Changes to modern era labour relations afoot
The right to collective bargain and be a member of a workplace union is enshrined in Canada's Charter of Rights and Freedoms (the "Charter"). This right has formed the backbone to the long history of unionization within certain industries, such as education, transportation, manufacturing, healthcare, among many others. However, recent legislative changes are altering the labour and employment law landscape. On the one hand, the Ontario provincial government encroached on these rights with recent legislation, while simultaneously the Canadian federal government is moving to introduce laws which would seemingly strengthen the power of unions.
Meaning, it is an interesting time to be an employer or employee in Ontario.
Ontario
What are the changes?
On a provincial level, we have just seen the passing of unprecedented legislation by the Ontario government imposing a new collective agreement for education support workers represented by the Canadian Union of Public Employees ("CUPE"), prohibiting workers or the schools board from striking or locking out for the duration of the agreement, and imposing significant fines if they do. In order to pass this legislation, the Ontario government had to invoke the "notwithstanding clause" of the Charter to override the violations to the CUPE workers' right to strike.
For more on this legislation, please see our previous blog post: Potential legislation prohibiting labour lockouts and strikes.
Impact on employers?
Aside from effecting the direct employers of CUPE workers, this legislation may have knock-on consequences for other employers, whether unionized or not.
For unionized employers, it raises questions about whether we may see the start of an increasing trend of the government getting involved with the collective bargaining process. The education sector is unique because of the widespread public interest in keeping kids in school, both for kids themselves and parents who need to work. However, the smooth functioning of many unionized workplaces is also of public importance. For example, unionized electricity workers play a critical role in modern-day society, with potential workplace disruptions effecting the public at large. While we don't expect legislation like the Keeping Students in Class Act, 2022 to become the norm, employers should be alert to the possibility that the government may take extraordinary measures in extreme circumstances.
For non-unionized employers, this legislation could have a chilling effect on employees who may have been thinking of unionizing, which may be beneficial for the employer. However, the flipside is this legislation follows on the heels of a year of legislative change to employment laws, most of which is employee-favourable. Employers would do well to keep an eye on any new developments in this rapidly changing arena.
Impact on employees?
For employees, unionized and not, the potential erosion of collective bargaining rights, as seen by the Keeping Students in Class Act, 2022, could be detrimental. For unionized employees, it may mean less of a voice in negotiating their workplace terms and conditions. Beyond that, employment rights negotiated as part of a collective bargaining process have historically prompted changes to employment laws to enhance rights for all employees, unionized or not. For example, job-protected maternity leave was a right initially pushed for by unions as part of the collective bargaining process.
That said, the increased government intervention in employment matters over the last year has in large part been favourable to employees. This is combined with a judiciary which currently tends to interpret employees' rights and entitlements in a generous manner.
Cumulatively, employees are encouraged to keep themselves informed of their rights and entitlements in the workplace and seek legal advice if there is concern there rights are being abrogated or otherwise not provided.
Canada
What are the changes?
On a federal level, we are also seeing potential changes to the labour law regime. The Canadian government is currently conducting consultation on proposed legislation which would prohibit the use of replacement workers during strikes or lock outs in the federal sector.
A replacement worker is a worker who is a not a member of the union bargaining unit and who is hired to perform the duties of a unionized employee who is on strike or lock out. Currently, when unionized employees are on strike or lock out, the employer is allowed to use replacement workers to perform the work so long as the workers are not being used "for the demonstrated purpose of undermining the trade union's representational capacity rather than the pursuit of bargaining objectives."
Impact on employers?
For unionized employers in the federal sector, this legislation, if passed, could give significantly more power and influence to unionized employees. The inability to hire replacement workers to continue operations while employees are on legal strike/lock out would likely incentivize employers to keep any period of lock out or strike to a minimum. It is not yet known what, if any, exceptions will be built into the legislation.
While non-unionized employers are unlikely to be directly impacted by this legislative change, the knock-on consequences could include:
- Increased desire by employees to unionize; and
- Increased rights for employees generally. As indicated above, many rights and entitlements we see in current employment standards legislation were seen first in collective agreements.
Impact on employees?
Subject to any limitations in the legislation, this could be a big win for unionized employees. If replacement workers cannot be hired, employers are more likely to quickly come to the table to negotiate on employee requests. Even non-unionized employees may receive indirect benefit from this legislation, including a potential shift towards increased rights and entitlements for employees working in the federal sector.
Takeaways:
The rapid evolution of employment and labour laws over the last few years has resulted in significant change for all workplaces. Rights and obligations for both employees and employers have been developed at a dizzying pace, especially during the COVID-19 pandemic and immediate aftermath. While it remains to see exactly how the newest labour legislation (and contemplated legislation) will shape the legal landscape, employers and employees alike are reminded of the importance of staying up to date with their respective workplace entitlements and obligations. Failing to stay apprised of legal changes may result in increased exposure to legal liability, or, on the flipside, a loss of opportunity to enjoy the entitlements afforded to employees.
Lee Workplace Law would be happy to answer any questions you may have about employment laws and how they may impact your workplace.
