DSF Announcements Make A Payment Careers Testimonials Blogs
Toronto Barrie Whitby Midland Collingwood Haliburton Other Locations
416-449-1400

LAWYER SEARCH

    • Tag: Employment Law

    Can I Form My Own Union

    Can I Form My Own Union?

    Any group of eligible workers in Ontario can form a union. If 40% of the membership signs union membership cards, the Ontario Labour Relations Board will hold a vote to determine whether the union should be certified. A secret ballot is then held. 50% or more votes in favour will cause the union to be certified.

    The Collective Agreement

    The terms of the employment relationship between the workers and the company are then determined by the collective agreement. There is no individual right to bargain for wage increases or other terms of employment. This agreement forms the basis for all employment rights and entitlements.

    Rights on Termination

    The collective agreement determines all rights and remedies on termination for cause or without cause. If there is termination or other forms of discipline imposed, the worker, by union representation, has the right to grieve the decision. With union support, such a case may proceed to arbitration. At that stage the decision maker has the power to order back pay, reinstatement or any other similar remedy. Reinstatement in this process is generally considered the default remedy when there is no cause for termination found.
    Just as a common law judge may order additional damages for unfair conduct, the arbitrator may also make such incremental awards for “aggravated” damages.

    No Right to Sue

    The union members have no right to sue in the civil courts for an employment dispute. All such issues must go through the grievance process. This is the same for “wrongful dismissal” claims. In the civil courts without union representation, an employee fired without cause can claim damages for lost income in the period of “reasonable notice”. This claim is not allowed for union members. Termination without cause will likely follow a seniority system. The person to be terminated will be allowed only the severance sums set out in the collective agreement and no more. This payment must at least meet the statutory minimum.

    Disputes with Union Management

    If there is an issue between the company and the employee, such as an alleged termination for cause, the legal parties in the case are the union and the company. The individual person is a not a party, as they are represented by the union, which has the legal authority to make all decisions in the case. For example, the union may decide the employer’s offer of reinstatement with no back pay is a fair offer to be accepted. The employee may disagree. The union must consult and discuss the issues with the employee but ultimately makes the final call on the offer.
    The same issue often arises on a termination case which may possible may be headed to arbitration. The union may decide, for whatever reason, not to support the case to proceed to arbitration. It again will certainly consult with and discuss the issues with the employee. Again, however, at the end of the day, it is the union’s final decision to make.

    Can the Decisions of a Union be Reviewed?

    The union has an obligation to allow for “fair representation” to its members. There is a potential remedy available to a disgruntled employee who has disagreed with the union’s advocacy. This is a complaint to the Ontario Labour Relations Board of “unfair representation”. These cases are notoriously difficult for the employee to win. Essentially, the worker must show that the union failed to even consider the merits of the case. If the union has consulted outside legal counsel and reviewed the case, there is virtually no chance of success for the employee’s case.

    Unions do offer certain protections to employees which are not available without their existence. There is a definitely good news and not so good news. Before you sign the union card and before you vote, you should understand both sides.

    It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact our employment law team for advice for both employees and employers on legal workplace issues.

     

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law
    Resignation & Notice Periods What is Required

    Resignation & Notice Periods: What is Required?

    THE BASICS

    Many readers will be surprised to learn that the obligation to give notice of termination of employment is two-sided. The requirement that an employer give advance notice to an employee is well known. Just as the company is obliged by law to do so, the employee has the same legal obligation when resigning from a job. This is not as well known or understood.

    The damage claims an employer may make against an employee who fails to give proper notice is considerable. Take, for example, an extreme situation to illustrate the principle. A senior marketing vice president of a large company is in the middle of presenting a bid for a major contract in a competitive market. The contest is down to two finalists. His presence is critical to the success of the bid. He resigns abruptly prior to the final presentation, and his company loses the bid.

    The employer may well successfully argue that the sudden departure of its key executive led to the loss of this opportunity. Its damage claim may well be the potential increase in profits associated with this contract.

    The amount of notice required will vary with the situation. In a case such as the one described above, the employee’s notice obligation may be as much as six months.

