Home|Conferences & Workshops|37th Annual Labour Arbitration and Policy Conference - Calgary


37th Annual Labour Arbitration and Policy Conference

Calgary • June 13 - 14, 2019
The Westin Calgary


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In association with: http://www.fieldlaw.com/http://neumanthompson.com/http://www.blairchahley.ca/
 

Thursday, June 13, 2019


Registration and Evening Cocktail Reception
(hot and cold hors d'oeuvres will be served)
5:00 PM - 7:00 PM  


Evening Plenary


Fireside Chat with Arbitrator Sims: Reflections on the past, challenges for the future

7:00 PM - 9:00 PM

Plenary Speaker

Andrew Sims, Q.C.
Arbitrator/Mediator


In Conversation With:

Dwayne Chomyn
Employer Counsel
Neuman Thompson
Nancy Furlong
Director of Operations
Non-Academic Staff Association

Panel Summary

In addition to his extensive labour board and arbitration experience, Andrew Sims, Q.C., has been involved in crafting the legislation that governs labour relations in Alberta and the federal jurisdiction, including the most recent overhaul of the Alberta Labour Relations Code. He is the 2011 recipient of the Bora Laskin Award for outstanding contributions to Canadian labour law. In this unique fireside chat, Arbitrator Sims will be asked to share insights garnered from more than four decades of experience, discussing the past, present, and future of labour relations in the province.

FIELD LAW SPONSORED ANNUAL KICK-OFF RECEPTION

9:00 PM

Friday, June 14, 2019


Breakfast 8:00 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Plenary 1


New and Noteworthy: An update on the year's most significant cases and legislation

9:00 AM - 10:10 AM

Panelists

Phyllis Smith
Arbitrator/Mediator

Barbara Johnston
Employer Counsel
Dentons
Dan Scott
Union Counsel
Seveny Scott

Panel Summary

Top advocates and a seasoned arbitrator will review the most important recent decisions from courts, arbitrators, and tribunals, as well as key legislative changes. The panel will also flag significant ongoing litigation and legislative reform on the horizon. Final selection of topics will take place a few weeks before the conference, ensuring up-to-date coverage of the most consequential developments.

BREAK (with refreshments)

10:10 AM - 10:30 AM

Friday, June 14, 2019


Breakfast 8:00 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Plenary 2


The Blunt Truth: Experts clear the air on cannabis

10:30 AM - 11:15 AM

Panelists

Dr. Charl Els
Clinical Professor, Department of Psychiatry
University of Alberta
Steven Maxwell
Drug Recognition Expert and Chief Consultant
Steven Maxwell Drug Recognition Expert Consulting

Panel Summary

With movies and television frequently portraying cannabis users as unambitious potheads and couch potato stoners, it's no wonder that there are many misconceptions about the drug. However, workplace parties can't operate on the basis of anecdotal evidence and stereotypes. They must rely upon firmly grounded scientific facts when creating workplace policies and testing for impairment.

In this session, two renowned experts will provide an overview of the science behind cannabis, including its physical and mental effects on the body, the symptoms of impairment, and the various testing methods that are currently available, addressing issues such as:

  • Effects of cannabis use: How is cannabis normally ingested or consumed? How does it typically affect the body, both physically and psychologically? How long do these effects typically last? Is cannabis addictive or habit-forming?
  • Measuring impairment: Does cannabis consumption necessarily result in impairment? What are the symptoms of impairment and how long does it generally last? What are the challenges to determining whether a person is impaired? Are there any tests or products currently available on the market that help in making this determination? Does the presence of cannabis in bodily fluids correlate to impairment?
  • Impact of off-duty use: Can off-duty cannabis use impact on-duty performance? Is there medical consensus on the length of time a person should abstain from cannabis consumption before performing safety-sensitive work?

