WATSON REPORT - Watson Labour Lawyers by maclaren1


									WATSON                                            REPORT
Watson & Associates Labour Law yers                                              FALL 2005


                           WE’RE ON THE MOVE
 In a season of many changes - changes to mandatory retirement legislation, changes to the
 Labour Relations Act, changes to the Employment Standards Act - Watson & Associates is
 making some of our own. We’re on the move! We’re keeping the same fax, phone, e-mail
 and web addresses, but as of October 5, 2005, you will be able to find the main Watson &
 Associates office in Suite 370 at 170 Attwell Drive, Toronto, Ontario. If that address sounds
 familiar, it’s probably because you had an arbitration or mediation at the JPR Arbitration
 Centre. Our new offices are to your left as you get off the elevator… an appropriate
 direction for a trade union law firm!

 Changes are also coming online for Watson & Associates. We will be redesigning and
 introducing a few new interactive options for our website. Please keep checking back at
 www.watsonlabourlaw.com to see our regularly updated stories on labour issues that affect
 our clients.

 We’re also pleased to introduce Laurie Kent as a new lawyer with the firm. Laurie had a
 number of careers before going to law school: documentary filmmaker, union activist and
 organizer, and actress. She looks forward to meeting your legal needs in the future.

 It goes without saying that we will ensure that our clients continue to get the personal,
 committed and efficient service they have come to expect from Watson & Associates. The
 whole team at Watson & Associates looks forward to welcoming you to our new offices
                                               In This Issue…

                                                     OHIP Premium issue still undecided
                                                     CBC Lockout
                                                     Privatization of Liquor Stores Delayed
                                                     Lighter Side of Labour Relations
                                                     Walmart Update
                                                     Dirty Tricks at Lakeside
                                                     Labour Board Roundup
                                                     Dress Codes and Facial Jewelry
                                                     Corporate Liability and Trade Unions
                                                     Labour Happenings across the country
                                                     Around the World in Labour Relations
                                                     Marketing 101 for Unions

Watson & Associates Labour Lawyers                                                             1
           WATSON REPORT                             –    FALL         2005

                      ONTARIO HEALTH PREMIUM
                         ISSUE STILL
off, demote or otherwise discipline an employee UNDECIDED
for taking compassionate care leave.
After a year of arbitral jurisprudence regarding the issue of an employer’s
responsibility to pay the new Ontario Health Premium on behalf of its employees,
there Minister Chris Bentley announced a raise
Labour is still no consensus amongst arbitrators. Although the majority of arbitrators
to the minimum wage on December 1, 2003. As
have found that employers are not responsible to pay the premium, even where the
collective agreement this was an election
you are probably aware,specifies that the employer is required to pay OHIP premiums
promise made by the Liberals. This is the first premiums, the issue is by no means
and/or other government levied health
decided, particularly as most of Currently
raise to minimum wage in nine years.the early decisions are heading to judicial review.
minimum wage is $6,85 per hour.
The OHIP wage raised to $7.15 in a number of collective agreements were first
The minimumpremiums referencedper hour
introduced in and             It was increases
February 1, 20041972.there will be common for employers and employees to have
agreements reaches employer would
each year until itthat the $8.00 per hour on pay all or part of the premiums. In 1989,
OHIP premiums were replaced by a payroll tax called the Employer Health Tax that
was to be paid by the employer only. Although individual employees were no
longer required to pay any government levied health premiums, many unions
maintained provisions in their collective agreements that required the employer to
pay the OHIP premiums.

The Ontario Health Premium (OHP) which was introduced by the Liberal
government to take effect July 1, 2004, is arguably the return of government levied
health premiums. The OHP is collected as a withholding tax by employers in a
manner similar to employment insurance premiums and the rate paid is based on
an individual’s taxable income. Because the OHP is collected by employers as a
withholding tax, rather than as a premium paid by an individual, many employers
contend that even where collective agreements obligate the employer to pay health
premiums. Employers have taken the position that the OHP is a tax, not a
premium, and that therefore they are not responsible for paying an OHP “tax.”
The Liberal government has been uniformly unhelpful in this matter, repeatedly
siding with employer and stating that the OHP is a “tax” (despite the fact that it is
called a premium) for which individuals, not employers are responsible for paying.

Many arbitrators have found that given the fact that the OHP is collected as a tax,
this is conclusive reasoning as to why employers are not on the hook for the OHP
premium. Others have not. Other arbitrators have determined that whether the
OHP is a premium or a tax is completely irrelevant and have focused on the
collective agreement language instead. In decisions in which the arbitrators focus
on the collective agreement language, the usual conclusion reached is that the
employer is responsible for paying the premium.