    In real life, this type of claim is rare. When it is made, it is usually accompanied by allegations of stealing trade secrets or similar breaches of confidence. Nonetheless, such a claim is indeed possible and both sides must be aware of this issue.

    CONTRACTUAL TERM

    Just as an employment contract may set out the terms with respect to termination in advance, a contract can also include a term dictating the notice required upon resignation. Such a term could even stipulate the expected damage claim the employer may suffer where there has been a violation, as long as it is reasonable.

    This may be appropriate where the employer commits to an expensive period of intensive training for the new hire and wants an assurance, in turn, from the employee that they will remain employed for a certain time period to rationalize this expense. The term may even include some form of compensation for the training where there has been a breach.

    UNILATERAL RESIGNATION

    Generally, when an employee delivers a voluntary resignation that is in turn accepted by the employer, a contract is made in which both parties have agreed to the notice period provided. There can be exceptions to this general rule as occurred in one recent case, English v. Manulife Financial Corporation. In this instance, the employee retracted their resignation which was refused by the employer. The Court of Appeal found that the employer had not closed the door to the employee rescinding her resignation and was clearly sympathetic to the employee’s mistaken decision to resign.

    TAKEAWAYS FOR EMPLOYEES AND EMPLOYERS

    The issue of how much notice is required upon resignation is determined based on the context of the situation. Courts will examine how vulnerable the employer was to damages arising from a sudden resignation, and how much time would be required to locate and train a suitable replacement. It is not a mathematical formula that can be applied the same way across the board.

    Generally speaking, most companies will not demand a long advance period of working notice. Often, the best course of action for an employee looking to resign on good terms is to negotiate a reasonable notice period with their employer.

    Once the two parties agree to the period of working notice, an agreement has then been made. Should the employee break this contract, then there could be a damage claim asserted by the company for its proven consequential losses. If the employer terminates the agreement by asking the employee leave before the end of the notice period, then the employee could claim the statutory minimum sums and the balance of the resignation period, if greater.

    GET ADVICE BEFORE YOU ACT 

    It is always recommended to seek advice from an experienced employment lawyer before taking action that may result in a claim for damages. Contact our employment law team for advice for both employees and employers on legal workplace issues.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law
    Can I Still Claim my Bonus even though I was Wrongfully Dismissed?

    Can I Still Claim my Bonus even though I was Wrongfully Dismissed?

    In Andros v Colliers Macauley Nicolls Inc, the Ontario Court of Appeal recently addressed the issue of whether a wrongfully dismissed employee is eligible to receive a payment in lieu of bonus throughout the common law notice period.

    If the bonus is non-discretionary and an integral part of the employee’s compensation package, damages for wrongful dismissal include bonuses earned in the year of termination, on a pro-rata basis, plus a payment in lieu of bonus throughout the common law notice period.

    In this case, the respondent worked for the appellant, a large commercial real estate company. He left for other employment, however he returned and was promoted to the position of Managing Director, which included a base salary and a yearly bonus. In the last three years of his employment his base salary was $142,500 and his bonuses were $79,228.25, $127,933.80 and $49,757.51 respectively.

    The Court found that the bonus was non-discretionary since he received the bonus every year and his employment agreement included both the base salary and bonus entitlement in the compensation section. Further, the Court concluded that the bonuses were integral to the employee’s compensation, given the bonus amounts.

    The appellant argued that the employee was not entitled to any further bonus payments, because there was a term in his employment contract which stated that only employees who were in “good standing” were entitled to bonus payments. The Court applied the test from Paquette v TeraGo Networks Inc. to this case.

    1. First, determine the employee’s common law right. Where the bonus is such an integral part of the respondent’s compensation, there is a common law entitlement to the bonus that the employee earned or would have earned.

    2. Second, whether there is something in the bonus plan that removes the employee’s common law entitlement.

    In arriving at the decision to award the employee a payment in lieu of bonus throughout the common law reasonable notice period, the court addressed the inherent unfairness in a scenario where the notice period expires the day before the date on which the bonus would be payable. As a result, the employee would get no part of the bonus that they earned throughout the course of their employment during that year and the notice period – which the Court concluded would be unfair to the employee.

