economic reprisal from employers, form only part of the reason why association is all but impossible in the agricultural sector in Ontario.

Equally important is the message sent by the exclusion of agricultural workers from the LRA, which delegitimizes their associational activity and thereby contributes to its ultimate failure. The most palpable effect of the LRESLAA and the LRA is, therefore, to place a chilling effect on non-statutory union activity.

SECTION 1: Fails on minimal impairment test. The categorical exclusion of agricultural workers is unjustified where no satisfactory effort has been made to protect their basic right to form associations. The exclusion is overly broad as it denies the right of association to every sector of agriculture without distinction. The reliance on the save the family farm justification ignores an increasing trend in Canada towards corporate farming and complex agribusiness. More importantly, no justification is offered for excluding agricultural workers from all aspects of unionization, in particular those protections that are necessary for the effective formation and maintenance of employee associations.

Not necessary to deal with s.15(1).

LH-D (concurring in result):

The evidence demonstrates that legislatures purpose in enacting the exclusion was to ensure that persons employed in agriculture remained vulnerable to management interference with their associational activities, in order to prevent the undesirable consequences which it had feared would result from agricultural workers labour associations.

On s.15. The occupational status of agricultural workers constitutes an analogous ground for the purposes of an analysis under s. 15(1). Agricultural workers generally suffer from disadvantage and the effect of the distinction made by their exclusion from the LRA is to devalue and marginalize them within Canadian society.

Major J (dissenting):

The appellants failed to demonstrate that the impugned legislation has, either in purpose or effect, infringed activities protected by s. 2(d) of the Charter. In particular, s. 2(d) does not impose a positive obligation of protection or inclusion on the state in this case. Prior to the enactment of the LRA, agricultural workers had historically faced significant difficulties organizing and the appellants did not establish that the state is causally responsible for the inability of agricultural workers to exercise a fundamental freedom.

Agricultural workers are not an analogous group for the purposes of s. 15(1) of the Charter and, as a result, the exclusion of agricultural workers from the LRA does not violate their equality rights.

Comments

Note: Although Bastarache J. took care to align the reasons in Dunmore with the Supreme Court's earlier freedom of association decisions, the case marks a major change in direction. He held that freedom of association imposes a positive obligation on the government to protect the rights of vulnerable workers (such as agricultural workers) to join and participate in unions and to make collective representations to their employer.

Bastarache J. also made it clear that the freedom of association protected in the Charter has a collective dimension, referring to both Dickson C.J.'s dissent in the Alberta Reference and the ILO's jurisprudence as support..

Nevertheless, he was careful to limit the extent of positive obligations on the state, and reiterated that the freedom of association does not include collective bargaining and the right to strike.

Dunmore:

Reasoning:

History has shown and Canadas legislatures have recognized that a posture of government restraint in the area of labour relations will expose most workers not only to a range of unfair labour practices, but potentially to legal liability under common law inhibitions on combinations and restraints of trade.

In order to make the freedom to organize meaningful, in this very particular context, s. 2(d) of the Charter may impose a positive obligation on the state to extend protective legislation to unprotected groups.

The distinction between positive and negative state obligations ought to be nuanced in the context of labour relations, in the sense that excluding agricultural workers from a protective regime contributes substantially to the violation of protected freedoms.

Scope of state rationale in para 26

Article II of Convention 87

Courts turn to intl law and looks at the meaning of freedom of ass in article 2 of some ILO stuff. Applies to workers without distinction

Note that in the majority reasoning, Bastarache notes that although provincial jurisdiction has prevented Canada from ratifying Convention No. 11, the conventions provide a normative foundation for prohibiting any form of discrimination in the protection of trade union freedoms.

Committee on Freedom of Association Report Canada (Case No. 1900), Report #308 (1997)

Jurisdiction

Facts

Canadian Labour Congress alleges that without statutory protection, workers are vulnerable to penalties through Bill 7. Common law has not recognized the binding nature of collective agreements. As a result, to be denied access to the statutory machinery of collective bargaining is to be denied access to collective bargaining in any meaningful sense. While the NDP govt had expanded protections, the current (Harris) govt repealed previous legislation and explicitly excluded domestic workers and agricultural workers two of the most vulnerable groups of workers from protection under the Labour Relations Act. The workers excluded from the 1995 Labour Relations Act also have no right to strike and are not protected from the imposition of penalties or dismissal should they strike. Furthermore, the present Government in Ontario has eliminated the application of successor and related employer rights for Crown employees and those employed in the building services sector.

