The Legal Environment

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					The Legal Environment
              Learning Objectives


   Discuss the basic elements of the Canadian model
    of union recognition and collective bargaining;
   Discuss collective agreement administration;
   Discuss the role of the Charter in industrial relations;
   Discuss the impact of international law on labour
    relations policy; and
   Discuss how employment law affects employee
    rights and conditions
Understanding the Regulatory Framework

 Wagnar   Act: Named after the
 bill’s sponsor, Senator Robert F.
 Wagnar of New York, and more
 formally known as the National
 Labour Relations Act.
        Understanding the Regulatory
                Framework

   Prior to the Wagnar Act, unions were seldom
    recognized without violent power struggles between
    management and labour.
   The state tried to contain order with the IDIA
    (Industrial Dispute Investigations Act) of 1907.
   Scientific     Management        (Frederick      Taylor)
    influences were felt through the application of
    engineering principles to define specific tasks in the
    production process removing autonomy of skilled
    workers.
      Understanding the Regulatory
              Framework



   P.C. 1003: The Canadian government
    imported the Wagnar Act model in
    1944; under the War Measures Act, it
    was introduced by the Privy Council as
    PC 1003.
   Understanding the Regulatory
           Framework



 The  Snider Case: A landmark
 court case in 1925 that determined
 that labour matters fell under the
 purview of the provinces under the
 British North America Act.
    Union Recognition under the Wagner
                  Model


   To deal with conflict, the Wagnar Act provided the following:
     – Recognition strikes and lockouts were declared illegal;
     – As a substitute for industrial conflict over union recognition,
       labour boards were established to provide a process where
       employees could obtain union recognition by a free
       expression of support;
     – The union that obtained recognition was granted exclusive
       jurisdiction to represent all employees in a given bargaining
       unit. (exclusivity principle)
                  Labour Boards

   Neutral LRB’s serve a vital function in the North
    American model of industrial relations.
   Purpose is to provide an alternative to the courts that
    is faster, cheaper and has greater expertise in L.R.
    matters.
   Structure is tripartite (three stakeholders:
    management, labour and government).
   May hear certification/decertification cases, unfair
    labour practices, declarations of illegal strikes or
    lockouts.
            Recognition Process

   Two important elements of the recognition
    process require explanation: the bargaining
    unit and unfair labour practices.
   Bargaining Unit: the group of employees in
    an organization that are eligible to be
    represented by a union.
   Unfair Labour Practice:             an alleged
    violation of the provincial labour relations act.
            Recognition Process

   Management employees are excluded from union
    representation (those who have supervisory
    responsibility to hire, fire or discipline employees).
   Community of Interests must exist to form a
    bargaining unit amongst employees.
   Employer structure must be considered to ensure it
    is appropriate for collective bargaining.
   Duty of Fair Representation: the union must
    represent all employees equally and in a non-
    discriminatory manner.
           Collective Bargaining

   Labour laws require all parties to bargain in good
    faith and make a serious attempt to reach a
    settlement or collective agreement.
   Voluntarism: collective bargaining is a private
    matter between the parties and that government
    intervention should be kept to a minimum.
   Canadian laws require greater government
    intervention such as conciliation, mediation and
    arbitration.
          Collective Bargaining

   Mediation: a dispute-resolution process
    where a neutral third party acts as a
    facilitator.
   Arbitration: a process whereby a neutral
    third party makes a final binding
    determination on all outstanding issues in
    dispute.
       Expanded Government Role in
           Collective Bargaining

   Industrial Inquiry Commission
   Last-Offer Vote
   First Contract Arbitration
   Replacement Worker Laws
    Collective Agreement Administration


   The law in Canada dealing with collective agreement
    administration differs significantly from the U.S.
   In Canada, all laws substitute arbitration for the right
    to strike during the contract term.
   Under Canadian law, both the collective agreement
    and the law give arbitrators the jurisdiction to resolve
    disputes.
              Role of the Charter


   The laws set out in the charter are subject to:
    –   Reasonable limits prescribed by law as can be
        demonstrably justified in a free and democratic
        society;
    –   Governments can invoke the notwithstanding
        clause
    Review of Supreme Court Decisions


   Right to strike
    –   For organized labour in Canada, the early trilogy
        has resulted in some negative views about the
        Charter’s ability to protect workers’ right to
        freedom of association.
    Review of Supreme Court Decisions

   Union Dues:
    –   Lavigne decision outlined teachers who objected
        to their union dues going to political causes they
        did not support.
    –   U.S. courts upheld this ordering the union to
        rebate this to the teachers.
    –   The Canadian courts upheld the restriction on this
        freedom of association by viewing unionism that
        includes legitimate social and political goals that
        go beyond collective bargaining.
    Review of Supreme Court Decisions

   Picketing:
    The court has decided that secondary picketing is part of
      freedom of expression from the Pepsi-Cola case.
   Union Recognition:
    –   In 1994, trade union and collective bargaining rights were
        extended to agricultural workers.
   Political Activity:
    –   In 1991, the Supreme Court upheld a challenge to
        restrictions on the political activities of civil servants.
    New Direction for the Supreme Court


   In 2007, the court declared collective
    bargaining a constitutional right under the
    freedom of association guarantee.
           Employment Conditions

   Employment Standards & Employee Rights:
    –   Hours of work
    –   Overtime
    –   Scheduling of Hours
    –   Coffee and Meal Breaks
    –   Exclusions
    –   Human Rights
    –   Health & Safety
    –   Pay & Employment Equity
            Learning Outcomes

After reading this chapter, you should be able to:
 Discuss the basic elements of the Canadian model
   of union recognition and collective bargaining;
 Discuss collective agreement administration;
 Discuss the role of the Charter in industrial relations;
 Discuss the impact of international law on labour
   relations policy; and
 Discuss how employment law affects employee
   rights and conditions.
Questions

				
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posted:10/16/2011
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