    However, an employer can contract out of the requirement to pay a portion of a yearly bonus for a partial year of service or throughout the common law notice period if this is set out clearly in the employment contract or bonus plan.

    If you are unclear as to whether you are entitled to your bonus in a wrongful dismissal claim, contact human rights and employment lawyer Marty Rabinovitch at 416-446-5826 or at marty.rabinovitch@devrylaw.ca

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

     

    This blog is co-written by articling student, Janet Son.

    By Fauzan SiddiquiBlog, Employment Law
    Medical Marijuana: Limits to Consumption in Unionized Workplaces

    Medical Marijuana: Limits to Consumption in Unionized Workplaces

    A recent labour arbitration decision from Saskatchewan has framed what might be the boundaries around workplace consumption of medical marijuana.

    In Kindersley (Town) v Canadian Union of Public Employees, Local 2740, 2018 CanLII 35597 (SK LA), an employee was dismissed for vaping medical marijuana while operating the employer’s vehicle. The employee had previously disclosed to his employer that he had had a prescription for medical marijuana and was allowed to vape marijuana in the workplace.

    The employee was not allowed to operate his employer’s vehicle for approximately 30 minutes following vaporization of marijuana. He was also not permitted to operate heavy machinery for 1 hour after vaping.

    The employee was later discovered to have been vaping while driving and immediately before driving. As a result, the employer summarily dismissed the employee. The employee’s union filed a grievance challenging the summarily dismissal.

    The arbitration board held that, despite the lack of proof of the employee’s impairment on a balance of probabilities, the vaping of marijuana immediately prior to and while operating the vehicle entitled his employer to summarily dismiss him. The board also emphasized the fact that the employee appeared to lack respect for the limits of his employer’s medical accommodation of him, and cared little for the safety of his coworkers by vaping while other employees were in the vehicle with him.

    The arbitration board found the decision to summarily dismiss was not excessive discipline. The board noted that while the employee should not be deprived of using marijuana for the medical purpose intended, ultimately “there is no reason he could not have done this more discreetly rather than in the presence of his co-workers and while driving.”

    What does this case tell us?

    While it is a Saskatchewan decision, the same principles apply in Ontario: having a prescription for medical marijuana is not a free licence to consume it whenever and wherever you like, particularly while working for an employer. Moreover, even if your employer has expressly accommodated you by allowing you to consume marijuana in the workplace, not
    adhering to the terms of that accommodation could result in dismissal without notice.

    It is also important to note this case applies to unionized employees, who have greater protections from dismissal than non-unionized employees. This suggests that, in a non-unionized workplace, the threshold for misconduct meriting dismissal based on the consumption of medical marijuana could be lower.

    According to Ontario’s human rights laws, all employers must accommodate employees with a disability to the point of undue hardship. This accommodation could include allowing employees to use medical marijuana while at work. However, employees must comply with the limits of their employer’s accommodation, so as to avoid undesirable disciplinary measures.

    If you would like more information about these amendments, or would like legal advice to ensure your place of work is compliant, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

    By Fauzan SiddiquiBlog, Cannabis Law
    Bill-66-Changes-to-the-Employment-Standards-and-Labour-Relations-Acts

    Bill 66: Changes to the Employment Standards and Labour Relations Acts

    Bill 66, which received royal assent on April 3rd, 2019, changes the Employment Standards Act, 2000 (ESA) and the Labour Relations Act (LRA).

    Workplaces that are covered by the ESA should take note that:

    • Posting requirements are no more: Employers are no longer required to display a poster in the workplace delineating the ESA’s applicable regulations and rules. However, employers remain obligated to provide a poster delineating ESA rules and regulations to their employees.
    • Agreements extending the ESA overtime limit no longer require approval: Employers no longer need to apply for approval to make agreements allowing their employees to exceed 48 hours of work in a work week. As long as there has been an agreement between the employer and the employee extending the amount of hours the employee can work, employers are not violating the ESA.
    • Overtime-averaging agreements no longer require approval: Employers no longer need to apply for approval to make an agreement with an employee to average their employee’s hours of work for the purpose of determining entitlements to overtime pay. Note, however, that the employee’s hours may be averaged in accordance with the terms of an averaging agreement only if the overtime period in the agreement does not exceed four weeks.