CONCURRENT MORNING SESSIONS

11:25 AM - 12:25 PM

NETWORKING LUNCH

12:25 PM - 1:45 PM

*Choose two concurrent sessions when you register for the conference

Concurrent Sessions (am & pm) - Friday, June 14, 2019


The New 9 to 5: Flexible work arrangements in the 21st-century workplace

Panelists

Laura Hambley
President, Work EvOHlution; Adjunct Assistant Professor, Department of Psychology, University of Calgary

Jeffrey Fitzgerald
Legal Counsel
City of Edmonton
Rebecca Thompson
Grievance and Adjudication Officer
Public Service Alliance of Canada

Panel Summary

Flexible work arrangements such as telecommuting, compressed workweeks, and modified hours are a valuable recruitment and retention tool for workers who appreciate having some autonomy over when and where they work, and can also serve as an accommodative measure for some disabilities or family care obligations. However, many workers still hesitate to request them due to workplace cultures that value physical presence in the office, and many unions and employers worry about how to fairly administer such policies and appropriately supervise employees to ensure that they remain productive.

In this session, experts will address both the legal and practical considerations that arise when workplaces adopt flexible work arrangements, covering issues such as:

  • Adopting appropriate policies: What policies and procedures should employers put in place to appropriately respond to requests for flexible work arrangements? Can employees be required to provide a reason or justification for their request? Should there be an appeal mechanism when a request is denied? What role, if any, should the union play in this process? Could revoking the flexible work arrangement constitute a constructive dismissal?
  • Meeting the duty to accommodate: How does the approach change when the employee is requesting an alternative work arrangement as a human rights accommodation? What safeguards should workplace parties put in place to ensure that requests for accommodation (and the corresponding duty to disclose/provide information) are not improperly addressed?
  • Supervising employees/monitoring productivity: What measures can employers put in place to supervise employees who work remotely or during off-hours? Can an employer monitor keystrokes? Use surveillance measures such as cameras or screenshots? Require periodic check-ins with managers? Use productivity or time tracking software?
  • Ensuring fairness: What measures can workplace parties take to ensure fair and equitable flex-time agreements among employees? How should workplace parties manage competing requests, or requests that conflict with provisions in a collective agreement such as scheduling by order of seniority? How should unions respond to requests that may interfere with the rights of another member?

 

More Like Sherlock, Less Like Clouseau: Best practices in harassment investigations

Panelists

Kathy Vasko
Labour and Employment Consultant
Vasko & Associates
Ayla Akgungor
Employer Counsel
Field Law
Rick Engel
Union Counsel
Gerrand Rath Johnson

Panel Summary

Allegations or incidents of workplace harassment can easily create a hostile work environment, damage an organization's reputation, and result in legal liability for workplace parties. With so much at stake, employers and unions cannot afford to be as clumsy as Inspector Clouseau in responding to workplace harassment. Specialists will review best practices for conducting fair and effective harassment investigations.

  • Initiating an investigation: What steps must an employer take once it becomes aware of an allegation of workplace harassment to comply with its legal obligations under provincial or federal legislation? What are the essential qualities or qualifications of a competent investigator? When should an external investigator be retained? What types of issues may need to be addressed before an investigation begins?
  • Conducting a fair investigation: What does procedural fairness require in the context of a harassment investigation? Are employees accused of harassment entitled to know the allegations against them? What timelines should govern the investigation? What interim measures may be considered by the employer or requested by the union while the investigation is ongoing? When should the respondent be removed from the workplace pending the outcome of the investigation? What should be done when an employee faces criminal charges?
  • Responding to an investigation: Can an employer rely solely on an investigation report as the basis for discipline? Is discipline always the best response to workplace harassment? How should workplace parties respond if an employee is dishonest during the course of an investigation? What measures should an employer take when an allegation is not substantiated?
  • Managing information: How much information about an incident or complaint of harassment can be kept confidential? What are the employer's obligations to disclose or withhold the investigation report, witness statements, or other documents that form part of the investigation? In what circumstances will arbitrators order investigation reports to be disclosed at arbitration?
  • The role of the union: What is the role of the union in an investigation? When should the union conduct a parallel investigation? How can the union meet its duty of fair representation if both the complainant and respondent are union members? Do employees being interviewed during an investigation have the right to union representation?

 

Human Rights at the Workplace: Accommodating family status and disability

Panelists

Michael Gottheil
Chief of the Commission and Tribunals
Alberta Human Rights Commission
Jacqueline Laviolette
Associate General Counsel, Labour and Employment
Alberta Health Services
Kara O'Halloran
Union Counsel
Chivers Carpenter

Panel Summary

Employee requests for accommodation based on child/eldercare responsibilities and mental health disabilities present unique challenges for workplace parties. How much "self-accommodation" is required before an employer must provide family status accommodation? When are employers required to alter performance or attendance standards for employees with mental health disabilities? Experienced lawyers will provide guidance in addressing these complex issues in light of current caselaw.