Perhaps the most helpful decision for unions is one of the most recently issued
ones. In Ontario Power Generation and Power Workers Union (unreported) May
25, 2005 (Swan), Arbitrator Swan concluded that the Employer was responsible for
paying the OHP on behalf of employees to the extent that the OHP was based on

Watson & Associates Labour Lawyers                                                        2
          WATSON REPORT                           –   FALL         2005

the earnings with the Employer only. Arbitrator Swan commented:

      …the correct way to look at this issue is to consider what reasonable
      parties in the position of the Employer and the Union must have
      intended when they negotiated the language in the current collective
      agreement. Obviously, that renegotiation took place in a universe where
      there was no existing OHIP premium, and where OHIP was funded by
      the employer health tax. At the same time, however, the language
      chosen must have been informed by the fact that at one time there had
      been an OHIP premium. In my view, reasonable parties in their
      position would have intended that, should some government
      initiative in the future require that a payment for OHIP insured
      services be required of individual employees, the Employer would
      be responsible to pay that on behalf of the individual employees,
      provided that it was materially and reasonably similar to the OHIP
      premium payable prior to 1989. If the parties intended that only the
      reinstatement of the previous OHIP premium in identical terms would
      trigger the clause, they could have expressed that in the language
      chosen, as did the parties in the two College Compensation and
      Appointments Council cases. Rather, they continued to use language
      which in general required payment of 100% of the "premiums" for OHIP.
      [Emphasis added]

This is exactly the argument that trade unions have been attempting to make for the
past year. It is irrelevant whether the payment is a “premium” or a “tax”. The key
issue should be the intention of the parties when the clause that requires the
employer to pay health premiums was negotiated as part of the collective agreement.
If the parties intended that the employer would pay government health levies, the
employer should pay the OHP, regardless of the mechanism that the government
uses to collect the premium.

While the majority of arbitrators have concluded that an employer is not required to
pay the OHP on behalf of its employees, this matter is by no means settled,
particularly given the number of decisions proceeding to judicial review.
Furthermore, as increasing numbers of collective agreements come up for
negotiation, this is also becoming a hot bargaining issue for the parties. It will be
some time before it is clear whether or not employers are responsible for paying the
OHP where the collective agreement contemplates employers paying the old OHIP
premiums. At this time the only determining factor appears to be which arbitrator is
chosen to interpret the collective agreement.

A chart which depicts the status of each OHIP decisions is available on our website at
www.watsonlabourlaw.com or contact our office to have a copy faxed or emailed to
you: contact_us@watsonlabourlaw.com. Note that many of them are proceeding to
judicial review and that this issue will likely not be conclusively determined for a
number of months.

Watson & Associates Labour Lawyers                                                   3
               WATSON REPORT                            –    FALL          2005

Privatization of liquor stores
                                                    Brewers Retail and the LCBO, both of which
                                                    are unionized, is staggering.

  In early 2005 the Provincial Government of
                                                    However,        the   provincial    Ontario
  Ontario formed a review panel to evaluate
                                                    government, deep in the midst of contract
  Ontario’s alcohol sales policies and
                                                    negotiations with LCBO employees and
  recommend changes to make it more
                                                    looking at a looming lengthy strike, stated
  efficient. In announcing the creation of the
                                                    that the government would not adopt any
  panel, Finance Minister Greg Sorbara
                                                    recommendations related to privatizing the
  emphasized that the panel was not formed
                                                    LCBO. In August 2005, LCBO employees
  with a view to privatizing the Liquor Control
                                                    ratified their new contract by a margin of
  Board of Ontario (LCBO). The panel was,
                                                    83%. UFCW Local 12R24, representing the
  however, given the mandate to consider
                                                    Beer Store employees, also recently ratified
  breaking the monopoly of Brewers’ Retail
                                                    their new contract. The new contracts
  and the LCBO to sell beer and wine in
                                                    contain protection against contracting out
  Ontario by creating more franchising
                                                    and from employees losing their job to
  “opportunities” to sell liquor or perhaps allow
                                                    agency/franchise stores.         The new
  the sale of liquor from corner stores. Critics
                                                    contracts should keep neo conservative
  described the government initiative as
                                                    attempts to privatize the Ontario liquor
  privatization by stealth or through the back
                                                    outlets at bay... at least for another few
  To no one’s great surprise, the Lacey
               released      in
                                           and      Lockout of CBC Employees
  contracting out of the LCBO on a regional
  basis. Brewers Retail and other private                   Continues
  stakeholders would be invited to include
                                                    Tired of hearing mediocre commentary and
  their stores in the auction process and/or be
                                                    music selections when you tune into CBC?
  licensed for a further 10 years.         The
                                                    Frustrated by a re-broadcast of Antiques
  possible fall out for employees of both
                                                    Roadshow on Newsworld while other news
                                                    stations are airing news about the latest
  hurricane to hit the United States? As of         members and the public on negotiations at
  August 16, 2005, over 5000 Canadian               www.cbcontheline.ca .
  Media Guild (CMG) members were locked
  out by their employer, the CBC. After over        CBC, on the other hand, refused to publicly
  a year at the bargaining table, CBC initiated     acknowledge that it had locked out
  the lock out when the Union did not accept        employees, calling it a “labour disruption”
  the Employer’s unilateral position that more      instead. It continued to play dirty tricks
  contracting out was necessary.                    during the strike such as airing illicitly
                                                    recorded coverage of the swearing in of the
  During the strike, public support and             Governor General (who refused to cross the
  employee morale remained high, largely in         CBC picket line).
  part of CMG’s inspiring PR campaign and
  the work of union members. CMG ran an             Negotiations have begun again and it
  excellent news website throughout the strike      appears that there is a settlement between
  at www.cbcunlocked.ca and updated                 the parties. Again, congratulations to the

  Watson & Associates Labour Lawyers                                                        4
CMG and its members on a well fought

Watson & Associates Labour Lawyers     5
        WATSON REPORT                                –    FALL           2005

                                 The Lighter Side of Labour Relations

   No Way Bill for Burmese Python

   A UPS Teamster driver got the surprise of his life when he found a Burmese python
   curled up amongst the parcels in his truck. At first he thought it was a stuffed animal or
   rubber snake, but realized it was alive when he picked up a small box in front of it and the
   snake moved. The driver contacted the local animal control office and the slithery
   stowaway was taken to a pet adoption centre. A UPS customer later claimed the 9 foot
   python, having ordered the snake from a Pennsylvania corporation. UPS is investigating
   the incident as snakes are not on the list of live animals it will ship.

