Workplace Wire - Connecting Employers to Developments in Labour, Employment & Pension Law

Trillium Lakelands District School Board v Elementary Teachers’ Federation of Ontario is a labour arbitration award of interest for employers, notably those in the education sector, who face the “headache” of dubious sick leave claims. It is a decision that is not insensitive to the realities facing employees who suffer disabling conditions. But it is also a case that is steeped in common sense and reminds us of the need for personal responsibility in certain situations.

A teacher suffered a migraine headache on her last day of vacation (in Rome, Italy) and as a result missed her flight home, which in turn caused her to miss her first scheduled day of work following her vacation.

After investigation the Employer decided not to treat the absence as a disciplinary matter. However it denied the teacher a paid sick day. A grievance ensued, which went to arbitration.

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As I have written about in previous blogs, the number of temporary foreign workers in Canada continues to skyrocket.  Growth of this category of foreigners has been large and consistent so that the number of temporary foreign workers in Canada now confidently outstrips the number of new permanent residents allowed into the country each year.

Until relatively recently, this category of workers had received little if any attention.  The fact however is that temporary foreign workers represent the largest source of foreign labour in Canada, one which employers in Canada are becoming increasingly dependant.

With such large numbers, courts across the country are increasingly being faced with employment-related cases for temporary foreign workers.  One example is a recent decision of the British Columbia Supreme Court in Dominguez v. Northland Properties Corporation, 2012 BCSC 328 (CanLII).  

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A recent decision of the United Kingdom’s Supreme Court provides valuable insight into the issue of which laws apply to employees working in various jurisdictions. This is a phenomenon which is increasing exponentially as companies across the globe expand their operations and accordingly often send people to a variety of countries.

The case, Ravat v. Halliburton Manufacturing and Services Ltd., involved an employee who worked for Halliburton, a multi-national manufacturing company headquartered in Aberdeen, Scotland. He had worked for the company for approximately 16 years, from 1990 to 2006, at which point his employment was terminated.

During his time with Halliburton, the employee consistently alternated between living in the United Kingdom and working in Libya. Specifically, his normal regime included working in Libya for 28 days, followed by 28 days in back in Preston, United Kingdom during which time he had no obligation to do work. The work which he carried out in Libya was for the benefit of the German subsidiary of Halliburton.

Following the termination of his employment, the employee proceeded to bring forward a claim for wrongful dismissal. A preliminary question however was whether the Scottish employment tribunal had jurisdiction to deal with the matter, particularly given that the employee had spent so much of his time with Halliburton stationed in Libya. The employment tribunal ruled that it did in fact have jurisdiction to deal with the matter. This decision however was overturned by the appeal tribunal. The case subsequently made its way to the Supreme Court. 

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The Federal Government late last week signalled in no uncertain terms its determination to forge ahead with fundamental reforms to the immigration system.

The government has over the last few years been on something of a mission to reform a system that has traditionally focused primarily on permanent residency, including the “family class”, into one increasingly designed to facilitate the entry of workers to meet specific labour market shortages.  The changes have been aimed at addressing what both statistics and employers have been saying for some time: Canada is not producing enough skilled workers to service rapidly expanding industries, such as the oil and gas sectors.

As I have discussed in previous postings, last April fundamental changes to the Temporary Foreign Worker Program (the “TFWP”) came into effect.  These changes spelled out strict rules for employers to ensure their compliance with immigration rules.  Employers that stray from the rules through, for example, not adhering to pre-approved wages or working conditions, can find themselves subject to various sanctions, such as heavy fines or, worse, a ban against hiring foreign workers. 

The resulting modifications to immigration laws, such as these most recent changes to the TFWP, seem to be having their intended effect as the number of temporary foreign workers has in recent years climbed to the point where they now exceed the number of permanent residents accepted each year.

With great power comes great responsibility

The Federal Government’s announcement of last week appears to signal a continuing determination that employers will play an increasingly central role in deciding who can immigrate to Canada. 

The changes are nothing less than revolutionary.  All indications are that at least some of the notoriously creaky wheels of the immigration process will be deliberately lubricated to facilitate an expedited entry of workers to satisfy employer needs for skilled workers.  Specifically, the government will ensure that employers get their choice of workers quicker, a kind of “just in time” system designed to speed up the entry of workers to support commercial operations. 

