On December 8, 2020, Alison McEwen will be speaking as part of Lancaster House’s annual “Bargaining in the Broader Public Sector” conference. Alison will present as part of a panel on bargaining and negotiation priorities in the post-COVID-19 world. The panel will discuss how the pandemic has caused broader policy shifts and how these shifts are likely to affect bargaining in the public sector.
RavenLaw is pleased to announce that one of its partners, Wassim Garzouzi, has been unanimously appointed as the President of the Canadian Association of Labour Lawyers (CALL) as of July 30, 2020. CALL is a voluntary organization comprised of approximately 600 lawyers who represent the labour movement across Canada. The Association endeavours to protect and advance the interests of workers in the forums where labour law is made and administered. Wassim’s presidency marks the first time that a Black, Indigenous, or Person of Colour has been named to the CALL executive since its founding in the late 1980s.
Wassim, who was previously elected to the role Regional Vice-President (Ontario), has been a member of CALL Council since 2016.
Congratulations to Wassim on his historic appointment!
On November 14, 2020, Sean McGee was inducted as a Fellow of the College of Labour and Employment Lawyers.
The College was founded in the United States. It is an organization that promotes achievement, advancement and excellence in the practice of labour and employment law, as well as working to establish leadership, high standards of professionalism, and civility among labour and employment lawyers. The College has fellows in the United States and Canada.
On September 24, 2020, RavenLaw hosted its fall LTD conference via video conference. The conference focused on long-term disability claims in the context of post-concussion syndrome and brain injuries.
The conference was attended by many union representatives of several federal public sector unions and by non-unionized employees. A neurological physiotherapist, Amaal Mirani of Lifemark Physiotherapy, provided a medical view on the fundamentals of concussions and post-concussion syndrome, their effects on the brain, and available treatments. Two guest speakers also shared their personal stories about dealing with post-concussion syndrome in both private and public sector employment, as well as their experiences pursuing claims against their insurance companies for long-term disability benefits.
Finally, James Cameron, Kim Patenaude, and Anna Lichty of RavenLaw provided a legal perspective on litigating long-term disability claims for clients with post-concussion syndrome and other brain injuries.
For unions, another round of negotiations has often meant getting back into a familiar pattern: deliver notice to bargain, prepare proposals, have a series of sometimes constructive, sometimes frustrating discussions across the bargaining table, perhaps resort to strike or face a lockout, then arrive at a collective agreement.
A union may have a right to a range of information that is relevant to collective bargaining. Unions have a right to receive information about changes an employer is considering that may have a major impact on the bargaining unit. That is particularly true in response to certain employer positions like a declaration of an inability to pay. They have that right even if they don’t ask, as the obligation to disclose is part of the duty to bargain in good faith. If they ask, the obligation is probably even more extensive. You can look at a decision called PSAC v. Forintek Canada Corp. for details about how the Ontario Labour Relations Board applied this principle several decades ago. It is still good law.
Employers may be thinking about a variety of options as COVID-19 remains one of the central features of the economy – from local markets to international trade. A Union and its members are entitled to know what decisions have been made and what decisions are being considered. To be in the best position to prepare demands, to negotiate for appropriate contract terms and to speak with members about whether a tentative collective agreement is reasonable, it is more important than ever to create a comprehensive request for information and disclosure.
Each request will be different and will depend on the sector of the economy, local conditions, and the relationship between the Union and the employer. Whatever the circumstances, no union should go into bargaining (or if already there, sign a tentative agreement) without making the request.
The information may be significant, or there may not be much. It may be that the employer is forthcoming, or it may be necessary to extract it like you were doing dentistry. In any event, it is much better to have made the request than to be surprised two months after signing the agreement with a reorganization, or a series of layoffs, or some other change that had been in the works for a considerable period of time.
This is one of the obligations the parties have in bargaining. It is more important than ever to make sure the other side lives up to its obligations.
On October 16, 2020, the Supreme Court of Canada upheld a Charter challenge to portions of the RCMP pension plan, which had been applied to prevent employees from buying back periods of service during which they had temporarily reduced hours of work for childcare reasons.
In its decision, the majority of the Supreme Court concluded that the pension law had a disproportionate, negative impact on women due to their sex. Particularly, the majority noted that the evidence demonstrated both that the Appellants themselves had been negatively impacted by the pension scheme due to childcare responsibilities and that, more broadly, women as a group face disadvantages related to balancing work and childcare obligations. The majority also accepted that the specific negative impact in this case perpetuated historical gender biases in pension plans. The majority concluded that the pension law therefore breached the equality rights of women, contrary to section 15 of the Charter.
As the Government could not provide a pressing or substantial reason to justify the negative impact on women, the Court directed the Government to design remedial measures to address the negative impacts on the pensions of the Appellants and others in the same position.
Andrew Astritis and Morgan Rowe from RavenLaw appeared on behalf of the intervener, the Public Service Alliance of Canada, to support the Appellants in their arguments that the pension law discriminates against women and other parents because of their childcare obligations.
On October 20-21, 2020, Sean McGee presented as part of Lancaster House’s annual Ottawa Human Rights and Labour Law Conference. Sean presented as part of the panel “2020 Vision – Key Precedents from an Unprecedented Year,” which reviewed recent, important labour and human rights decisions.
On October 20, 2020, Morgan Rowe presented as part of a professional learning program presented jointly by Lancaster House and the University of Toronto. The multi-day program addressed managing and promoting mental health in the workplace. Morgan spoke as part of a panel on employers’ legal obligations to address workplace stress and other workplace mental health issues.
On September 25, 2020, Jessica Greenwood will speak at the annual Kingston and the 1000 Islands Legal Conference. She will participate in a panel addressing employment litigation issues arising due to the COVID-19 pandemic.
This year’s conference is proceeding virtually. The conference is hosted by the Frontenac Law Association.
On September 10, 2020, Alison McEwen spoke at the Ottawa Six-Minute Employment Lawyer workshop, presented by the County of Carleton Law Association. Alison spoke on trends in the notice periods awarded in wrongful dismissal cases, including increases in notice periods for older workers.