04: The Legal Environment – HRM Now! by Top Hat

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?

The General Labour Strike Lives On

January 23, 2020 by rmcfadden

During a recent lecture, a student asked, “Come on, why do we have to learn about the 1919 Winnipeg General Strike? That was over 100 years ago. There was no income tax and only a few people even had indoor plumbing.”

Society, politics, and the economy have changed drastically in 100 years, but the tools for managing the relationship between capital and labour have not.

The withdrawal of labour, more commonly known as the “strike,” is still the only tool workers have to assert collective power to counterbalance the power of the employer. It may not be as accepted today as it once was, but it is still as effective. Let’s review some of the recent world news headlines:

The strike is becoming the most utilized tool in the union movement arsenal globally as well, which is demonstrated by what is happening in France. The largest general labour strike in decades for France is currently taking place, and have spurred on the following events:

Over 800,000 workers followed their union leaders and went out on strike.
Schools were shut down.
France’s main energy utility had to cut their power generation by 10%.
Transit systems had to be severely restricted.

The general labour strike is the largest tool unions have to demonstrate their collective voice. It was used 100 years ago, it is being used now, and it will probably continue to be used in another 100 years if history repeats itself, as it usually does.

This is why knowing about the 1919 Winnipeg General Strike is still relevant, and important to understand labour relations in today’s context.

Discussion Question:

Research the reasons behind the Ontario teachers’ job actions, and France’s general labour strike. Create an executive summary of the causes of the job actions, outlining the similarities and differences between the two labour disputes.

Labour Strife at Amazon Canada

November 4, 2019 by esoostar

Amazon Canada, according to its website, is the largest online retailer in the country. Customers can shop for ‘millions of items’ that are delivered to them within days of purchase. It is an industry power house that continues to dominate the retail landscape. Sales have increased at record rates for Canadian businesses shipping through Amazon over the past fiscal year.

Click here to read about Amazon Canada’s record sales.

Amazon’s mission statement is “to be Earth’s most customer-centric company”. In light of this statement and given the evidence of record growth, it seems clear that the company is thriving in the achievement of that mission.

All is not so rosy, however, on the employee and labour relations side of Amazon Canada’s growth ledger.

Since 2017, Amazon Canada has been facing allegations of numerous labour-related complaints. The United Food and Commercial Workers Union Canada (UFCW Canada) has filed a complaint with the Labour Relations Board of Ontario, alleging that Amazon Canada has interfered with the legal right of employees to certify and become members of a union. UFCW Canada has claimed unfair labour practices on the part of Amazon Canada, including anti-union messaging, closing of branches and termination of employees who organized or participated in union drives in specific locations.

Click here to read about the labour complaints against Amazon Canada.

Furthermore, there are allegations that organizational leaders held ‘secret meetings’ in 2017 that focused on anti-union messages and practices.

Click here to read the allegations about ‘secret meetings’ with Amazon Canada delivery companies.

As noted in both articles, these allegations of unfair labour practices are now part of the legal proceedings underway with the Ontario Labour Relations Board (OLRB). If indeed the allegations are proven to be true, the OLRB may be able to impose numerous remedies which may include the reinstatement of the terminated employees and, possibly, certification as a result of management interference in a legitimate process based on the freedom and the right to unionize. If, on the other hand, the allegations are not upheld, it will be interesting to see if the union will continue in its long-term efforts to unionize Amazon Canada workers and their affiliates.

In the meantime, there is no doubt that Amazon Canada will continue in its efforts to dominate on-line shopping and delivery around the world.

Discussion Questions:

Identify the legislation in Ontario that gives employees the right to certify?
What are the potential risks to Amazon in their stance against certification?
How does a non-union environment benefit Amazon and its workers?
Does the alleged anti-union stance at Amazon Canada have any impact on your on-line purchasing and shopping patterns? Explain your rationale.

Flipping Out Over ‘Contract Flipping’

March 20, 2019 by esoostar

Contract flipping is not a widely publicized or known strategy in the employee and labour relations environment.

It is, nevertheless, a staffing scheme that exists and is used with more frequency than publicity.

Contract flipping is the practice of terminating existing unionized employees under one contract and then hiring the same employees for lesser wages and benefits under a new contract. This can be done if the business is sold from one entity to another and/or if there are no successor rights within the existing collective agreement.

While this is not an illegal or illegitimate action on the part of the employer, it is a practice that has little benefit for existing employees. When this happens, the economic impact on individuals can be devastating. On the employer side, however, contract flipping allows for significant savings and labour-related cost reductions.

In British Columbia, contract flipping has become an issue for resolution within the legislative framework. The current government in British Columbia has introduced legislation to limit the practice of contract flipping.

The first approach by the government of British Columbia was targeted in the public sector for seniors’ homes and health care facilities with the introduction of Bill 94.

Click here to read about the proposed changes to contract flipping through Bill 94.

The impact of the proposed legislation has moved into the private sector as well, as noted in a recent article about the impact of contract flipping on janitorial workers employed by BC Hydro.

Click here to read the article.

These articles provide us with the example of how the government becomes a key actor in changing the legislative environment. In this case, the actions of the provincial government in British Columbia come from the premise of social justice when dealing with the matter of contract flipping and its impact on its citizenry.

As of the timing of this post, the current status of Bill 94 is unclear. What is clear, in this case, is the need and the resulting actions of government intervention that are required in order to institute a change in public policy.

Discussion Questions:

Is there a benefit to contract flipping for employees? Explain your rationale.
What are the potential risks to employers who use contract flipping as part of their staffing protocols?
As the HR professional for Alpine Building Maintenance, what advice will you give to the company’s decision makers about the timing of hiring former BC Hydro janitorial workers?
In your opinion, why does the British Columbia government want to change the practice of contract flipping in the health-care (public services) sector?