The Government, in its reply, notes that a challenge has been brought in the Ontario courts and indicates its desire for the Committee to once again postpone its examination of this complaint until the outcome of the case. The Government also provides rationales for Bill 7. As concerns the repeal of the Agricultural Labour Relations Act, 1994, the Government indicates that agriculture in Ontario is overwhelmingly dominated by family farms. The sector is thus characterized by extremely low profit margins and unstructured, highly personal working relationships which make a statutory labour relations regime (and collective bargaining dispute resolution mechanisms in particular) inappropriate. The Government indicates its view that labour laws originally enacted with industrial settings in mind are not always suitable for non-industrial workplaces, such as private homes and professional offices, where occupational duties and professional obligations may not be compatible with the highly formalized terms and conditions of employment and at least somewhat adversarial nature of relationships typical of a unionized environment

Issues

Re: Legislative repeal of statutory access to collective bargaining, termination of existing organizing rights and nullification of collective agreements

Reasoning

The Committee:

The Committee notes that while domestic solutions are good, its competence to examine allegations is not subject to the exhaustion of national procedures.

Article 2 of Convention No. 87 (ratified by Canada) is designed to give expression to the principle of non-discrimination in trade union matters, and the words "without distinction whatsoever" used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, etc.

Furthermore, by virtue of the principles of freedom of association, all workers - with the sole exception of members of the armed forces and police - should have the right to establish and to join organizations of their own choosing.

The Committee calls upon the Government to take the necessary measures to ensure that all these workers all enjoy the protection necessary, either through the LRA or by means of occupationally specific regulations, to establish and join organizations of their own choosing

While not neglecting the importance it places on the voluntary nature of collective bargaining, the Committee recalls that measures should be taken to encourage and promote the full development and utilization of machinery for voluntary negotiation. The absence of any statutory mechanism is an impediment to the objective of forming independent organizations capable of concluding collective agreements

Re: successor rights in the construction industry: The Committee would, nevertheless, point out that, in the absence of sufficient protective measures, a new contractor could take actions which would threaten the right to organize and collective bargaining rights. It therefore requests the Government to take measures to ensure that these rights are adequately protected

The Committee then makes a bunch of recommendations that govt of Ontario should take the necessary measures to extend protection blah blah.

Comments

Committee on Freedom of Association Report Canada (Case No. 1900), Report #330 (2003)

Jurisdiction

Facts

This case was last examined in 1999. in December 2001 by the Supreme Court of Canada, which ruled that the exclusion of agricultural workers from the right of freedom of association was unconstitutional, and gave the Government 18 months to remedy the situation. The CLC wrote to the Minister of Labour in December 2001, requesting that the exclusion of agricultural workers be repealed. No action was taken and no consultations were undertaken with organized labour.

In a communication of 3 October 2002, the Government states that, while the Supreme Court decision in Dunmore mandates the extension of some legislative protections to agricultural workers to ensure they have the right to form associations, it does not require their inclusion in a full statutory bargaining regime. The Government adds that this decision concerns only agricultural workers, and that it does not plan any legislative amendments as regards the other categories of workers concerned in this case; it reiterates that there are legitimate reasons for the exclusion of certain workers from the general statutory bargaining regime.

Issues

Legislative repeal of statutory access to collective bargaining, termination of existing organizing rights and nullification of collective agreements

Reasoning

The Committee:

As regards agricultural workers, the Committee further notes that the Government of Ontario introduced Bill No. 187 in October 2002 (Agricultural Employees Protection Act, 2002) which gives agricultural employees the right to form or join an employees association; it appears however that this legislation does not give agricultural workers the right to establish and join trade unions and to bargain collectively

As regards the other categories of workers concerned in the present complaint, the Committee notes with regret the Governments stated intention to maintain the status quo. Recalling once again that all workers, with the sole possible exception of armed forces and police, should have the right to organize, the Committee strongly urges the Government to amend its legislation so that all the categories of workers fully enjoy this right and to keep it informed of developments.