   Thirsty Bear and the Beer Bandit: The Play
   A driver and his van containing 50,000 cans of Moosehead beer went missing while en
   route to Mexico from the east coast brewery. The van was recovered but most of the
   beer was missing. The driver, referring to himself as “The Beer Bandit” to friends, was
   quickly apprehended and sentenced to 19 months in jail. Most of the beer was not
   recovered: 5000 to 8000 cans were eventually discovered at a homemade trailer, and the
   police discovered 200 cans of Moosehead beer at a marijuana growing operation in New
   Brunswick. Several of the cans had been ripped open and police speculated that a
   thirsty bear was wandering through the forests in an inebriated state. The Beer Bandit’s
   story has now been turned into a play called Donde Es Mi Cerveza? which means
   Where's My Beer in Spanish.

   Laptops: cutting edge technology to blame for workplace injuries
   Transco drivers in England have finally been compensated for back injuries sustained as
   a result of using the laptops fitted into their vans. The laptops were installed to help
   service engineers locate gas mains and to log call outs. However, the computers were
   inconveniently fixed to the bottom of the passenger seat by a short wire security leash
   which meant the computers could only be used if resting on the passenger seat. Drivers
   had to twist and turn to use the computers which resulted in back pain. The employer,
   who refused to take action when the problem was brought to its attention, has now been
   made to compensate the employees for the laptop related injuries.

   Will work for divorce
   The state run oil corporations in China have laid off millions of employees in the past two
   decades. However, a new policy was just introduced by the Huaei Oilfied Co. that allows
   laid off employees to return to work with only one string: they must have a divorce
   certificate to qualify for re-employment. The motives for the pro-divorce policy are
   unclear. However, the policy has made divorce very popular, so much so that reportedly
   the standard greeting of “Have you eaten” has been changed to “Are you divorced yet?”

Watson & Associates Labour Lawyers                                                            6
          WATSON REPORT                             –    FALL           2005

       Walmart Update: The Bad and Good News
  The town of Jonquière, Quebec made           union activity.      Of course a positive
 labour history when the employees of Wal-     decision from the Quebec Labour
 Mart joined the United Food and               Relations Board does not mean that Wal-
 Commercial Workers Union, becoming the        Mart will change its anti union ways. It is
 first Wal-Mart store in North America to      more than likely that Wal-Mart will continue
 unionize in over a decade. However, the       to engage in its typical legal guerilla tactics
 victory celebrations were short lived. In     and appeal or otherwise attempt to legally
 February 2005, less than a week after the     frustrate the decision.
 Union applied for binding arbitration to
 impose a first contract, Wal-Mart             Outside of Quebec, UFCW continues to
 announced the closure of its Jonquière        organize Wal-Mart employees.         UFCW
 outlet, claiming that the three-year old      Local 1518 recently certified the union at a
 store was not making money. Wal-Mart’s        Wal-Mart Tire & Lube Express in
 message was clear: If you want to             Cranbrook.       B.C. labour officials are
 unionize, we will shut you down.              considering      applications  for   UFCW
                                               certification at two other Wal-Mart Tire &
 When Wal-Mart announced that is was           Lube Express outlets.         (Wal-Mart, of
 planning to close its Jonquière store, the    course, is challenging those applications.)
 Quebec Federation of Labour decided to
 focus its efforts on fighting the closure     For updates on UFCW’s fight to unionize
 through the labour tribunal. Unfortunately,   Canadian        Walmarts,          visit
 the labour movement suffered a set back       www.walmartworkerscamada.com.
 in its long battle to organize Wal-Mart
 employees in North America. On May 11,        UFCW is also actively targeting Walmarts
 the Vice Chair of the Quebec Labour           in the United States. For more information
 Board, Pierre Flageole, declined to order     please visit www.wakeupwalmart.com.
 Wal-Mart to reopen its outlet in Jonquière,   There is also a move to create a Wal-Mart
 Quebec.      On July 7, three Labour Board    Workers Association at 40 central Florida
 Commissioners rejected a union appeal of      stores.
 the decision.
                                                     An Arbitration Joke
 The Union has begun judicial review
 proceedings to challenge the Quebec                 Q. What is the difference between a
 Labour Relations Board’s decisions on this          good lawyer and a great lawyer?
 matter. The fight to keep the Jonquiere
 store open will continue in the Quebec
                                                     A. A good lawyer knows the law. A
 Superior Court.
                                                     great lawyer knows the arbitrator.
 But the Quebec Labour Relations Board
 decisions related to the Jonquiere store
 have not all been bad.       Following the
 closure of the Jonquière store, 79
 complaints for illegal dismissal were filed
 against the corporation. After hearing 4
 representative cases, the Board found that
 Wal-Mart had acted illegally and had
 dismissed the workers for engaging in

Watson & Associates Labour Lawyers                                                           7
          WATSON REPORT                              –        FALL       2005

