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Labour Arbitration and Policy Conference

 
 
 
 

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Wednesday, November 21, 2018


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 1


Looking Back, Moving Forward: An update on major caselaw and legislative developments

9:10 AM - 10:30 AM

* Panelists to be announced

Panel Summary

In this session, top advocates will review the year's most important cases and legislative developments, including the review of the Labour Relations Code. Additional topics will be added in the weeks leading up to the conference to ensure coverage of the latest and most important developments.

BREAK (with refreshments)

10:30 AM - 10:45 AM

Wednesday, November 21, 2018


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 2


Clearing the Cannabis Confusion: Experts dispense advice on policies, testing, and impairment

10:45 AM - 12:00 PM

* Panelists to be announced

Panel Summary

The legalization of recreational cannabis and the increasing use of medicinal cannabis have created big headaches for employers attempting to respect the rights of employees while at the same time ensuring that they remain safe and productive workers. Unions, for their part, must be aware of the level of protection employees are entitled to expect. In this session, medical experts will join seasoned labour lawyers to discuss the effects of cannabis consumption, the challenges in assessing impairment, appropriate workplace policies, and other critical issues, including:

  • Legal landscape: What are the key features of the federal legislation that is legalizing cannabis for recreational purposes? How have the provinces adapted their laws relating to substance use? Are there any specific legislative measures to address cannabis in the workplace?
  • Understanding use and impairment: How widespread is cannabis use among Canadian workers? What are the short- and long-term effects of cannabis use? Can it be addictive or habit-forming? What are the symptoms of impairment? How long does impairment last? Are there any forms of cannabis, or strains of cannabis, that do not cause impairment, or are less impairing than others? Does the effect on the body vary depending on the method of consumption?
  • Impairment testing: Under what circumstances are employers allowed to administer drug tests? What testing methods are currently available, and what do they measure/reveal? How is impairment testing being addressed by federal and provincial legislation in relation to impairment while driving?
  • Disclosure and accommodation: In what circumstances can employees be required to disclose their medical or recreational use of cannabis? What type of medical information should be requested to determine whether employees can safely and effectively perform their jobs? Following the Supreme Court of Canada's ruling in Stewart v. Elk Valley Coal Corporation, can an employee be required to disclose substance dependence prior to a work-related incident or else face dismissal without the benefit of accommodation?
  • Crafting workplace policies: Do workplace parties need to rewrite their policies to address medical/recreational cannabis use or can they use existing drug and alcohol policies with slight modifications? What elements should be included? Can possession or a positive test result provide justification for discipline or termination, or would such a policy be ripe for challenge? What are reasonable restrictions for employers to put on cannabis use during work hours (given that having a glass of wine at lunch is generally permissible)? What about restrictions on off-duty use?

NETWORKING LUNCH

12:00 PM - 1:00 PM

Wednesday, November 21, 2018


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 3


Working Session with the Arbitrators: Focus on mental health issues and harassment

1:00 PM - 2:15 PM

* Panelists to be announced

Panel Summary

In this session, attendees will gain insight into how arbitrators approach cases involving two complex issues: (1) workplace behaviour that straddles the line between unlawful harassment and general incivility, and (2) how mental health issues affecting grievors impact the grievance process. With the guidance of arbitrators sitting at their tables, attendees will work through scenarios involving these issues and learn how to identify the evidentiary and substantive issues arbitrators consider key to deciding these types of cases.

BREAK (with refreshments)

2:15 PM - 2:30 PM

Wednesday, November 21, 2018


Registration and Breakfast 8:00 AM - 9:00 AM  
Introductory remarks by Co-Chairs 9:00 AM - 9:10 AM  


Panel 4


#MeToo at Work: Responding to allegations of sexual harassment in the workplace

2:30 PM - 3:45 PM

* Panelists to be announced

Panel Summary

The #MeToo movement trained a spotlight on the incidence of sexual harassment in all areas of society including the workplace. However, it also created an environment where workplace parties may feel pressured to provide a quick response to allegations even before they can be properly investigated. In this session, legal experts will discuss the essential requirements of an investigation, appropriate responses to allegations of sexual harassment, and the union's role in supporting its members, addressing issues such as:

  • What steps must an employer take once it becomes aware of an allegation of workplace harassment to ensure that it complies with its legal obligations under provincial legislation? What specific measures are necessary to meet the federal requirements in Part II of the Canada Labour Code, introduced by Bill C-65? What steps should the employer take to ensure that an allegation of sexual harassment is properly established?
  • What are some interim measures the employer should consider and/or the union or complainant may request during the investigation? When should the respondent be removed from the workplace pending the outcome of the investigation?
  • In light of recent high profile sexual harassment allegations and the #MeToo movement, which incidents of sexual harassment are just cause for dismissal and which warrant lesser discipline? What factors do arbitrators consider in assessing discipline?
  • What measures should an employer take when an allegation is not substantiated?
  • When, if ever, can an employee alleging harassment seek redress outside of arbitration? What other forums aside from arbitration are available to a unionized employee (e.g. human rights tribunals, courts, occupational health and safety complaints), and when should they be utilized?
  • How should unions respond to a member's harassment allegations that are directed against another bargaining unit employee to whom the union also owes a duty of fair representation? How can unions support complainants while at the same time fulfilling their duty of fair representation to respondents?

CONFERENCE ENDS

3:45 PM

Keynote Speakers


  • Bargaining: Learning from the last round, preparing for the next round

Monday, November 19, 2018



Bargaining: Learning from the last round, preparing for the next round

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

Good negotiators come to the table aware of all the data and arguments that support their demands as well as the data and arguments that may be used to resist their demands. Given the broad range of potential subjects of bargaining as well as the importance of external factors, such as generally prevailing economic and/or political conditions, negotiating teams may feel that comprehensive preparation is unmanageable and jump into negotiations without adequate awareness of important factors affecting bargaining. In this session, Lancaster's experts will introduce participants to sources of information and research methods that will allow them to fully prepare for bargaining.

Participants will learn to:

  • Assemble and analyze data regarding internal factors, such as previous grievance experience and negotiating history, and external factors, such as terms and conditions for comparable employee groups as well as general political and fiscal considerations.
  • Determine the true priorities of bargaining unit members/employees, and how both unions and employers can apply their knowledge of these priorities.
  • Anticipate and prepare responses to the other side's demands.
  • Obtain information necessary for costing proposals.
  • Find relevant and reliable information on general economic conditions and factor this information into their bargaining strategy.
  • Locate collective agreement language, settlement agreements and awards that will bolster their own demands (including identifying appropriate comparator organizations or enterprises).

VIEW THE WORKSHOP AGENDA



Thursday, November 22, 2018



Effective Harassment Investigations: A step-by-step guide to conducting investigations

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

With recent high profile reports describing botched harassment investigations, ensuring that they are correctly carried out is more important than ever. Even persons who don’t conduct investigations themselves need to understand how a fair investigation is conducted, when an outside investigator should be retained, and in which ways to ensure that they are providing adequate disclosure while at the same time safeguarding confidential information as much as possible. In this interactive workshop, an experienced arbitrator and legal counsel will provide a step-by-step guide to effective harassment investigations and lead participants through realistic scenarios, providing them with the knowledge necessary to:

  • Ensure the investigation complies with legal requirements.
  • Select an appropriate investigator.
  • Develop suitable safeguards to maintain confidentiality.
  • Understand the union’s role in the investigation.
  • Disclose appropriate information relating to the complaint and the results of the investigation.
  • Establish fair and effective processes for questioning witnesses and the parties involved.

VIEW THE WORKSHOP AGENDA



Thursday, November 22, 2018



Disability-Related Misconduct: Establishing the connection, assessing discipline, exploring accommodation

9:00 AM - 4:00 PM

* Workshop leaders to be announced

Workshop Summary

The principles of progressive discipline and the requirements of human rights law seem to clash whenever an employee claims that his or her misconduct is, at least in part, caused by a disability. The "hybrid" approach to disability-related misconduct, developed in British Columbia a decade ago, attempted to resolve the apparent conflict between accommodation and workplace discipline by separating culpable behaviour from non-culpable behaviour, but this is easier said than done. There is now even greater uncertainty regarding the proper approach to disability-related misconduct following the Supreme Court of Canada's decision in Elk Valley, which upheld the dismissal of an employee with a substance dependency for failing to disclose his disability prior to a workplace accident. In this interactive workshop, experts will untangle the legal issues in this area and provide practical guidance to employer and union representatives who must respond to disability-related misconduct.

Work through realistic scenarios with the guidance of seasoned experts, and gain the skills and knowledge necessary to:

  • Recognize behaviours or warning signs that will give rise to the duty to inquire.
  • Understand competing approaches for dealing with disability-related misconduct.
  • Differentiate between culpable and non-culpable conduct for the purposes of assessing discipline and providing accommodation.
  • Assess whether medical evidence establishes or refutes a connection between an employee's misconduct and disability.
  • Determine whether accommodation would result in undue hardship.
  • Evaluate the role of last chance agreements in establishing undue hardship.

VIEW THE WORKSHOP AGENDA



CPD


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