Comments

Issues of division of powers,

See Fraser for update on the situation

In Quebec

QLC s. 21.5 on Farm Employees

Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division unless at least three of such persons are ordinarily and continuously so employed.

Travailleurs et travailleuses unis de lalimentation et du commerce, section locale 501 c. La Lgumire Y. C. inc. et al. (24 Sept 2007), 2007 QCCRT 0467

Jurisdiction

Facts

On August 21, 1996, the union requested to certify All employees in the sense of the Labour Code, with the exception of those normally excluded by law. In October 2006, the union requested that the bargaining unit be revised to include, All workers and agricultural workers covered by a government program on foreign workers to the employment of the employer.

The program in question is the Seasonal Agricultural Workers Program. A Memorandum of Understanding between Canada and Mexico established guidelines for wages, the provision of accommodation, the requirement to sign an emynt K, and to review the K. The MOU also specifies that it is an administrative arrangement and not an intergovernmental or international treaty. The MOU also specifies arrangements to be made in Quebec and Mexico to administer the whole program.

The emynt K provided for in the MOU includes the various provisions:

The eyer agrees to hire the eyee for at least 240 hours over a period of between 6 weeks and 8 months

The normal working day is 8 hours, but in case of emergency the eyer may require the eyee to extend it.

After 6 days, the eyee is entitled to a day off but when necessary the eyee may postpone it at the request of the eyer

At least 2 rest periods of 10 minutes (paid or not, depending on provl statute)

Free housing that is adequate

The higher of three wages: 1) the provincial minimum; 2) the HRSDC rate established for agricultural workers; 3) the wage rate paid by the eyer to CDN workers

Health and workplace protection

The eyee agrees not to work anywhere else, except if there is a breach of K by eyer

This contract shall be governed by the laws of Canada and the Province of employment

Employer must demonstrate a need not fulfilled by Canadian workers, and HRSDC is informed of this need. The Dept of Immigration in Quebec must approve and issues a certificate for a certain # of workers which is sent to Citizenship and Immigration Canada. The Mexican government recruits.

Seasonal agricultural workers come and work on individual farms under a contract

Minimum 40 hour work week, unless the employer needs you to work more

1 day off a week, unless the employer needs you to work more

Two ten minute work periods, paid or not

-From the end of April to mid-October, Mexican workers alternate on different workstations. In mid-October, all that remains is the driver and the engineer who finish a few days later.

Issues

1) Is the Code inapplicable since, with respect to these employees, it is in conflict with federal law? 2) Does article 21(5) of the Labour Code prevent agricultural workers from being certified?

Holding

1) No. 2) Yes.

Reasoning

Conflict of Laws

There is no conflict between the Labor Code and the federal program, as per the MOU. The program is specifically an "administrative intergovernmental agreement" to "facilitate the hiring of Mexican seasonal farm workers in all regions of Canada where their presence is deemed necessary by the Canada to meet its agricultural market. It is specifically stated that workers will be treated the same as Cdn workers.

This program allows the governments of Canada and Quebec to allow producers to use a more easy and quick to facilitate entry and the use of temporary foreign workers, while ensuring compliance with laws and regulations respective on such workers.

This provided K only has to be used if the employer wishes to take advantage of the SAWP.

Accordingly, the Protocol and the Agreement shall not have the effect of encroaching on the jurisdiction of Quebec in the field of labour relations jurisdiction granted under the Constitution Act 1867 and the provisions of the Labour Code applies.

Note that these employers meet the definition of employer within the meaning of the Labour Code and the SCC decision of Pointe-Claire (1997).

The recommended K are only minimal requirements and nothing prevents employers from providing working conditions exceeding those referred to in the K.

Certification, which allows collective bargaining for better working conditions, has a purpose for these workers and the union that wants to represent them.

Furthermore, the seasonal nature of the work does not justify denial of the status of an employee, especially when there is a high probability that they return to work the same employer for the following year

Status as employee

Article 21(5) of the Quebec Labour Code states: Persons employed in the operation of a farm shall not be deemed to be employees for the purposes of this division unless at least three of such persons are ordinarily and continuously so employed.