                     Dirty Tricks at Lakeside
 In the Fall 2004 edition of The Watson         their jobs.
 Report, we congratulated UFCW Local
 401 on its successful attempt to certify the   The       Disputes        Inquiry      Board
 over 2000 workers at the Lakeside              recommended collective agreement was
 Packers plant in Brooks, Alberta.              not as bad as many anticipated. It
 Although the hope was that the first           contained the basics and in the spirit of
 contract would be negotiated before            compromise, the Union voted in favour of
 Christmas, the Employer, Tyson Foods,          accepting it.       Taking an outrageous
 appeared to be unwilling to negotiate a        position, Tyson Foods has indicated it is
 reasonable collective agreement.         For   rejecting the recommended deal which
 example, the Employer offered a raise of       means that the Lakeside UFCW Local is
 30 cents an hour with no money offered in      again in a strike position. Unless the
 the next three years, no benefit               government intervenes again, this will
 improvements and proposed to take away         likely be a fierce fight on the picket lines.
 one 15 minute coffee break. The Union,
 on the other hand, sought an immediate
 increase of wages by $1 an hour more
 and $3 per hour over the next three            Another meaning for "horsepower"
 years; better benefits; and two coffee
 breaks for employees.          The Union
 proposed     binding     arbitration,    the   The fuel allowance for Canada Post
 Employer refused.                              employees who deliver mail in rural
                                                Ontario has not been keeping up with
 The Union voted overwhelmingly for a           rising fuel costs. When Canada Post
 strike mandate and were ready to walk off      refused to increase her gas allowance
 the job at 5 a.m. on Wednesday July 20,        from a rate of 44 cents a kilometre (a
 2005. Hours before the strike was to take
                                                rate set in 2003), one Canada Post
 place, the Alberta government intervened
 by setting up a Disputes Inquiry Board,        employee decided to protest in an "old
 ostensibly to help management and the          fashioned" manner. The Smith Falls letter
 Union reach a deal.            The move        carrier began delivering mail on
 prevented any strike action for the next 60    something with a little less horsepower
 days, a period which the government            than her SUV: an actual horse. Who
 referred to as a “cooling offer period.”       knew that the Pony Express would return
 The Labour Relations Code only provides
                                                to North America?
 for a 20 day period.

 Was the fix in and the Alberta government
 blatantly siding with the Employer in this
 dispute? The “cooling off period” ended
 right around the time that the Labour
 Board could entertain a decertification
 vote. And during the interim cooling,
 Union supporters continued to worry that
 they may be fired as there was no
 collective agreement in place to protect

Watson & Associates Labour Lawyers                                                              8
        WATSON REPORT                             –    FALL          2005

                             Board Roundup
 The following is a short summary of some of the interesting decisions recently rendered by
 the Ontario Labour Relations Board

 Unfair labour practice: Terminations of employees tainted by anti union animus
 During the course of an organizing campaign, several day shift employees were terminated.
 The employer alleged that the terminations were business related and connected to
 outsourcing some of the employer’s activities. While the employer may have had bona fide
 reasons for restructuring its operations, its timing was suspect and the identity of the
 targeted employees suggested an anti-union animus. The Board granted a declaration that
 there had been an unfair labour practice and damages were awarded.

 DFR: Must Be Able to Show Damages
 In this complaint, the union no longer existed and therefore the union was not represented
 at the hearing. The Board had no
 reason to reject the applicant’s            Telus strike still on in BC and Alberta
 assertions that the union had
 acted arbitrarily when it entered        Thousands         of     members        of    the
 into minutes of settlement for a         Telecommunications Workers Union have
 number of grievances without             been on strike since July 2005 when Telus
 sufficient knowledge of the issues       imposed       a     contract    on     employees.
 or how the amounts would be              Negotiations for a new collective agreement
 distributed      to    employees.
                                          had been ongoing for the past five years.
 However, as the applicant was
 unable to show what, if any,
                                          Just as it has in negotiations, Telus continues
 damages he should be entitled to,        to act in an unfair and arbitrary manner.
 the Board did not award any              Telus unilaterally shut down an employee’s
 damages.                                 website, which was sympathetic to the union,
                                          claiming it had privacy concerns about some
 Employment            Standards:         of the content of the site. It has also begun to
 Remedy in pregnancy cases                use scabs and is planning to contract out
 should be reinstatement                  work to overseas call centres. Telus recently
 The Board again confirmed that           refused the Federal Labour Minister’s offer of
 where the employer violates the          a special mediator to help end the dispute and
 pregnancy provisions of the
                                          refuses to return to the bargaining table. With
 Employment Standards Act, the
 appropriate        remedy      is
                                          Telus’ unreasonable stance, the strike looks
 reinstatement.             Where         like it might stretch on indefinitely.
 reinstatement is not a viable
 option, the Board was able to            TWU asks that Telus customers cancel their
 award damages based on the               custom phone features. A number of unions
 value of the “loss of job” by            have offered support to the TWU and Watson
 examining      the     employee’s        & Associates joins them in hoping that the
 reduced salary in her new                strike will end soon and with a fair contract
 employment situation.                    between Telus and the TWU.