  • Family status: What is the current state of the law in Alberta regarding family status discrimination? Are employees required to self-accommodate before they are entitled to advance a claim for accommodation from the employer? If so, what's considered a reasonable alternative solution? What is the best process for employers and unions to follow when an employee requests, or appears to require, accommodation? How is the statutory leave of absence for family responsibilities in the Employment Standards Code applied where the collective agreement provides similar benefits?
  • Mental health disabilities: Are employers justified in being skeptical of medical information and limitations related to mental health disabilities on the basis that such information is based largely on self-reporting? Or is such skepticism rooted in the stigma and stereotypical assumptions associated with mental illness? Do employers and/or unions have a duty to be more sensitive in dealing with individuals with mental health disabilities that make them especially sensitive to criticism or allegations of wrongdoing? When are employers required to alter performance or attendance standards for employees with mental health disabilities?
  • Co-worker concerns: How should employers and unions address questions or concerns raised by co-workers about accommodations an employee is receiving because of family status needs or a mental health disability, while respecting privacy and confidentiality?

 

Objection!: Practical advice on pre-hearing issues

Panelists

Anne Wallace
Arbitrator/Mediator

Cheryl Yingst Bartel
Arbitrator/Mediator

Patrick Nugent
Union Counsel
Nugent Law
Thomas Ross
Employer Counsel
McLennan Ross

Panel Summary

Successfully arguing cases at grievance arbitration requires careful preparation and consideration of procedural elements that are unique to arbitral proceedings. In this session, experienced arbitrators and lawyers will provide practical advice on how to handle common pre-hearing issues and maximize efficiency in the arbitration process.

  • Preliminary considerations: Where a choice of forum exists, when is arbitration the most appropriate forum for an employment-related dispute? What is the effect of the new marshalling provisions under the Alberta Labour Code? What types of preliminary objections to arbitrability may be available to the parties? What are the consequences of exceeding time limits set out in the collective agreement? When will an arbitrator grant a pre-hearing order? When will an arbitrator order bifurcation of proceedings or consolidation of grievances?
  • Time management and efficiency: What steps can the parties take to make the process more cost- and time-efficient, such as streamlining the issues or agreeing to certain facts? How should timelines be managed? When will an arbitrator grant a request for adjournment? When will an arbitrator impose costs or other terms related to adjournment or delay?
  • Production and disclosure: What principles govern documentary disclosure in arbitration? Can an arbitrator order pre-hearing production? When will an arbitrator order a party to provide particulars? What types of documents and information can be shielded from disclosure on the basis of privilege? When will a party be denied access to investigative reports, employee medical records, performance reviews, or management documentation? How can a party obtain documents in the possession of a third party?
  • Calling evidence: When and how can parties request an arbitrator to issue a subpoena to compel the attendance of witnesses? When will examining a witness via teleconference or video conference be accepted over in-person testimony?

 

Friday, June 14, 2019


Breakfast 8:00 AM - 8:45 AM  
Introductory remarks by Co-Chairs 8:45 AM - 9:00 AM  


Plenary 3


Spotlight on Privacy and Harassment: Tweeting, texting, employee monitoring, and more

3:00 PM - 4:15 PM

Panelists

James Casey
Arbitrator/Mediator

Heather Jensen
Union Counsel
Plaxton Jensen
Ryan Smith
Employer Counsel
Neuman Thompson

Panel Summary

The boundary between public and private conduct is becoming ever more blurred. Dissatisfied customers who previously would have spoken to a manager are taking to social media to complain about individual workers. The ubiquity of smartphones means that private moments can be recorded, shared, and even publicly posted without notice. As technology challenges traditional conceptions of privacy, concerns regarding new forms of harassment are emerging. When does the circulation of private details constitute harassment? Should employers use the technological means at their disposal to protect employees from harassment, even if that may mean invading employee privacy? In this session, experts will debate these issues with reference to fact scenarios drawn from real life. Attendees will have an opportunity to share their opinions with colleagues and vote on key questions about privacy and harassment. Issues to be addressed may include:

  • What is the appropriate response when off-duty employee conduct, such as making lewd/harassing comments, goes public? Are employees subject to dismissal on the basis that negative publicity may harm the employer's business interests?
  • What steps is an employer required to take to protect its employees from customer or client harassment on social media? Can employers stop customers or clients from taking pictures or videos of its employees in the workplace? Is there an obligation to do so?
  • What obligation does an employer have to ensure that employees are not using employer technology (e.g. computers, smartphones, etc.) to harass co-workers? Do employees have any expectation of privacy when using employer-owned devices?

