With Parliament officially re-opened following the federal election, everyone is watching to see whether the many campaign promises made by the incoming Government will be kept. One area that was the subject of more than its share of pledges was labour legislation. After nearly a decade in power, the Conservatives left behind a raft of anti-union laws that the incoming Liberals have vowed to clean up. Based on open letters and other public statements issued by the Liberals before and during the campaign, labour lawyers and workers’ advocates expect to see the following key pieces of legislation either reformed or repealed by the incoming Government:

Bill C-377

• What it does: this legislation imposed onerous financial disclosure and reporting obligations on all unions in Canada, well beyond those required of charities or non-profits.
• Campaign promise: As an MP, Justin Trudeau opposed this Bill, going so far as to write to the Senate urging it to reject it. (Notably, the Senate did successfully defeat the legislation once, requiring the Government to ignore the rules of the Senate to finally get it passed.) The Liberals have vowed to repeal this legislation.

Bill C-525

• What it does: this legislation changed the rules for certification of federal public and private sector unions, making it more difficult for workers to certify less difficult to decertify. Rather than allowing labour boards to determine that a union enjoyed the support of the bargaining unit based on membership cards, Bill C-525 required a secret ballot vote, while failing to provide the protections necessary to ensure employers could not apply improper pressure on their workers in the lead up to the vote.
• Campaign promise: Trudeau has promised that the Liberals would repeal this legislation.

Bill C-4

• What it does: Among the many laws amended by this omnibus bill, the Public Service Labour Relations Act was amended to give the Government unilateral authority over essential services: this means the government can prohibit employees from participating in a strike on the basis that they perform essential duties, a determination typically made by an independent labour board. This law closely resembled legislation that the Supreme Court of Canada had struck down earlier this year on the basis that it violated the constitutional right to strike. Bill C-4 also amended the definition of danger in the Canada Labour Code, making it more difficult for workers to refuse to perform dangerous work.
• Campaign promise: In an open letter during the campaign, Trudeau stated that Bill C-4 “stacked the deck against workers” and promised to consult with public sector partners and “revisit” this legislation.

Bill C-59

• What it does: Bill C-59 gave the Government the unilateral authority to extinguish employee sick leave banks from collective agreements and replace them with a short-term disability program. These powers allowed the Government to effectively ignore the collective bargaining process and ensure that it succeeded in securing its primary objective in this round of bargaining. The Conservative Government went as far as to preemptively “book” $900 million in savings in the 2015-2016 fiscal year on account of this change, demonstrating its contempt for the collective bargaining process.
• Campaign promise: The Liberals have publicly opposed implementing a new sick leave regime through legislation, and have expressed their commitment to bargaining with the unions in good faith.

Workers and unions will be watching to see whether the Liberal Government follows through on these campaign promises, and to see what form the more abstract commitments will take. For example, will “revisiting” Bill C-4 mean simply restoring the former essential services regime, or will the Liberals develop a new regime in consultation with workers’ representatives?

Beyond formal legislation, the Government has also promised a more positive approach to labour relations generally. This raises its own host of questions, including:

• Will the new Government depart from the Conservatives’ eagerness to interfere in labour relations through back-to-work legislation:
• Will the Liberals take steps to establish a proactive pay equity regime in line with the 2004 recommendations of the federal Pay Equity Task Force?
• Will the Government protect the right of public service employees to do their work free from political interference?

It will take years to fully assess the Government’s ability to restore trust and respect to federal labour relations. In the meantime, workers will look for early signs that the Government will follow through on the clear commitments it made in its efforts to get elected.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

RavenLaw is proud to sponsor an event on the Public Service Alliance of Canada’s struggle for pay equity, co-hosted by PSAC, the Workers’ History Museum, and the University of Ottawa Human Rights Research and Education Centre. The event will take place on December 10, 2015 at the University of Ottawa Alumni Hall, beginning at 5:30 pm for the English event and 7:30 pm for the French event. The event will tell the story of the PSAC pay equity struggle, with questions and answers, as well as entertainment provided by the Just Voices Choir.

Our office hours during the holidays are as follows:

December 24 – closed at noon

December 25-28 – closed

December 29-30 – opened

December 31 – closed at noon

January 1 – closed 

Thank you and Happy Holidays.

The Federal Court of Appeal recently upheld the Canada Industrial Relations Board’s decision to order binding resolution of a disputed issue in first contract negotiations between the Public Service Alliance of Canada (PSAC) and the Listuguj Mi’gmaq First Nations Council (the employer) as a remedy for the employer’s breach of the duty to bargain in good faith.

Paragraph 50(a) of the Canada Labour Code requires the parties to negotiate in good faith and make every reasonable effort to enter into a collective agreement. The Board concluded the employer violated that duty by failing to communicate its reasons to PSAC for refusing to ratify a tentative agreement until after the Board initiated unfair labour practice proceedings. During the Board’s hearing, the employer revealed its intent to renegotiate the tentative agreement’s employment equity provisions to give it the authority to terminate a bargaining unit member when a qualified First Nations member was available for the position. The tentative agreement already provided a preference for qualified First Nations members in employment, a principle supported by PSAC. But as the Federal Court of Appeal emphasized, the employer’s new demand was “highly unusual” and “one that would be difficult for any trade union to ever agree to.”