Watson & Associates Labour Lawyers                                                        9
          WATSON REPORT                                  –    FALL           2005

       Corporate Liability provisions could ensnare
                      trade unions
 Following the Westray Mine disaster in             employees, it appears that there is another
 1992, there was an uproar when the                 arrow in the arsenal of weapons that trade
 employers could not be held criminally             unions can use to ensure the safety of
 liable, although they apparently were aware        members. However, Bill C-45 is a double-
 of the safety violations that led to the           edged sword for trade unions. Given that
 collapse of the east coast mine. The NDP           trade unions fall under the definition of
 twice attempted to introduce legislation that      “organization” under the legislation, a trade
 would amend the Criminal Code to allow             union may also face criminal liability.
 prosecution of employers who negligently
 fail to protect the health an safety of            Although the original intent of the legislation
 employees, but neither Bill received the           was to allow corporations to be found liable
 Liberal government’s support.      Finally in      for gross health and safety infractions, trade
 2003, the federal government introduced            unions must attempt to protect themselves
 legislation to amend the Criminal Code to          as well in order to ensure that any criminal
 address      corporate   criminal     liability.   blame does not lie at the union’s door.
 However, unlike the early NDP private              Possible steps for trade unions to protect
 members’ bills that focused on facilitating        themselves could include:
 convictions of corporations for failure to         1. Providing training for members on the
 protect employees’ health and safety, the          implications Bill C-45 and health and safety
 Liberals’ Bill C-45 expanded the definition        regulations,    and     clarifying    reporting
 of “corporation” to include many groups            obligations for health and safety infractions.
 such as trade unions not originally intended       2. Ensuring that shop stewards and/or
 to be caught up in the expanded corporate          other union officials report any health and
 criminal liability.                                safety infractions brought to their attention
                                                    by a member, including during general
 Bill C-45 made a number of changes to the          membership meetings, to the employer in a
 Criminal Code in order to “pierce the              timely fashion.
 corporate veil” and allow corporations and         3.    Directing union health and safety
 other organizations to be charged with and         committee members to copy senior officials
 convicted of criminal offences.              The   of the corporation with minutes of the joint
 changes to the Criminal Code impose a              committee on health and safety, as well as
 legal duty on employers and those who              with any recommendations of the
 direct the work of others to take reasonable       committee.
 measures to protect employees and public           4. Carefully evaluating new health and
 safety. The expanded corporate liability           safety measures brought in by the
 applies    to     all    criminal      offences.   employer, specifically those aimed to
 Furthermore, there is now a greater                protect the corporation from liability under
 likelihood that where a manager fails to           the Criminal Code.
 take into account workplace safety, the            5. Introducing its own draft policies
 corporation will attract criminal liability.       regarding health and safety of members.

 On the face of the legislation, Bill C-45          It has been more than one year since Bill C-
 appears to benefit trade unions.          By       45 amended the Criminal Code. In over
 adding the potential of holding corporations       one year, there has only been one reported
 criminally liable for health and safety            charge under the Criminal Code and that
 infractions that may cause bodily harm to
                                                                                   Con’t on page 13

Watson & Associates Labour Lawyers                                                                10
       WATSON                 REPORT               –    FALL          2005

                     Labour Happenings Around the Country

 Canada’s Young Workers Smarter but Poorer
 The Canadian Labour Congress has just released a study which found that young people
 are better educated but not as well paid as their contemporaries 30 years ago. Men under
 the age of 24 earn 25% less than young men the same age did a generation ago (in real
 terms, adjusted for inflation.) The disparity is not as great for females who earn 20% below
 what young women were earning in 30 years ago. Furthermore, it appears that young
 workers of colour experience higher unemployment, longer unemployment, lower salaries,
 fewer promotions. Clearly there is a lot of work to be done to ensure that young workers
 are better treated. A copy of the study can be accessed at the CLC webpage.

 New Union for Voisey Bay Nickel Workers
 Workers at Inco's Voisey's Bay Nickel Company Limited in Labrador voted 72% in favour of
 joining the United Steelworkers of America. USWA represents Inco workers at a number
 of other locations including Sudbury, Port Colborne and Thompson. First contract
 negotiations will begin now, with the main issues being wages, benefits and pensions.
 Congratulations to USWA for organizing a new local.

 Publicly Operated Waste Collection in Winnipeg Trashed
 One vote made a huge difference for the livelihoods of a number of workers in Winnipeg.
 By a margin of one vote, Winnipeg City Council decided that all solid waste collection
 would be contracted out. CUPE Local 500, the affected union, had run a campaign against
 the proposed privatization with the slogan “Don’t Trash Us.” Union members are now
 meeting with management to discuss how and if members will be redeployed when solid
 waste collection is turned over to a private for profit corporation.

 Postal Workers fight to keep Quebec City plant open
 Postal workers have launched a campaign to stop the proposed closure of the mail sorting
 plant in Quebec City. Employees from the plant are distributing a petition, meeting with
 politicians and calling on unions across the country to get involved. The proposal would
 close the plant down within two years and all the mail would be shipped to Montreal for
 sorting. The Quebec City plant employs 300 people. If the Quebec City plant closed,
 some employees would be eligible for retirement and others would be transferred to other
 Canada Post facilities.

 Legislation to end mandatory retirement introduced in Ontario
 Following a lengthy consultation process with a number of stakeholders, the Ontario
 government introduced legislation to end mandatory retirement in June 2005. It is
 anticipated that the legislation will be passed in the fall once the legislature reconvenes.
 The legislation amends the Human Rights Code and other legislation that permits an
 employer to force an employee to retire because they have reached the age of 65. While
 some argue this is a necessary evolution of human rights jurisprudence, others have
 speculated that the end of mandatory retirement could lead to changes to government and
 private pension plans.