    Workplaces that are covered by the LRA should take note that:

    • The list of non-construction employers has been expanded: municipalities, local boards, school boards, local housing corporations, hospitals, Ontario colleges and universities now no longer apply to the LRA’s rules with respect to construction employees.
    • Employers listed under this new provision may opt-out, but only if: (1) A trade union represents employees of the employer who are employed, or may be employed, in the construction industry as of April 3, 2019; (2) The application must be made by a person with authority to bind the employer; and (3) The election must be filed with the Minister of Labour within three months of April 3, 2019.

    If you would like more information about these amendments, or would like legal advice to ensure your place of work follows these new requirements, please contact experienced employment lawyer Marty Rabinovitch of Devry Smith Frank LLP at 416-446-5826 or marty.rabinovitch@devrylaw.ca

     

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

     

    By Fauzan SiddiquiBlog, Employment Law, Labour Law
    Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain

    Employment Bill 148 is Being Scrapped…But Which Parts Are Uncertain

    Last week Doug Ford announced that he was halting the implementation of a $15 per hour minimum wage in Ontario but it looks like he is seeking to additionally roll back other employment laws that have already come into force. Yesterday, October 2, 2018, Doug Ford announced in the Ontario legislature that he was going to scrap Bill 148, a bill enacted by the previous Liberal government (after a broad consultation) that increased protections for workers in an effort to alleviate the impacts of precarious work (see our previous blogs on Bill 148).

    Bill 148 introduced many new provisions to both Ontario’s Employment Standards Act and Ontario’s unionized Labour Relations Act. Some of the new provisions included a presumption that a worker is automatically an employee unless it is proven otherwise (an employee classification gets the most protection under labour and employment legislation), mandated scheduling provisions including the expansion of the “3 hour rule” (i.e. an employee gets paid for three hours of work if his/her shift is cancelled less than 48 hours before he or she was to commence working), equal pay for equal work laws between full and part-time workers, personal emergency leave provisions (10 days of emergency leave absences with 2 days of paid leave), and increased regulation on temporary help agencies.

    However, whether Bill 148 is going to be axed in its entirety or in a piecemeal fashion remains to be seen. Doug Ford’s statements in the legislature were incredibly broad, saying “We’re getting rid of Bill 148. We’re going to make sure we protect the front-line workers because 60,000 people lost their jobs under Bill 148 … We’re going to make sure we tell the world Ontario is open for business. We’re going to make sure we’re competitive around the world.”

    After Question Period, reporters swarmed Jim Wilson, Minister of Economic Development, Job Creation and Trade, with respect to Ford’s comments. Wilson scaled back Ford’s comments, stating that the government was still reviewing Bill 148 and a final decision had yet to be made. Wilson made statements that despite the Conservative government voting against the Bill when the Liberals introduced it, they were likely going to keep the $14 an hour minimum wage and other sections.

    Devry Smith Frank LLP will be monitoring the province’s efforts to scrap Bill 148. It is important to contact a labour and employment law lawyer to keep apprised of recent legislative developments and get advice on how it will impact your business or personal contracts. If you need assistance with labour and employment laws please contact one of our employment lawyers.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law, Labour Law
    Tim Hortons Franchises Reduce Employee Benefits

    Tim Hortons Franchises Reduce Employee Benefits

    The news has been filled with stories about certain Tim Hortons franchises reducing employee benefits and no longer paying employees for their breaks. What these franchises have done is a shock to many, especially so to their employees. Despite this media storm, what these franchises have done is completely legal and complies with the Ontario’s Employment Standards Act (ESA). Within the ESA, employers must provide employees with:

    • A 30-minute unpaid eating period after no more than 5 hours of consecutive work (unless an employment contract requires payment). This break can be split if the employee agrees. This break is not considered working time under the Employment Standards Act.
    • Additional breaks (ex. coffee breaks) are only paid breaks if the employee is required to stay on premises.
    • Employers are not required to provide benefit plans. If they do, they must comply with the rules against discrimination under the ESA.