The Board crafted a detailed remedy including an order that, if the parties were unable to reach agreement on the issue of preferential hiring within a 60-day period, it would order a binding method of resolving that particular term of their agreement. In its application for judicial review, the employer argued that the Board’s order was unreasonable because, among other things, it bore no rational connection to its breach of the Code and interfered with free collective bargaining. In rejecting those arguments, the Federal Court of Appeal found that the order was tied to the employer’s breaches of the Code found by the Board. What’s more, “given the prospect of binding arbitration failing agreement, the remedial order issued by the Board may well have facilitated compromise and thus furthered the process of collective bargaining.”

Read the full text of the Federal Court of Appeal’s decision here. The Board’s decision is available here.

The Public Service Alliance of Canada was represented by Andrew Raven and Michael Fisher of RavenLaw.

As a member of a CSA Group Working Group, David Yazbeck contributed to the development of the Whistleblowing Guideline, which will be available for purchase on the CSA Group website on January 12, 2016. The Guideline sets out best practices for whistleblowing arrangements within an organization. This is aimed at the public and private sectors, as well as NGOs and voluntary organizations.

David Yazbeck is one of the leading practitioners in the area of whistleblower law. He was one of many experts or interested persons who were appointed to the CSA Group working group to establish the Whistleblowing Guideline.

Another year is drawing to a close, providing an opportunity to look back and consider the year’s victories and challenges in the labour and employment law context. 2015 was a momentous year for workers’ rights: there were several significant court judgments, as well as important legislative and political changes. Here is RavenLaw’s Year in Review, listing of the top five developments of the year:

1. Right to strike: the Supreme Court issued its new “Labour Trilogy” this year, with three judgments that elaborated upon freedom of association under the Charter in the labour context. The most significant of these cases was Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, which recognized a Constitutional right to strike. Read more about this huge gain for workers’ rights here.
2. Constructive dismissal: in Potter v New Brunswick Legal Aid Services Commission, 2015 SCC 10, the Supreme Court clarified the test for when an employee has been constructively dismissed. The Court emphasized the importance of work, confirming that the withholding an employee’s work can amount to constructive dismissal. Read more about the judgment here.
3. Upheaval in unjust dismissal law under Canada Labour Code: the Federal Court of Appeal’s judgment in Wilson v Atomic Energy of Canada Ltd, 2015 FCA 17 departed from the well-established approach to unjust dismissal complaints under the Canada Labour Code, and rejected that employees under that regime can only be terminated for just cause. The Supreme Court has granted leave to appeal the judgment, and workers’ advocates will be closely watching the results of that appeal. Read more about the Court of Appeal’s judgment here.
4. Expanded worker remedies under the Employment Standards Act: important remedial gains for Ontario workers took effect in February of this year, pursuant to amendments to the Employment Standards Act. These amendments included the elimination of a cap on recovery for unpaid wages and increases to the time limits to bring employment standards complaints. Read more about these developments here.
5. Ousting of the federal Conservatives: while this was not a legal development, there is no question that this change will dramatically impact workers’ rights going forward. The Liberal government has promised to repeal several anti-union laws passed by the Conservatives. Read more about those campaign promises here.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]

On January 7, 2016, RavenLaw was proud to support the University of Ottawa Employment & Labour Law Students’ Society in hosting a social event bringing together students interested in labour and employment law and lawyers practicing in the field. Andrew Astritis and Amanda Montague-Reinholdt were pleased to attend on behalf of RavenLaw and have the opportunity to meet students interested in our area of practice.

In its annual list of the top cases from the preceding year, Law Times News named Mounted Police Association of Ontario v Canada (Attorney General), Meredith v Canada (Attorney General), Saskatchewan Federation of Labour v Saskatchewan as three of 2015’s big cases. RavenLaw appeared before the Supreme Court of Canada in all three of these cases, representing the Public Service Alliance of Canada as an intervener in the cases.

Raphaelle Laframboise-Carignan and Amanda Montague-Reinholdt of RavenLaw have joined other lawyers from across the Ottawa bar and beyond to participate in the recently established Refugee Sponsorship Support Program. The Program is a great new initiative of the University of Ottawa Refugee Hub, with support from the Canadian Association of Refugee Lawyers, the Canadian Bar Association, Lifeline Syria, and the Human Rights Research and Education Centre. 

The Program was established in response to the major rise in interest in private refugee sponsorship due to the ongoing crisis in Syria. The Program offers pro bono legal services from lawyers of all areas of practice, who have been trained to offer general information and guidance to groups on the private refugee sponsorship process.  

To learn more about the Program and the services provided by the volunteer lawyers, visit www.refugeessp.ca.

On November 6, 2015, Morgan Rowe will be presenting a guest lecture in the University of Ottawa – Faculty of Common Law’s “Human Rights” class, as part of the class on emerging topics in human rights. This is the fourth year that Morgan has been invited to speak as part of this class. Her presentation will be focusing on topics related to sexual orientation, asexuality, and the regulation of personal relationships.