Assuming the proposed changes come to fruition, it is clear that, while employers will play a greater role in the immigration system to secure desired employees, employers will have equally enhanced responsibilities to adhere to the increasingly complex regulatory environment surrounding immigration.  This means that employers would be wise to increasingly integrate immigration into overall Human Resources decision making, policy design, as well as overall execution.  Immigration will eventually cease to be a “one-off” issue but rather be part of comprehensive operational planning and ongoing compliance.  Revolutionary? Perhaps not, but a significant change nonetheless.

Global demand has voted and the results thus far have produced clear winners and losers.

While Canada’s manufacturing sector continues to struggle under intense global competitive pressure, the commodities sector has found itself in the middle of a grand party, awash in new investment and  experiencing exponential growth.  This has resulted in increased job opportunities in western provinces as compared to their central Canadian compatriots. 

How big are commodities?

According to the Canadian Association of Petroleum Producers, Canada already produces approximately 3.2 million barrels of oil per day from a variety of sources.  This amount is forecast to increase to almost 5 million barrels by 2020, virtually all which will be produced in Western Canada.  Canada is already a major player in world oil production out-producing, among others, Venezuela, Brazil, Iraq, Kuwait, the United Arab Emirates, and Norway. 

Canada has also attracted a significant amount of investment in other commodity sectors.  For example, Canada is currently the largest producer and exporter of Potash and also the third largest producer of Natural Gas in the world. 

How is this growth affecting the labour market?

As Canada’s manufacturing sector loses ground to commodities, unemployment rates in both Ontario and Quebec  (along with all eastern provinces for that matter), continue to be significantly higher than western provinces.  To this end, the lowest rates of unemployment at present in Canada are Alberta, followed by Saskatchewan and Manitoba. 

At the same time, despite the rise in unemployment as a result of the last recession, there remain significant shortages of skilled labourers across a wide variety of industries.  Meanwhile, rapid expansions in natural resource production has led to growth in the underlying demand for skilled workers.

Crudely put (no pun intended), competition for skilled workers is heating up, and the commodities sector is becoming more aggressive at finding this talent wherever it can be found.

Given this environment, employers should be prepared for the increasing likelihood that they will be hiring foreign workers, either directly from a source country or from those who are already present in Canada.  As more companies hire foreign workers they will need to incorporate immigration matters, including hiring practices, into existing human resource policies.

Last year, there were many important developments in labour and employment, pensions and benefits, occupational health and safety and workers'compensation, and workplace privacy law. Recent Developments in Workplace Law is Heenan Blaikie's annual publication designed to summarize these key developments.

2012 Recent Developments Paper

Recent Developments in Workplace Law also serves as a supplement to the Managing the Workplace Seminar Series, a series of complimentary breakfast seminars hosted by our Ontario Labour and Employment practice group. For more information on Managing the Workplace or to register for a seminar, please visit managingtheworkplacewire.com.

In a unanimous decision, the Canadian Industrial Relations Board (the “CIRB” or “Board”) dismissed unfair labour practice complaints filed by the Canada Council of Teamsters (the “Teamsters”) against FedEx Ground. The only unfair labour practice complaint the Board upheld was filed by FedEx Ground against the Teamsters for using unlawful tactics during the campaign to suppress employee opposition to the union.

The Board's decision is important because it squarely addresses employer free speech and union campaign misconduct, both top-of-mind issues for employers facing union organizing drives.

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The McGuinty government announced that it will table its Family Caregiver Leave amendments to the Ontario legislature later today.

The proposed changes add to the Employment Standards Act, 2000’s existing Family Medical Leave provision which gives workers the right to take up to eight weeks of unpaid, job-protected time away from work to attend to ill family members. Under the current scheme, employees can take leave to attend to only certain prescribed loved ones (children, parents and spouses) with medical conditions serious enough for there to be a risk of death within a 26-week period.

The new Family Caregiver Leave proposal expands the list of family members for whom a caregiver leave may be sought by including grandparents, brothers and sisters, and “other dependant relatives.” Employees will also be able to request these unpaid leaves to assist seriously ill loved ones, not just those who may be terminally ill. Medical certificates from qualified health practitioners attesting to the illnesses in question will still be required.

Check back here for news on future developments, as workplacewire.ca follows the proposed amendments through the enactment process.