Watson & Associates Labour Lawyers                                                              11
        WATSON REPORT                                 –     FALL          2005

                                Labour Happenings Around the Country, con’t
 Court of Appeal support Kapuskasing Firefighters
 In previous issues of The Watson Report, we have commented on the Kapuskasing
 Firefighters decision in which Arbitrator Kaplan found that the town could not uniltarally
 contract out all the bargaining unit work. The arbitral decision was upheld on judicial
 review and recently the Court of Appeal reached the same conclusion, issuing a short
 decision upholding Arbitrator Kaplan’s decision. All the decisions are available from our
 office. Congratualtions to the Kapuskasing Fire Fighters Association on another win.

 Hershey Canada Inc. fined $50,000 for health and safety violation
 Hershey Canada Inc. was fined $50,000 in August 2005 for a violation of the Ontario
 Occupational Health and Safety Act that resulted in a worker losing part of his finger. An
 investigation by the Ministry of Labour determined that the hopper had not been stopped
 and locked out during clean up operations and as a result, the worker ended up having part
 of his finger severed by a moving auger. A Justice of the Peace imposed the heavy fine of
 $50,000, in addition to the 25% victim fine surcharge as required by the Provincial Offences
 Act. Note that there was no prosecution under the Criminal Code despite the introduction
 of provisions that allow prosecution under exactly these circumstances!

 Supreme Court Schmupreme Court: New Election Rules for the Public Service
 Just in time for the expected federal election, the Public Service Commission has
 introduced new federal guidelines restricting political activity by public employees employed
 by the Canadian government. The “guidance document” makes it clear that the rights that
 are enshrined in the Charter and a Supreme Court decision 14 years ago are not without
 limit. Political activities “must not impair or be perceived as impairing” the ability to perform
 duties in a politically impartial manner. Those wishing to become candidates must first
 seek approval of the commission and take a leave of absence, possibly as soon as the
 employee indicates it wishes to seek a nomination. The guidelines appear to be narrower
 than those set out in the Supreme Court decision which does cause some concern that the
 federal government is unnecessarily trying to muzzle its employees in the face of an
 important election.

 OPSSU successful in overtime battle
 In a recent decision regarding an overtime grievance between OPSEU and its staff union
 OPSSU, Arbitrator Randall ruled that OPSEU was required to pay the grievor overtime in a
 strike situation, even when prior approval was not sought from the supervisor who the
 grievor believed was harassing and demeaning her. OPSEU was blasted in the decision for
 its treatment of employees. A copy of this and other decisions in which Watson &
 Associates was counsel will soon be found on our website at www.watsonlabourlaw.com

 Big Raise for Regina Firefighters
 A recent interest arbitration decision awarded the Regina Professional Firefighters
 Association’s 270 members a 13.5% pay raise over the next three years. Firefighters will
 receive a pay raise of 3.5% on January 1 and of 1% on July 1 for the next few years. The
 total raise will be 13.5%. The arbitrator’s decision was based in part on the tenet that
 firefighter wages should be on par with police salaries. The decision keeps the Regina
 firefighters within 94.7% of what the Regina Police Service officers receive.

Watson & Associates Labour Lawyers                                                               12
         WATSON REPORT                                 –    FALL          2005

           Dress code policy barring facial jewelry
                found to be “unreasonable”
In previous editions of The Watson Report, we have discussed issues relating to dress
codes. Employers’ policies prohibiting beards and restricting the length of hair have been
found to be illegal, particularly where the reason for a beard or long hair had to do with an
individual’s religion. Dress codes prohibiting wearing jewelry in the workplace, however, have
usually been upheld.

In an interesting and recent decision from Alberta, an arbitrator upheld a grievance that the
food store company’s ban on facial jewelry was unreasonable and unenforceable. There are
six generally accepted criteria for an arbitrator to consider when determining if a workplace
rule is enforceable: The rule must be (1) consistent with the collective agreement; (2) not
unreasonable; (3) clear and unequivocal; (4) brought to employees’ attention before the
company acts on them; (5) if discharge is a consequence in breaching the rules, employees
must be forewarned of the fact; and (6) they must be consistently enforced by the company
from the time of their introduction. The Company took the position that employees with facial
piercings at the store would be a “turn off” for its customers. The Union argued that the facial
jewelry ban was unreasonable based on the above criteria, that the policy was confusing and
ambiguous and that the policy was unsupported by any legitimate business rationale.

It was this last point that became the focal point of the arbitration and turned the arbitration
into one of the most interesting “battles” of the sociological experts in recent reported arbitral
jurisprudence. The Employer introduced evidence from Ipsos-Reid, a commercial marketing
firm, who conducted a survey that found that 60% of 851 Albertans indicated that it was
inappropriate for cashiers to sport facial piercings while at work. The Union countered with its
own witness, a University of Alberta sociology professor, who criticized the methodology of

                                                                              Continued on Page 13

                                                    TELL US YOUR IDEAS!!!

                                           Something you want to see in the
                                           next newsletter? Is there an issue
                                           you want to see addressed? Or is
                                           there a lawyer joke you have been
                                           dying to tell us? Tell us your ideas.
                                           We want the Watson Report to serve
                                           our clients needs and address their
                                           concerns. And of course, it gives us a
                                           chance to tell a few jokes.