The words "ordinarily and continuously" must be interpreted with common sense. This section appears in the Division on Certification of Associations of employees, so it means that farm employees cannot be certified unless there are at least three ordinarily and continuously employed.

This phrase indicates permanent and non-seasonal employment of at least three. This reading of the phrase is supported by doctrine and discussions in the National Assembly where a minister said: That's why we put the word ordinarily and our goal is to protect workers who work all year long for growers or "gentlemen farmers

Given that there is not at least three people and continuously ordinarily used in the operation of Les Fermes Hotte & Wan Winden inc. and La Lgumire Y.C. Inc., these people are not deemed to be employees for purposes of accreditation by an association of employees. As a result, requests for accreditation for these farms must be rejected.

Comments

III. Relationship between Freedom of Association & Collective Bargaining Policy

(i) The Labour Trilogy: No Right to Collective Bargaining or Strike

Note: Dunmore and two other cases (Pepsi-Cola and Advance Cutting) constituted the second labour trilogy. Now were going to look at the first labour trilogy that informed some of the reasoning of the second trilogy.

What should govern labour relations framework? Charter (fundamental?), labour statutes, alternative statutes, CML these cases show the importance of CML and statute

These cases grapple with the meaning and extent of 2d

Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313

Jurisdiction

Facts

Several public sector unions challenged a bundle of Alberta statutes that placed restrictions on collective bargaining by provincial government employees, firefighters, police, and hospital workers by prohibiting strikes, restricting the scope of bargaining, and imposing compulsory arbitration.

Alberta referred to the Alberta Court of Appeal several constitutional questions which raised two main issues:

(1) whether the provisions of the Public Service Employee Relations Act, the Labour Relations Act and the Police Officers Collective Bargaining Act of Alberta, which prohibit strikes and impose compulsory arbitration to resolve impasses in collective bargaining, were inconsistent with the Canadian Charter of Rights and Freedoms; and

(2) whether the provisions of the Acts relating to the conduct of the arbitration and which limit the arbitrability of certain items and require the arbitration board to consider certain factors in making the arbitration award were inconsistent with the Charter. The first Act applied to public service employees, the second to firefighters and hospital employees and the third to police officers.

The majority of the Court of Appeal of Alberta answered the first issue in the negative and declined to answer the second issue.

Issue

Does the Alberta legislation violate the guarantee of freedom of association in s. 2(d) of the Charter and, if so, whether such violation can be justified under s. 1?

Holding

No, appeal dismissed.

Reasoning

Le Dain (+ Beetz and La Forest JJ) (majority):

The constitutional guarantee of freedom of association in s. 2(d) of the Charter does not include, in the case of a trade union, a guarantee of the right to bargain collectively and the right to strike, and accordingly I would dismiss the appeal.

It is essential to keep in mind that this concept must be applied to a wide range of associations or organizations of a political, religious, social or economic nature. It is in this larger perspective that one must consider the implications of extending a constitutional guarantee to the right to engage in particular activity on the ground that the activity is essential to give an association meaningful existence.

I reject the premise that without such additional constitutional protection the guarantee of freedom of association would be a meaningless. Freedom of association is not only important to the other freedoms in s.2, but its importance in the work context is reflected in its express recognition in labour protection legislation.

What is in issue here is not the importance of freedom of association in this sense, but whether particular activity of an association in pursuit of its objects is to be constitutionally protected or left to be regulated by legislative policy. The rights for which constitutional protection is sought the modern rights to bargain collectively and to strike, involving correlative duties or obligations resting on an employer are not fundamental rights or freedoms. They are the creation of legislation, involving a balance of competing interests in a field which has been recognized by the courts as requiring a specialized expertise.

OBITER: It is surprising that in an area in which this Court has affirmed a principle of judicial restraint in the review of administrative action we should be considering the substitution of our judgment for that of the Legislature by constitutionalizing in general and abstract terms rights which the Legislature has found it necessary to define and qualify in various ways according to the particular field of labour relations involved.