CONFERENCE ENDS

4:15 PM

Keynote Speakers


Thursday, June 13, 2019



Dealing with Workplace Impairment: Balancing safety, accommodation, and employee rights

9:00 AM - 4:00 PM

Workshop Leaders

Scott Walsworth
Arbitrator/Mediator

Laura Mensch
Employer Counsel
Miller Thomson
Crystal Norbeck
Union Counsel
Gerrand Rath Johnson
Dr. Charl Els
Clinical Professor, Department of Psychiatry
University of Alberta
Steven Maxwell
Drug Recognition Expert and Chief Consultant
Steven Maxwell Drug Recognition Expert Consulting

Workshop Summary

The legalization of recreational cannabis has profound implications for employers and unions seeking to ensure workplace safety while respecting employee privacy. This in-depth training session will teach participants to recognize the signs of impairment and problematic substance use, ensure workplace safety through legally-compliant policies dealing with impairment, and accommodate employees with substance use disorders.

Experts in impairment recognition and addictions will join experienced labour lawyers and arbitrators to teach participants the skills and knowledge necessary to:

  • Adapt workplace policies to address the legalization of recreational cannabis.
  • Spot the signs of impairment.
  • Ensure workplace safety with policies and procedures that prohibit impairment while respecting employee rights.
  • Identify aspects of "Standardized Field Sobriety Tests" and "Drug Recognition Expert" training that may be applicable to the workplace.
  • Recognize the signs that someone in the workplace may have a substance use disorder.
  • Approach employees suspected of having a disorder in a non-threatening way that encourages them to disclose and seek help.
  • Accommodate employees with a substance use disorder while maintaining workplace safety.

VIEW THE WORKSHOP AGENDA



Thursday, June 13, 2019



Back to School: Current issues in post-secondary labour relations

9:00 AM - 4:00 PM

Workshop Leaders

Mark Asbell
Arbitrator/Mediator

Jacqueline Lacasse
Senior Director – Employment & Academic Labour Relations
University of Calgary
Kelli Lemon
Union Counsel
Seveny Scott
Timothy Mitchell
Employer Counsel
McLennan Ross
Leanne Rosinski
Associate Director, Labour Relations
Association of Academic Staff of the University of Alberta

Workshop Summary

Before Alberta's Bill 7, An Act to Enhance Post-Secondary Academic Bargaining, radically altered the legal landscape governing labour relations between academic staff associations and post-secondary employers, staff associations were not even considered "trade unions." Now, parties in the post-secondary sector find themselves governed by the same rules as other employers and unions governed by the Labour Relations Code. In this full-day program, experienced union and employer representatives will provide guidance on complying with the new legal "rules of the game," as well as updates on a perennially vexing issue, the discipline and discharge of tenured faculty members. While this workshop is primarily geared to the changes in Alberta, the topics covered will be of interest to all participants involved in academic collective bargaining.

Workshop participants will learn how:

  • Academic designations are determined in the new appeal process, defining who is a faculty member.
  • Arbitrators have drawn the lines between academic freedom and disciplinable conduct.
  • The duty of fair representation is likely to apply to unions representing academics.
  • To prepare for the possibility of jurisdictional disputes, raids, and the formation of new bargaining units.
  • Bargaining strategies may differ under a strike/lock-out regime versus binding arbitration.
  • To distinguish hard-bargaining from bad faith bargaining.
  • To maintain effective, legal communication with faculty without compromising negotiations or violating the provincial labour code.

