Industrial Relations in Canada – HRM Now! by Top Hat

Untying the Knots of Labour Disputes

June 23, 2020 by esoostar

At the beginning of June 2020, the ongoing labour dispute between Saskatchewan’s Co-op Refinery Complex (CRC) and the union represented by Unifor 594 seemed destined to remain unresolved. The employer locked out the members of the bargaining unit on December 5, 2019, after the union voted to go on strike. The next six months resulted in a work shutdown, along with escalating and increasingly hostile labour relations tactics enacted by both sides as noted in this news article, posted on June 1, 2020. Almost three weeks after that, the stalemate appeared to be over with the announcement of a tentative deal being reached between the parties. How is it that this kind of resolution is possible in the midst of what seems to be an entrenched and especially hostile labour relations dispute?

The mechanism for resolution may be attributed to the use of government-appointed mediators, as mentioned in both the aforementioned news article and in this CBC news clip. While the mentions are brief, the impact of mediation in the form of neutral third-party intervention is profound. When parties are stuck in a labour dispute, they are tied up in a series of ‘nots,’ both figuratively and literally. They are not moving, not resolving, and not able to speak with each other in any way that is resolution focused. The longer the dispute continues, the more rigid both parties become as they tighten their hold on their respective immovable positions.

It is the role of the mediator to try to assist the parties in finding a way to become unstuck and loosen their hold on their respective ‘nots.’ The mediator, as a third-party neutral, often assists by creating an objective opening that enables the parties who are stuck to let go and try to approach some form of agreement. During the process of mediation, the disputing parties are still doing the work to reach a deal. The mediator simply assists the process in several ways. They may shepherd messages from room to room. They may caucus with party representatives to ensure that messages are delivered, heard, and listened to, without escalation and devolving into personal attacks. When emotions do run high, a successful mediator will know how to de-escalate and allow emotions to be expressed without inflicting residual harm onto the whole process.

While mediators are appointed by the applicable government as conflict resolution resources, they are perceived by both sides (labour and management) as being neutral. This YouTube clip, prepared by UFCW Local 401, provides a brief overview of the role and benefits of mediation approaches during the collective bargaining process.

Coming out of this particular labour dispute between the CRC and Unifor 594 will not be easy. The parties still have to ratify and accept the tentative agreement. Once that is completed, the next steps will require both workers and management to release themselves from several negative ‘nots.’ All parties will have to adjust from not being at work to being at work; from not trusting each other to trusting each other again; from not staying entrenched in past bitterness to being open to honest dialogue focused on resolutions for the future. Most importantly, the relationships that have been frayed through hostile actions against one another will need to be repaired with time and patience.

Discussion Questions:

If you were the mediator for the CRC and Unifor 594 labour dispute, how would you approach each party to look for possible solutions?
Each province has designated and mandatory approaches for dispute resolution steps during the collective bargaining process. Based on information you can gather from government websites, outline the steps to be followed in your province.
Do you agree or disagree that mediation should be a mandatory step for any parties locked in a labour dispute? Explain your rationale.

How Some Companies Stay Union Free

May 21, 2020 by rmcfadden

The goal of not becoming unionized in an organization is an understandable one. From the perspective of an HR professional, there is flexibility in a non-union work environment; however, being a specialist in HR and LR for over thirty years has led me to the conclusion that management gets the union it deserves. Applying some basic HR practices and programs can be beneficial in reducing the risk of unionization, but it does not guarantee it.

Hebdon Brown, in his book Industrial Relations in Canada, outlines four management responses to a possible unionization drive:

Union Acceptance
Union Resistance
Union Removal
Union Substitution

Most companies will respond in one of the four ways listed above. I am going to focus on strategy number three, Union Removal.

Many of you have heard of the concept of Moore’s Law of Technology, which states that the speed and capability of computers can be expected to double every two years. We have all seen this in action as we made advancements from the large personal computer to the compact processing power of an Apple Watch. These advancements would not have been possible without the concept of Moore’s Law of Technology.

I am going to suggest a new law, with respect to unionization, called, “Rick’s Law of Union Avoidance.” The Law of Union Avoidance is not scientific; in fact, it is very antidotal as the data only has supporting research of n = 2. Nevertheless, his Law of Union Avoidance is the inverse of Moore’s Law of Technology, and shows that as the gig economy increases, the speed of union avoidance will double. My supporting research is as follows:

A Walmart Store was unionized in Jonquière, Quebec in 2004; six months later, the Walmart head office decided to close its operations and shutter the new store.
When Foodora (an app-based food delivery company) was unionized in 2020 in Ontario, their head office decided to shutter its operations after only three months.