McIntyre J:

The freedom of association in s. 2(d) of the Charter did not give constitutional protection to the right of a trade union to strike as an incident to collective bargaining.

Freedom of association under the Charter means 1) the freedom to engage collectively in those activities which are constitutionally protected for each individual, and 2) the freedom to associate for the purposes of activities which are lawful when performed alone.

Freedom of association, however, does not vest independent rights in the group. People cannot, by merely combining together, create an entity which has greater constitutional rights and freedoms than they, as individuals, possess. The group can exercise only the constitutional rights of its members on behalf of those members.

It follows as well that the rights of the individual members of the group cannot be enlarged merely by the fact of association. Therefore, the association does not acquire a constitutionally guaranteed freedom to do what is unlawful for the individual. This definition fully realizes the purpose of freedom of association which is to ensure that various goals may be pursued in common as well as individually.

When this definition of freedom of association is applied, it is clear that freedom of association does not guarantee the right to strike. Since the right to strike is not independently protected under the Charter, it can receive protection under freedom of association only if it is an activity which is permitted by law to an individual.

Further, read in the context of the whole Charter, s. 2(d) cannot support an interpretation of freedom of association which could include a right to strike. Although strikes are commonplace in Canada and have been for many years, the framers of the Constitution did not include a specific reference to the right to strike in the Charter. This omission, taken with the fact that the overwhelming preoccupation of the Charter is with individual, political, and democratic rights with conspicuous inattention to economic and property rights, speaks strongly against any implication of a right to strike.

Finally, it must be recognized that the right to strike accorded by legislation throughout Canada is of relatively recent vintage. It cannot be said that at this time it has achieved status as a fundamental right which should be implied in the absence of specific reference in the Charter.

Dickson & Wilson (dissenting):

The purpose of the constitutional guarantee of freedom of association in s. 2(d) of the Charter is to recognize the profoundly social nature of human endeavours and to protect the individual from state-enforced isolation in the pursuit of his or her ends.

Section s. 2(d) must extend to give effective protection to the interests to which the constitutional guarantee is directed and must protect the pursuit of the activities for which the association was formed.

The overarching consideration remains whether a legislative enactment or administrative action interferes with the freedom of persons to join and act with others in common pursuits.

In the context of labour relations, the guarantee of freedom of association in s. 2(d) of the Charter includes not only the freedom to form and join associations but also the freedom to bargain collectively and to strike.

Freedom of association is the cornerstone of modern labour relations. Throughout history, workers have associated to overcome their vulnerability as individuals to the strength of their employers, and the capacity to bargain collectively has long been recognized as one of the integral and primary functions of associations of working people. It remains vital to the capacity of individual employees to participate in ensuring equitable and humane working conditions.

Under our existing system of industrial relations, the effective constitutional protection of the associational interests of employees in the collective bargaining process also requires concomitant protection of their freedom to withdraw collectively their services, subject to s. 1 of the Charter. Indeed, the right of workers to strike is an essential element in the principle of collective bargaining.

This is not to say that s. 2(d) of the Charter entrenches for all time the existing system of labour relations. The area of industrial relations is subject to significant legislative regulation. The point is that this regulation cannot define the scope of the underlying freedom.

In the present case, the three statutes prohibited strikes and defined a strike as a cessation of work or refusal to work by two or more persons acting in combination or in concert or in accordance with a common understanding. There is no doubt that the Alberta legislation was aimed at foreclosing a particular collective activity because of its associational nature. The very nature of a strike is to influence an employer by joint action which would be ineffective if it were carried out by an individual.

No justification under s.1. Protection of essential services is a valid objective and there is rational connection, but prohibition of the right to strike of all hospital workers and public service employees was too drastic a measure for achieving the object of protecting essential services (i.e. no minimal impairment). Without evidence, it is not self-evident that interruption of these services would endanger the lives and safety of the population.

Furthermore, the arbitration system provided by the Acts was not an adequate replacement for the employees' freedom to strike. Serious doubt is cast upon the fairness and effectiveness of an arbitration scheme where matters which would normally be bargainable are excluded from arbitration.