    Two of the Tim Hortons franchises mentioned in this CP24 report are owned by the children of the co-founders of the franchise. These owners have provided a letter to employees outlining the following changes, all of which fall in accordance to all current laws and regulations but have still upset many of their employees:

    • Dental and Health Plan Changes/Reductions
      • 6 months to 5 years employed: 25% coverage
      • 5+ years employed: 50% coverage
    • Breaks are no longer compensated (3 hour shifts will be paid for 2 hours and 45 minutes work)

    These franchise owners claim that they have implemented these changes to offset the costs that they will be subject to with the new wage increase that was effective as of January 1st, and that they will further evaluate these changes once all costs are known and the minimum wage is increased again in 2019. They have said that they “may bring back some or all of the benefits [they] have had to remove.”

    The franchise owners assert that these changes are necessary to prevent layoffs at the restaurants. Some organizations, researchers, and government officials have been warning that layoffs will be the result of the increases to minimum wage since it is not being phased in over a significant amount of time. With little “assistance and financial help from head office… like not lowering food costs, raising prices and reducing couponing… franchises have been forced to take steps to protect their business” which has affected employment. If franchise owners cannot control the price of their goods they will take steps to curtail their costs in areas they can control such as benefits and wages.

    It must be noted however, that many economists believe that the changes to the ESA, specifically the minimum wage hike, will be a positive for the economy. They believe that more income for the estimated 8% of Canadians who work for minimum wage means more money to be spent by those employees which in turn will fuel the economy as a whole.

    How these changes will play out is unknown. For now, employers must ensure that they are compliant with these changes and put themselves in a position to succeed until the repercussions of the ESA amendments are truly understood.

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law
    Toronto Zoo Strike Costs Toronto $4 Million

    Toronto Zoo Strike Costs Toronto $4 Million

    Last spring, the Toronto Zoo saw a strike over wages for its workers, which caused the Zoo to remain closed for 5 weeks while an agreement was reached.

    The agreement gave the workers a 1.25-per-cent wage hike in each of the four years of their contracts and the non-union staff will be closely watched as the Zoo board will decide on what they will receive as a result.

    Figures were released in a report on attendance and revenue which revealed:

    • The Zoo expected 218,012 visitors
    • Net forecast loss of $3.99 million

    After they re-opened, they still saw a decrease in attendance of 65,125 due to cancellations of group trips and camps. With the addition of the pandas, attendance hit 1.3 million and is expected to dip once they are transported to Calgary.

    Overall, August attendance levels were below target, but, still above 2016 levels with a rebound happening in September.

    Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400.

    By: Nicolas Di Nardo

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law, Labour Law

    Ontario’s Workforce is Increasingly Temporary

    Recently, Fiera Foods, an industrial bakery in Toronto, came under fire for the third death of a worker at its factory since 1999. All three workers were temporary workers and killed in workplace accidents, giving rise to questions of the quality of training that such employees received.

    A temporary worker is more likely to be injured on the job. Research suggests that temps receive less training while also being assigned riskier work. Last year, non-clerical temps suffered more than twice as many injuries as non-temps doing similar work.

    Dangerous working conditions are just one aspect of employment that employment legislation addresses. The Employment Standards Act is designed with the benefit of employees in mind through providing protections for them in respect of their employment relationships. However the legislation in Ontario fails to include some of the most vulnerable individuals in the workforce. Temporary workers fall outside the majority of the protections provided by legislation such as the Employment Standards Act.

    Unprotected, yet on the rise. Employment in Ontario can no longer be considered made up of stable jobs with benefits and security. Instead, temporary work positions are increasing, and taking the place of permanent positions. In Ontario it has increased by 20% in the last ten years. In the GTA alone there are over 1700 temporary employment agencies. And with the rise of temporary work comes the rise of not only safety issues, but also insecurity.