As you can see, it took Walmart six months from union certification to close its store and Foodora only three months to close its business after union certification. The speed of a company’s closing down after unionization is speeding up, thus Rick’s Law of Union Avoidance.

Governments, and how they design and enforce labour laws, have a dramatic impact on overall union density rates in the workforce. This can be illustrated easily if we compare unionization rates in Canada and the United States. Canada, which has more positive union certification laws than the US, has a unionization rate of approximately 30% whereas the unionization rates in the US are approximately 10%. Essentially, what companies can and cannot do with respect to accepting or rejecting unions is very jurisdictionally dependent.

Discussion Questions:

1. Research the union certification process in Quebec and compare it to two other Canadian provinces. Create a chart that shows the similarities and differences in the union certification process for all three provinces.

2. Imagine you are an HR employee of an organization that wants to open a new manufacturing plant in Canada. Prepare a presentation that will explain to your VP of HR which provinces would be most susceptible to unionization.

3. Compare and contrast the American concept of a “Right to Work State” versus the union certification process in your local jurisdiction.

Let’s Make a Deal

April 15, 2020 by esoostar

In the midst of all of the reporting on the pandemic crisis, there was some good news from the labour relations front. In Ontario, three of the four unions representing teachers announced that they had reached tentative collective bargaining agreements with the province.

As reported by Global News, both the Elementary Teachers Federation of Ontario (ETFO) and the Association des enseignantes et des enseignants franco-ontariens (AEFO) were able to negotiate revised working conditions. The Ontario English Catholic Teachers’ Association (OECTA), representing its elementary and secondary school teachers, was able to reach a tentative agreement as noted in this news posting.

From a process perspective, once a tentative agreement is reached between the representatives of all parties, the details of the agreement must be voted on by their respective memberships in order for it to be ratified. Ratification means that the agreement is final, and the terms of the new collective agreement are in place for each of the unions and their employer. The OECTA membership announced the successful ratification of the revised terms as noted in this article. The ETFO and AEFO agreements are still pending.

Does this mean that the collective bargaining process is over?

Not yet.

In Ontario, public education for elementary and secondary schools are governed by numerous pieces of legislation. These include the Labour Relations Act, the Education Act, and the School Boards Collective Bargaining Act, 2014. Needless to say, teaching is a highly prescriptive and heavily regulated profession resulting in an occasionally complicated approach to labour relations.

Prior to the implementation of the School Boards Collective Bargaining Act, 2014, individual school boards would negotiate collective agreements with their local bargaining units, representing the teachers within their jurisdiction. As each agreement was reached, there was a tweak, or a better term negotiated, that caused a laddering effect from board to board. This resulted in inconsistent terms within agreements based on local or regional resources.

With the implementation of the School Boards Collective Bargaining Act, 2014, common items for all school boards pertaining to wages and working conditions are negotiated at the provincial level and implemented locally once ratified. As noted in the news articles, each school board will continue to negotiate with its local bargaining unit to address any outstanding issues that pertain to the local community.

At the beginning of April 2020, the Ontario Secondary School Teachers Federation (OSSTF) and the province renewed their talks at the bargaining table with a changed approach. The bargaining process between these two parties was particularly hostile and aggressive, resulting in limited progress towards any agreement. As noted in this news article, what forced a change between the two parties was the impact of the pandemic crisis.

With the province abandoning its use of flaming rhetoric, the hostile environment on both sides appears to be diminished. Presently, there appears to be a more open space that will allow the parties to focus on the issues that are important, using a calm and reasonable approach, in order to achieve a mutually satisfactory settlement.

No matter if it is local or provincial, the continued need to listen in any bargaining process is critical as a means to reach a peaceful settlement in these truly turbulent times.

Discussion Questions:

Browse through different websites for teacher unions in Canada. What information is posted about the collective bargaining process and the union’s role? What information is available that identifies issues for local bargaining?
If you were representing the province at the bargaining table with the teacher unions, which approach would work best for you? Aggressive or conciliatory? Explain your rationale.

What Happens Next?

March 10, 2020 by esoostar

In September 2018, an arbitration decision determined that National Grocers Co. Ltd. (owned by Loblaws Inc.) had to pay overtime to its truck drivers who worked in excess of 44 hours per week, in accordance with Ontario’s Employment Standards Act (ESA). This decision came as the resolution of a grievance that was filed in 2014 by one of the drivers, Trevor Enos, who was represented by and a member of the union UFCW 1006A.