VIEW THE WORKSHOP AGENDA



Thursday, June 13, 2019



Indigenous Cultural Competency Training

9:00 AM - 4:00 PM

Workshop Leaders

Tim Fox
Director, Indigenous Relations
Calgary Foundation

Workshop Summary

On June 2, 2015, the Truth and Reconciliation Commission of Canada released its final report, which recorded multiple calls to redress the legacy of Indian residential schools and promote healing between Indigenous and non-Indigenous Canadians. Among the Commission’s workplace recommendations are calls for all levels of government and the corporate sector to deliver skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

In alignment with these calls to action, Lancaster House is offering Indigenous Cultural Competency Training, through a program created by Tim Fox, Director of Indigenous Relations at the Calgary Foundation. Indigenous Cultural Competency recognizes that healing and reconciliation with Indigenous communities requires an understanding of the historic experience and current situation of Indigenous communities.

Lancaster House would like to acknowledge that this workshop and the conference on the following day are taking place on Treaty 7 territory, home of the Kainai, Piikani, Siksika, Tsuut’ina, Stoney-Nakoda, and Métis Nation, Region 3.

Truth and Reconciliation Commission's Calls to Action (for Workplaces):

  1. We call upon the federal government to develop with Aboriginal groups a joint strategy to eliminate educational and employment gaps between Aboriginal and non-Aboriginal Canadians.

  1. We call upon federal, provincial, territorial, and municipal governments to provide education to public servants on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal–Crown relations. This will require skills-based training in intercultural competency, conflict resolution, human rights, and anti-racism.

  1. We call upon the corporate sector in Canada to adopt the United Nations Declaration on the Rights of Indigenous Peoples as a reconciliation framework and to apply its principles, norms, and standards to corporate policy and core operational activities involving Indigenous peoples and their lands and resources. This would include, but not be limited to, the following:

    1. Ensure that Aboriginal peoples have equitable access to jobs, training, and education opportunities in the corporate sector, and that Aboriginal communities gain long-term sustainable benefits from economic development projects.
    2. Provide education for management and staff on the history of Aboriginal peoples, including the history and legacy of residential schools, the United Nations Declaration on the Rights of Indigenous Peoples, Treaties and Aboriginal rights, Indigenous law, and Aboriginal-Crown relations. This will require skills based training in intercultural competency, conflict resolution, human rights, and anti-racism.

VIEW THE WORKSHOP AGENDA



Thursday, June 13, 2019



Advanced Topics in Accommodation: Responding to complex disability, family status, and religious practice claims

9:00 AM - 4:00 PM

Workshop Leaders

Kelly Williams-Whitt
Arbitrator/Mediator and Associate Professor, Faculty of Management
University of Lethbridge
Sarah Crummy
Union Counsel
Blair Chahley
Erin Ludwig
Employer Counsel
McLennan Ross

Workshop Summary

Some of the most challenging situations facing employers and unions in the workplace involve the accommodation of complex medical conditions, family status obligations, and religious practices.

Questions to be addressed in this workshop include the entitlement to and adequacy of information, the suitability of accommodation measures, and the appropriate response to conflicting rights and obligations.

An experienced arbitrator and labour relations practitioners will build on participants' existing knowledge of workplace accommodation principles by addressing complex issues such as:

  • In circumstances where doubt arises as to the objectivity and sufficiency of medical information, what additional information can the employer seek in order to evaluate appropriate accommodations?
  • How should workplace parties respond to requests for accommodation of disabilities that have controversial diagnoses, such as chronic fatigue, Lyme disease, or multiple chemical sensitivities?
  • To what extent can the employer enquire into the measures that the employee has already taken to self-accommodate family status obligations and second-guess the employee's attempts to balance family and work obligations?
  • What steps should be taken if a worker expresses religious beliefs or requests a religious accommodation that infringes on the rights of others? For example, what is an appropriate response to an employee who refuses to work with persons of a different gender based on religious grounds?
  • How should employers and unions respond to a request for accommodation that conflicts with terms of the collective agreement or the accommodation requests of other employees?

VIEW THE WORKSHOP AGENDA



CPD


Click here to find out more information regarding CPD and the hour requirements in your province.

Conference Sessions

  • Alberta lawyers may consider including this program as a CPD learning activity in their mandatory annual Continuing Professional Development Plan required by the Law Society of Alberta.
  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • This program has been approved by CPHR Alberta for 7.17 Continuing Professional Development (CPD) hours.

Workshops

  • Alberta lawyers may consider including this program as a CPD learning activity in their mandatory annual Continuing Professional Development Plan required by the Law Society of Alberta.
  • Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval.
  • Each program has been approved by CPHR Alberta for 5.5 Continuing Professional Development (CPD) hours.