Watson & Associates Labour Lawyers                                                               13
           WATSON REPORT                            –    FALL          2005

                      Corporate Liability, con’t                         Dress Code, con’t

prosecution was dropped in favour of one           the IPSOS-Reid study and presented his
under the Occupational Health and Safety           own survey of 500 Edmonton residents that
Act. The legislation does not appear to be         concluded that many shoppers do not
particularly effective in holding either           notice the appearance of grocery store
employers or any other party liable for            employees.       While 39 shoppers had
egregious safety violations. However, that         changed their shopping behaviour because
does not mean that unions should not take          of employee appearance, it was because of
this legislation seriously and trade unions        “employee cleanliness and clothing”, not
should look for ways to use it to their            visible piercings.
advantage without exposing themselves to
criminal liability.                                Arbitrator Ponak considered all the
                                                   evidence, including the fact that repeatedly
The information in the above article was           removing and reinserting facial jewelry was
taken from a seminar prepared by Watson &          “time consuming, painful and can lead to
Associates for the Amalgamated Transit             swelling and infection” but he still found
Union. If there is a labour relations topic that   that “in balancing the rights of employees to
interests your organization, please contact        wear facial jewelry off duty and the right of
our office as we would be pleased to prepare
                                                   management to adopt policies that prevent
a seminar for your members.
                                                   a loss of business, sustaining the business
                                                   trumps employee off-duty grooming.”
Another arbitration joke…                          However, in the arbitrator’s view, the
                                                   Employer’s IPSOS-Reid survey evidence
Frustrated with another repetition of              failed to establish that the company’s policy
arguments he had heard many times                  of banning all visible piercings other than
before, the arbitrator pointed to his ear          earrings was necessary to avoid a loss of
                                                   business. The Union’s sociologist witness’
and said, "Counsel, you should be
                                                   evidence was persuasive, in particular his
aware that at this point, what you are
                                                   criticism of the IPSOS-Reid survey. Given
saying is just going in one ear and out            that there was no evidence that the store
the other."                                        would be at a disadvantage if it did not ban
                                                   all visible piercings, the policy was held to
"That goes without saying” replied the             be unreasonable.           It was also an
lawyer. “What is there to prevent it?"             infringement of the Letter of Understanding
                                                   between the parties that required the
                                                   Employer to treat all employees with
                                                   “dignity, respect and fairness appropriate in
                                                   the circumstances.”         The one caveat:
                                                   Arbitrator Ponak commented that this was
                                                   not a license for employees to wear
                                                   whatever kind of facial jewelry they saw fit.

                                                   Expert witnesses at arbitrations are not
                                                   uncommon, but expert pollsters or
                                                   sociology experts? This could be a new
                                                   arbitral new trend.        It certainly was
                                                   successful for the Union in this case.

  Watson & Associates Labour Lawyers                                                         14
       WATSON REPORT                                –    FALL          2005

                       Around the World In Labour Relations

 Australia: Union advocacy results in better maternity and paternity leave
 The Australian Industrial Relations Commission approved several family-friendly workplace
 rights, including up to two years of unpaid parental leave after the birth of a child and the
 right to request part-time work when parents return to work. The decision was a result of the
 Work and Family Test Case brought forward by Australian Council of Trade Unions.
 However, the decision of the Australian Industrial Relations Commission could be overturned
 by legislation being contemplated by the federal government which is planning a number of
 regressive workplace reforms.

 United States: New Occupational Hazard - “Popcorn Lung”
 Thought that microwave popcorn was a healthy snack? Think again. A worker at the Jasper
 Popcorn Co. has been awarded $3 million for lung damage sustained from exposure to a
 harmful chemical used to make butter flavouring. Another co-worker was awarded $15
 million. “Popcorn lung,” as the condition has been described, is no laughing matter. As a
 result of their exposure to the harmful chemical, a number of workers may require lung
 transplants. Makes you think twice about popping that corn...

 South Africa: Sexual Harassment Results in large fine
 A secretary fired after she spurned her boss’ sexual advances, which included kissing her on
 the neck and asking her to sit in his lap, was awarded the equivalent of two years’ wages
 despite the fact that she only worked for the company for three days. In another high profile
 case, a supervisor attempted to kiss his secretary, made inappropriate suggestions and tried
 to follow her into the washroom. The courts awarded the secretary R800,000 (approximately
 $150,000 CAD). These large fines demonstrate the seriousness with which sexual
 harassment is being treated by tribunals and courts and is meant as a strict deterrent to
 corporations that do not take sexual harassment in the workplace seriously.         Although
 prosecutions for sexual harassment have been rare in South Africa, it is expected that the
 numbers will increase once the proposed new National Economic Development and Labour
 Council's code of good practice on the handling of sexual harassment cases is implemented.

 Ghana: Labour Commission receives 200 complaints in 4 months
 Four months after the National Labour Commission was established in Ghana, the
 Commission has received over 200 complaints from individual workers, trade unions and
 employers. The Commission was formed after the Labour Act was enacted, an Act that
 incorporated a number of previous laws into one statute. The new labour law has five main
 principles: stability in labour relations, maintenance of human dignity in labour relations,
 creation of a flexible labour market, the need for equity and social protection, and
 consolidation and accessibility of the law.        The Deputy Chairman of the Commission
 reported that a number of the complaints have been settled, others are in mediation, and
 some are being scheduled for hearings. The Labour Commission is in the process of
 compiling a list of mediators and arbitrators to resolve complaints filed with the Commission.