At the end of a four-year hearing, the union was able to make the winning argument that its membership was not excluded from the legislative requirements of the ESA. The employer (National Grocers Co. Ltd/Loblaws Inc.) argued, unsuccessfully, that the truck drivers were not bound by the overtime provisions of the ESA. They took the stance that the work done by the workers would fall under a different category and should be compensated under the jurisdiction of highway transport drivers. The arbitrator, Gordon F. Luborsky, sided with the union, and this meant that the employer would have to pay the overtime as ordered.

By September 2019, however, as identified in this CBC report, the overtime had not been paid out. Instead of settling the outstanding compensatory debt, Loblaws Inc. filed for a judicial review of the decision with the Ontario Divisional Court. While the report does not provide an explanation for the employer’s actions, the overtime payments owed to the employees, if dated back to 2014, would be significant. Loblaws Inc. has claimed to have set aside the funds it may need to pay the employees out.

It’s possible this case may not be about the money though.

While the monetary (overtime pay) issues seem to be the priority, this case provides us with some insights into both the legislative and procedural matters that come with administering a collective agreement.

As noted in the CBC article, employers cannot abdicate out of the law. If a collective agreement is ‘silent’ on a particular item, such as overtime, then the minimum standards of the ESA would, typically, apply. The question that appears to arise from this case is whether or not the ESA is the correct, applicable legislation. It makes sense that the employer would file for judicial review if the employer believes that the arbitrator erred in his decision about which piece of legislation does and should apply.

In the meantime, union representatives will continue to file grievances, as the Teamsters have done in Ottawa, based on similar circumstances, and the employers will continue to not pay. Until this matter is resolved by the penultimate, or even ultimate, third party, it seems that both sides to this dispute will continue as they have to date.

Discussion Questions:

As the head of HR for Loblaws Inc., what steps will you put into place to prevent this from happening in the future?
As the chief negotiator for UFCW, what language will you want to use to negotiate into the collective agreement at the next round of collective bargaining?
As a member of the bargaining unit in this case, what do you think would be a ‘fair’ result for you?

Independent versus Dependent

March 10, 2020 by rmcfadden

When HR professionals see the words “independent versus dependent,” it may give many of them vague flashbacks to a psychology or statistics course that they took, but all HR professionals should brush up on these terms, because they are vitally important in the new world of gig employment.

Let’s refresh our memory banks on what an independent versus dependent contractor is in the HR world. According to the Ontario Ministry of Labour (MOL), an “independent contractor” is defined as the following:

“An independent contractor is someone who is in business for themselves. An individual may be considered an independent contractor, and not covered by the [Employment Standards Act], when at least some of the following applies:

the business can end the individual’s contract for services, but cannot discipline the individual
the individual:
- has the opportunity to make a profit and has a risk of losing money from the work
- determines how, when or where the work is performed
- decides whether to subcontract some of the work”

It is important that HR professionals know the status of individuals doing work or providing services for their organization. They need to determine if the employees are independent or dependent contractors, as each category has significant laws and liabilities that pertain to them.

According to the Ontario Labour Relations Act, 1995 (LRA), a “dependent contractor” is defined as:

“A person who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor.”

The key wording to note from the definition above is “more closely resembling the relationship of an employee.” It is that wording that makes all the difference and places legal liabilities on the employers to the employees, such as ensuring minimum wage, vacation pay, and safety.

There was a recent ruling by the Ontario Labour Relations Board (OLRB) that Foodora Workers were to be considered dependent contractors and not independent contractors.

This was a case with a ruling that was precedent setting, similar to the one in California, where Uber drivers were to be considered employees and not independent contractors.

This new OLRB ruling allows Foodora workers the right to unionize, and if the union is successful in organizing Foodora workers, it may drastically change employees’ rights and benefits, not only for Foodora workers but all gig economy workers in Canada.

All HR professionals should brush up on the legal definitions of “employee,” “independent contractor,” and “dependent contractor” in their jurisdiction, and conduct an audit to see if there could be potential liabilities in the near future for their organization.

Discussion Questions:

1. Research the Labour Relations laws in your jurisdiction. Identify the definitions of “employee,” “independent contractor,” and “dependent contractor.” Prepare a three-minute presentation, which highlights the differences.

2. Imagine you have just been hired by Uber to review the latest OLRB ruling on Foodora workers. What recommendations would you make to the senior leadership HR team at Uber to help them reduce their legal HR liabilities?