"If freedom of association only protects the joining together of persons for common purposes, but not the pursuit of the very activities for which the association was formed, then the freedom is indeed legalistic, ungenerous, indeed vapid.

Comments

Note: Dickson on rights vs. freedoms:

"Rights" are said to impose a corresponding duty or obligation on another party to ensure the protection of the right in question whereas "freedoms" are said to involve simply an absence of interference or constraint. This conceptual approach to the nature of "freedoms" may be too narrow since it fails to acknowledge situations where the absence of government intervention may in effect substantially impede the enjoyment of fundamental freedoms. Nonetheless, for the purposes of this appeal, we need not determine whether "freedom" may impose affirmative duties on the state, because we are faced with a situation where overt government action in the form of legislation is alleged to interfere with the exercise of freedom of association.

PSAC v. Canada, [1987] 1 S.C.R. 424

Jurisdiction

Facts

The Public Service Alliance of Canada (PSAC) is a union representing approximately 168,000 employees of the federal government and its agencies. The Act applied only to the federal public sector employees (s. 3) and employees of certain railway companies (s. 3(4) (the latter not represented in this appeal). It defined a compensation plan as provisions for determining and administering compensation, including provisions in collective agreements. The Act automatically extended compensation plans in force on June 29, 1982 for a period of two years and fixed the wage increases to 6 per cent in the first year and 5 per cent for the second.

For the groups not subject to a compensation plan on June 29, 1982, the Act extended the previous compensation plan for one year and provided for an increase of 9 per cent for that year. At the end of that period, these plans were extended for a further two years with the "6 and 5" increases. During the period of extension, the compensation plans covered by the Act (s. 6(1)(a)) and those collective agreements or arbitral awards which included such a compensation plan (s. 6(1)(b)) continued to be in force without change, thus precluding collective bargaining on compensatory and non-compensatory components of collective agreements. Section 6 is subject to s. 7 which permitted the parties to a collective agreement to amend non compensatory terms and conditions by agreement only, but it did not authorize employees to strike or submit proposed amendments to binding arbitration. Under s. 16, the Governor in Council was empowered to terminate the application of the Act in respect of an employee or a group of employees to which the Act applied.

The Federal Court, at trial and on appeal, held that the Act violated neither the right of freedom of association in s. 2(d) of the Charter (because s.2(d) was not held to include the right to bargain collectively or strike) nor the right to equality before the law in s. 1(b) of the Canadian Bill of Rights.

Issues

1) Does the Public Sector Compensation Restraint Act violates s. 2(d) of the Charter? 3) Does the Act violate s. 1(b) of the Canadian Bill of Rights?

Holding

1) 2) No (Im not dealing with this issue not mentioned in class)

Reasoning

Dickson CJC (dissenting in part):

Section 2(d)

For the reasons I have given in the Alberta Reference, I believe that freedom of association in the labour relations context includes the freedom to participate in determining conditions of work through collective bargaining and the right to strike. The Public Sector Compensation Restraint Act, by automatically extending the terms and conditions of collective agreements and arbitral awards and by fixing wage increases for a two year period, infringes the freedom of public sector employees to engage in collective bargaining.

Furthermore, a union has no effective bargaining power under s.7 or s.16 since it lacks the legal capacity to withdraw services collectively or even to remit a dispute to binding arbitration. Without the capacity to strike or to submit a dispute to binding arbitration, employees seeking non compensatory amendments under s. 7, or employees requesting the Governor in Council to suspend the operation of the Act are not in an effective position to bargain.

Section 1

The objective of reducing inflation was, at the time of passage of the Act, of sufficient importance for the purpose of s. 1 of the Charter, but not all the means chosen to achieve that objective were "reasonable and demonstrably justified".

The important leadership role of the government in economic matters and its concern to control wage demands and production costs in its fight against inflation justified, under s. 1, the imposition of controls on federal public sector employees and the suspension of collective bargaining on compensation issues, including non pecuniary benefits. I am also prepared to accept that the temporary suspension of collective bargaining on compensation issues was a justifiable infringement of freedom of association having regard to the third limb of the proportionality test.