Watson & Associates Labour Lawyers                                                           15
           WATSON REPORT                                –    FALL           2005

Around the World In Labour Relations, con’t

Japan: Attempt to Privatize Postal System Fails
The government’s bill to privatize Japan’s postal service failed by a margin of 125 to 108.
The privatization plan would have divided Japan Post into four categories - mail, counters,
savings, life insurance - and eventually have the entire service privatized by 2017. The
privatization of the public post system was opposed by trade unions as well as those who
believed that eliminating a universal postal service would negatively affect rural residents.
Following the defeat of the bill, the Japanese Prime Minister called for a general election
which will take place in September.

United States: Union members become Employers’ Consultants
A disturbing trend in the United States is the advent of labour relations consultants formed by
former union members who offer their services to employers anxious to fend off union
organizing drives.       The use of outside consultants by management companies during
organizing drives is quite common. Often consultants privately encourage tactics that are
illegal, including firing workers or threatening to close a plant if the workers join a union.
Reprehensible as it may seem, union activists are often in demand by employers as the
turncoats understand the tactics used by unions during labour actions.

Ireland: Workplace deaths figures likely higher than reported
Ireland’s largest trade union, the Services, Industrial, Professional and Technical Union, is
estimating that occupational fatalities could be 10 times higher than those reported. The Irish
Health and Safety Authority’s annual report for 2004 showed that 50 people died as a result
of workplace accidents. However, as those figures do not reflect the number of illnesses or
injuries which occur in the workplace, SIPTU believes those figures are inaccurate. New
Zealand, a country with a similar workforce to that of Ireland, recently released a report that
more than 80% of work related deaths are not documented, reported or investigated. SIPTU
believes that figures for occupational fatalities should include those killed driving to work, as
well as deaths associated with cancers, heart problems and respiratory diseases that are
arguably work related.

India: Calcutta to ban rickshaws
The Chief Minister of West Bengal has announced that rickshaws will be banned in Calcutta
in the next four or five months. The hand pulled rickshaws, long a symbol of Calcutta, will be
taken off the roads on “humanitarian grounds” as the work for the rickshaw operators was
deemed to be “inhumane.” It is estimated that there are approximately 18,000 rickshaw
operators in Calcutta and they are a very popular mode of transportation, particularly in
monsoon season when cars and taxis have problems navigating the flooded streets. Some
trade unions are demanding adequate compensation and an alternate livelihood for all the
pullers before their licences are cancelled and the mode of transport banned. Mohammad
Aslam of the All Bengal Rickshaw Pullers Union, the leading union of rickshaw pullers in the
city, said it was not opposed to the move as long as jobs were not lost.

  Watson & Associates Labour Lawyers                                                                16
             WATSON REPORT                               –      FALL             2005

       Marketing 101 for
                                                        Watson & Associates
            Unions                                   Meeting Your Educational Needs
Most people reading this newsletter will agree
on one thing: unions are an integral part of
society. But despite the fact that unions are a          National Conferences
positive addition to almost any workplace,               In house Workshops
myths continue to exist about what a union               Informational Bulletins
does for its members.

For years, Watson & Associates has                       Watson & Associates is
advocated that unions use as many publicity
                                                         available to meet all of your
avenues as possible to advertise the benefits
of unions. The need to get the public on                 educational needs. If there is
your side in a potential strike situation makes          a labour relations topic that
advertising the union position all the more              interests your organization,
important. The public appears much more                  please contact our office and
likely to blame the “greedy” union than the              we will work with you to create
employer who failed to bargain in good faith.            a custom program for your
                                                         conference or prepare the
ATU 113 had very effective advertising of its            educational    materials    you
position during the near strike situation earlier        require.
this spring. Over and above its excellent use
of print ads aimed at transit users, ATU 113
also ran an interactive website whose traffic
was no doubt increased by ATU 113’s savvy
decision to lottery off one free metropass
each day for those who wished to enter the
contest by sending a letter of support for
increased transit funding to the government.
President Kinnear’s accessibility to the media      The Watson Report is a publication of Watson
                                                    & Associates, Labour Lawyers. The Watson
(which continued after the strike) also helped
                                                    Report is prepared for general information
keep ATU 113 looking good. During its
                                                    purposes only and is intended to provide comments
ongoing lock out right now, CMG has also            for our clients, friends and associates on current and
been most effective in keeping the public on        emerging developments in labour law. The contents
its side by creating podcasts, hosting a            of the Watson Report should not be construed
number of interactive websites, effective           as legal advice or opinion. We invite you to contact
public picketing and lobbying, as well as           us if you have specific questions regarding the
coordinating an e-mail and postcard assault         articles or any other questions of a legal nature.
on CBC Board Members and the Prime                  Additional copies of the Watson Report may
Minister.     All these actions helped keep         be obtained by contacting the firm.
public support clearly on CMG’s side.
                                                                                   Watson & Associates
                                                                            Suite 370, 170 Attwell Drive
Keeping the public on your side is an
                                                                                      Etobicoke, Ontario
effective tool when putting pressure on the                                                   M9W 5Z5
employer. Brush up on your media skills and                                        TEL: (416) 253-1967
make sure you cover every arena when trying                                        FAX: (416) 253-7660
to get your point out to the public.
  Watson & Associates Labour Lawyers                                                                         17

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