The Canada Occupational Health and Safety Regulations under the Canada Labour Code were amended September 30, 2011 to provide clarity and direction regarding certain requirements of the Regulations. The changes are unlikely to significantly impact the operations of federally regulated employers, but should be noted to ensure compliance.

The former prohibition against workers carrying tools while climbing a fixed ladder unless those tools were carried in a safe manner has been replaced by provisions requiring workers to maintain three points of contact with a fixed ladder while ascending and descending, and to carry tools, equipment or other materials in a pouch, holster or in another secure manner (amended section 2.9(3) Regulations). This further clarifies the intent of the Regulations.

The amendments also clarify that the heating, ventilation and air conditioning (HVAC) standards in the Regulations are applicable to every workplace that is equipped with an HVAC system controlled by the employer (amended section 2.20 Regulations). This deals with concerns that the previous provision placed an unfair burden on employers leasing premises and not controlling the building or system. The amended Regulations also now require the qualified person appointed to write HVAC instructions to consider CSA Guideline Z204-94, Guideline for Managing Air Quality in Office Buildings (amended 2.24 Regulations) This amends and clarifies previous awkward language that referred to the instructions having to take into account the CSA guideline.

In the United States, the Labour-Management Reporting and Disclosure Act (LMRDA) requires employers and labour relations consultants to report the details of “persuader activities” to the U.S. Department of Labour (DOL).  A consultant engages in “persuader activities” if it is contracted to counter a union organizing drive or collective bargaining effort.  The reporting requirements are intended to bring transparency to the activities of those U.S. consultants who discourage employee organizing drives and engage in so-called “union-busting” activities.

The Current Reporting Requirements and the Exemption for Legal Advice

Currently, U.S. attorneys have very limited reporting requirements under the LMRDA because it contains a broad exemption for legal advice. 

Attorneys are only required to report “persuader activities” if they have direct contact with employees.  For example, attorneys who prepare and actually deliver persuasive material to employees have reporting requirements under the LMRDA.

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The Ontario provincial election is scheduled for October 6, 2011.  While labour and employment law issues are unlikely to be the hot button election issue that “gravy” was in Toronto’s most recent municipal election, the major parties have all included labour and employment law issues in their party platforms.  We often consider how promises made during election campaigns will affect us at home, perhaps we should also consider how these proposed labour and employment law reforms will affect us at work.

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Heenan Blaikie’s Jeremy Warning recently spoke at the Construction Labour Relations Conference in Toronto, hosted by Insight Information. During the session “Preparing for the Worst: How to Respond to a High Risk Incident” Jeremy provided advice to construction managers on what to do if there is an injury at the workplace.

This is the third video from Jeremy’s presentation from a four-part series recorded by Reed Construction Data Canada. We will post the last video next week.

Heenan Blaikie’s Jeremy Warning recently spoke at the Construction Labour Relations Conference in Toronto, hosted by Insight Information. During the session “Preparing for the Worst: How to Respond to a High Risk Incident” Jeremy provided advice to managers on how to respond if government inspectors show up.

This is the first of a four-part video series from Jeremy’s presentation, recorded by Reed Construction Data Canada. We will continue to post video clips over the next three weeks.

On June 21, 2011, the federal government introduced Bill C-6, the Restoring Mail Delivery for Canadians Act to bring an end to the Canada Post labour dispute that had commenced with rotating strikes on June 2, 2011, and became a lockout on June 14.

Like Bill C-5, the Continuing Air Service for Canadians Act, Bill C-6 provides for resolution of the dispute by means of interest arbitration, using the "final offer selection" method.

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This was a question that union counsel put to me yesterday in the course of a hearing at the OLRB.  He was commenting on the announced plans to implement return-to-work legislation in relation to the Canada Post and Air Canada disputes (admittedly, at this point the Canada Post dispute is a lockout, but it started with rotating strikes).

Whether or not they would admit it, unions must be disappointed by an apparent reversal of the trend toward "constitutionalizing" Canadian labour law in the April 2011 decision of the Supreme Court of Canada in Ontario v. Fraser.  So these new interventions that ostensibly further diminish unions' bargaining rights are a source of alarm, or so it seems.

It will be interesting to see what the terms of the proposed return-to-work legislation are (see update below), because both of these employers face significant challenges and are looking for what the unions regard as concessions.  The typical return-to-work case in the past has seen the strike come to an end and the dispute resolved through mandatory interest arbitration, the results of which have generally (in this author's opinion) appeared to favour the unions.

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