Furthermore, I cannot accept that Parliament must consider the government to be just another employer. The govt plays an important leadership role, and there is a psychological component of that role in relation to economic matters. Rightly or wrongly, the public sector is perceived to occupy a central role in defining the parameters of negotiations between employer and employee. By enacting its "6 and 5" programme, Parliament intended to send a dramatic message conveying its resolve to fight inflation.

But the removal of the right to strike over non-compensatory issues as well as the right to submit such disputes to binding arbitration was not a justifiable infringement of the freedom of association. The effective nullification of the employees' ability to bargain collectively on non-compensatory issues represented a profound intrusion into the associational freedoms of workers, and one which bore no apparent connection to the objectives of an inflation restraint programme.

The Act swept away virtually the full range of collective bargaining activities of federal employees, seemingly without any thought as to whether such draconian measures were necessary. It follows that the Act, by means of s. 6(1)(b), over reached the otherwise acceptable justification offered for the Act's impairment of public sector workers' freedom of association. Therefore, s. 6(1)(b) is of no force and effect. The remainder of the Act with the exception of s. 3(4) upon which no opinion was expressed was justifiable under s. 1 of the Charter.

McIntyre J:

For the reasons I expressed in the Alberta Reference, the Public Sector Compensation Restraint Act did not interfere with collective bargaining so as to infringe the Charter guarantee of freedom of association. My finding in the Alberta Reference does not, however, preclude the possibility that other aspects of collective bargaining may receive Charter protection under the guarantee of freedom of association.

The Act did not restrict the role of the trade union as the exclusive agent of the employees. It required the employer to continue to bargain and deal with the unionized employees through the Union. It also permitted continued negotiations between the parties with respect to changes in the terms and conditions of employment which did not involve compensation.

The effect of the Act was simply to deny the use of the economic weapons of strikes and lockouts for a two year period. This may limit the bargaining power of trade union but it did not violate s. 2(d) of the Charter which does not include a constitutional guarantee of a right to strike.

Le Dain (+ Beetz and La Forest JJ):

For the reasons I expressed in the Alberta Reference I am of the opinion that the guarantee of freedom of association in s. 2(d) of the Charter does not include a guarantee of the right to bargain collectively and the right to strike. I would accordingly dismiss the appeal and answer the constitutional questions in the manner of McIntyre.

Wilson J (dissenting):

I agree with the CJ that the Act violates s.2(d), but I disagree with him that it is saved under s.1.

Although the objective of controlling inflation was at the time of the passage of the Act of sufficient importance to warrant a limitation of freedom of association, the imposition of the limitation only on the federal public sector employees was not a measure carefully designed to achieve the objective in question and did not meet the test set out by this Court in Oakes. The measures adopted were arbitrary and unfair.

They were imposed upon a captive constituency, were not, on the government's own admission, expected to have any direct effect on inflation and could not possibly constitute an example of voluntary compliance for others to follow.

Comments

Canadian Bill of Rights

1. It is hereby recognized and declared that in Canada there have existed and shall continue to exist without discrimination by reason of race, national origin, colour, religion or sex, the following human rights and fundamental freedoms, namely: [...]

(b) the right of the individual to equality before the law and the protection of the law;

PSAC

McIntyre J ( he tried to give substantive reasons and leaves some space for action including the potential for collective bargaining, but says that this isnt one of those cases so doesnt get to s.1 at all

Says the Act did not restrict the role of the trade union as the exclusive agent of the employees. It required the employer to continue to bargain and deal with the unionized employees through the Union. It also permitted continued negotiations between the parties with respect to changes in the terms and conditions of employment which did not involve compensation.

Finds that the effect of the Act was simply to deny the use of the economic weapons of strikes and lockouts for a two-year period. This may limit the bargaining power of trade union but it did not violate s. 2(d) of the Charter which does not include a constitutional guarantee of a right to strike. ( Left the door opening in area of collective bargaining.

Dickson (dissenting):

Starts off by recognizing freedom to participate in determining conditions of work through collective bargaining and the right to strike. He finds off the bat that by automatically extending the terms and conditions of collective agreements and arbitral awards and by fixing wage increases for a two-year period, the Act infringed the freedom of public sector employees to engage in collective bargaining

Bulk of his de