    Employers of temporary workers are permitted to treat temporary workers differently than permanent workers. They can provide the temporary employees with no benefits and lower wages than their permanent counterparts. There is also no obligation to make temporary workers permanent, even after years of uninterrupted service.

    What is especially troubling, given the deaths of three temporary workers at one factory, is that there is a liability incentive for companies using temp agencies. The workplace can be investigated and charged by the Ministry of Labour, but if it uses a temp agency, it is not liable under WSIB. Under WSIB it is the temp agency that is liable for injury, not the workplace. This saves the workplace money on insurance premiums and incentivizes the workplace to staff its entire workforce with temporary workers, and there is nothing in the legislation to prevent this.

    In response to the deficiencies in providing protections for the present character of the workforce in Ontario, namely that temporary workers increasingly make up a large proportion in certain industries, Bill 148 is being proposed. “Fair Workplaces, Better Jobs Act, ” the proposed legislation best known for aiming to increase minimum wage to $15, addresses some of the vulnerabilities of temporary workers. If successful, the Bill would require equal wages for temporary and permanent workers, as well as making it easier for temp workers to unionize. The Bill aims to curb companies avoidance of creating permanent jobs by lessening the financial incentives of employing temp workers. However, in its present version, Bill 148 does not require employers to make workers permanent after a certain period of employment, nor does it restrict the proportion of the workforce that can be filled by temporary workers. Employee advocates are hoping that as the Bill progresses it will close more loopholes and increase protections for the full nature of the Ontario workforce.

    Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400.

    By: Samantha Hamilton, Student-at-Law

    “This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”
    By Fauzan SiddiquiBlog, Employment Law
    Ontario’s Colleges Call for Strike

    Ontario’s Colleges Call for Strike

    By: Stuart Clark, Student-at-Law

    According to the Toronto Star, the Ontario government has offered faculty members at the province’s colleges a 7.5% wage hike. However, the Ontario Public Service Employees Union (“OPSEU”), has called for a strike vote in the fall—wanting to address other issues beyond compensation.

    Employers and workers represented by a union negotiate working conditions through the process of collective bargaining, governed by Ontario’s Labour Relations Act, 1995. Once a union has been certified or recognized in accordance with the Act (s. 16), both parties are obliged to come together and bargain in good faith to reach a collective agreement (s. 17). For sophisticated employers and unions, the scope of an agreement can be immense; covering everything from salaries, to the hiring process, and even how workers are individually scheduled for their shifts.

    For example, in a recent blog post, we noted that LCBO workers had threatened to strike over the July long weekend. Workers have since ratified a deal, which included terms that end the LCBO’s practice of scheduling two-hour shifts. This is just one example of how granular a collective agreement can become.

    Normally, for the agreement to come into force, it must be ‘ratified’ by the members of the union’s bargaining unit (s. 44), with those supporting the offer totalling more than 50% of votes cast. Even if union leadership supports a deal, this is no guarantee of its success.

    In this case, the government has indicated that, before any strike vote, that the faculty union members vote on the last offer they have received. Employers usually have this right, stored under s. 42 of the Act, which says:

    1. (1) Before or after the commencement of a strike or lock-out, the employer of the employees in the affected bargaining unit may request that a vote of the employees be taken as to the acceptance or rejection of the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties and the Minister shall, and in the construction industry the Minister may, on the terms that he or she considers necessary direct that a vote of the employees to accept or reject the offer be held and thereafter no further such request shall be made.

    The ability for the employer to call for a vote is a tactic of last resort—and can only be done once. In fact, in 2010, when the current collective agreement was signed, colleges used s. 42 to call for a vote, which approved the agreement with a slim majority. Only time will tell to see if this strategy will pay off for a second time, or if both parties will be forced to return to the bargaining table.

    Devry Smith Frank LLP is a full service law firm that has a very experienced group of lawyers within our employee and labour law groups. If you are in need of representation, please contact one of our lawyers today or call us directly at 416-449-1400.

    “This article is intended to inform and entertain. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”

     

    By Fauzan SiddiquiBlog, Employment Law, Labour Law