Lancaster House offers Customized Training to perfectly meet your organization’s learning needs. We can adapt our pre-designed programs for your workplace or create an entirely new curriculum. First, we’ll consult with you to gain an in-depth understanding of your training requirements. Then, we’ll collaborate with you to shape a program that fulfills your objectives, and we’ll deliver it in a way that works for your organization.
Why Choose Customized Training?
- Real-world examples and exercises tailor made for your sector or organization
- Combine staff training with designing and updating your organization’s policies and collective agreement provisions
- Train all levels of staff at the same time, in a confidential setting
- On-site option reduces travel costs and time away from the office
- Greater control over venue, content, delivery style and expert instructors
- Need to meet a deadline? We’ll work within your time frame
- Foundational or advanced? Half-day or multi-day sessions? It’s all up to you
Why Choose Lancaster House?
- Canada’s leading provider of training, information and analysis on labour, human rights and employment law
- Engaging and experienced facilitators (leading union and/or management lawyers, arbitrators, and subject matter experts)
- Course package includes case summaries and analysis that unpack lessons in new decisions
- Tip sheets, roadmaps and interactive exercises that reinforce knowledge in practical ways
- Participants will rely on Lancaster’s supporting materials long after training sessions conclude
- CPD certificates
E-mail Christine Winiker or call (416) 977-6618 for more information. We can help to tailor a Customized Training package for you.
How to accommodate employees with complex mental and physical disabilities is a critical issue in the modern workplace. Both unions and employers must be equipped to navigate the issues arising out of the duty to accommodate. In this in-depth training session, experts will take participants through a step-by-step tutorial designed to enable workplace parties to respond to requests for accommodation in a timely, consistent and effective manner.
Accommodating Employees with Episodic Disabilities: A guide to dealing with recurring health conditions
Some of the most prevalent disabilities in Canada, including mental illness, arthritis, HIV, and some types of cancer, can be characterized as episodic disabilities, which are defined as disabilities involving periods of good health alternating with periods of illness or disability. The accommodation of employees with episodic disabilities presents special challenges, such as maintaining contact between an employer and employee during prolonged absences and determining when it’s appropriate for an employee to work and when it’s appropriate for an employee to take time off. Attendees at this workshop will learn strategies for accommodating employees with episodic disabilities that comply with the requirements of human rights legislation.
Participants will leave the session with the knowledge and skills necessary to:
- Appreciate the difference between the challenges faced by employees with episodic disabilities and those faced by employees who have non-recurring disabilities.
- Identify insurance options and arrangements with insurance companies for the support of employees with episodic disabilities.
- Approach employees about the possible need for accommodation in a helpful, non-threatening way.
- Establish and maintain effective communication regarding changing accommodation needs.
- Support and accommodate employees with episodic disabilities.
Attendance management programs have become increasingly common in workplaces across Canada. The goal of these programs is to reduce absenteeism, but some absences are unavoidable, especially for employees with disabilities. In this in-depth training session, participants will master how to balance the objectives of attendance management programs with the legal duty to accommodate employees with disabilities.
This session will equip participants with the knowledge and skills necessary to:
- Craft effective sick leave and attendance management policies that comply with human rights and privacy law
- Identify the point at which the duty to accommodate ends because undue hardship results from disability-related absenteeism
- Make appropriate inquiries into an employee’s health when a disability has not been disclosed
- Communicate effectively during attendance management meetings while ensuring fairness to employees involved in an attendance management program
During the session participants will practise applying skills and knowledge to matters related to attendance management and receive feedback from experts.
In a 12-month period, one-in-five Canadian adults will develop a serious mental health problem, and mental health problems are rated as one of the top three drivers of both short- and long-term disability claims by more than 80% of Canadian employers. Managers, supervisors, union representatives and other labour relations professionals will leave this session prepared to promote mental well-being in the workplace, support employees who are mentally unwell, and fulfil the legal obligation to accommodate employees experiencing mental health problems.
You should attend this session if you want to:
- Understand the medical/psychological concepts of mental health, mental illness, and substance dependence, as well as the legal concept of mental disability.
- Better understand stigma and know how to combat it.
- Approach employees about their mental health in a helpful, non-threatening way.
- Support and accommodate employees with mental health disabilities.
- Develop effective, legally-compliant accommodation and return-to-work plans.
Impairment, Drug Testing, Fitness for Work, Safety
The impending 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 ensuring employee rights.
- Identify aspects of “Standardized Field Sobriety Tests” (SFST) 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.
Drug and alcohol testing in the workplace has long been a contentious issue, impacting employee privacy rights and employers’ need to maintain a safe workplace. It also raises a host of practical questions – how reliable are different forms of testing? When does off the job, recreational drug use pose a danger in a safety-sensitive workplace? In this session, Lancaster’s experts will demystify workplace drug and alcohol use, and provide a step-by-step guide to responding when an employee tests positive. Topics to be discussed include:
- Understanding diagnoses and treatment: What are the diagnostic criteria for substance use disorder? Is it always experienced as a chronic, progressive and/or relapsing disorder? Is prolonged specialist treatment and medical monitoring appropriate for all employees with substance use disorders? Is non-abstinent recovery possible? How effective are inpatient and outpatient rehabilitation programs in promoting lasting recovery?
- Demystifying drugs and alcohol in the workplace: What is the workplace impact of off the job substance abuse? Are there lasting effects from recreational drug use, such as marijuana?
- Recognizing and inquiring about substance use disorders: What job performance and workplace behaviours may be warning signs of a potential substance abuse or dependency issue? What are some best practices for approaching an employee who appears to be struggling with a substance use disorder?
- Exploring the science and limits of testing: Does alcohol testing stand on a different footing than drug testing? Why? Can drug and alcohol testing technology provide an immediate detection of impairment? What technology is usually used for drug tests? How reliable is urinalysis? Are hair or saliva tests less invasive or more effective alternatives to urinalysis?
- Managing safety risks: What is the best way to manage safety risks arising from the use or abuse of drugs and alcohol at work? Is drug testing an effective way to control such risks? What other measures, training, policies or programs might be more effective?
- Reviewing the law on drug and alcohol testing: What is the legal status of random drug and alcohol testing in the wake of the Supreme Court’s 2013 ruling in the Irving Pulp & Paper case? What kind of evidence is required to show a workplace problem with alcohol or drugs which could warrant random testing? When can drug testing be done as a condition of employment, promotion, or transfer? Can a third-party site owner require drug or alcohol testing as a precondition for allowing workers employed by contractors or sub-contractors on site? What constitutes reasonable cause for testing? In what circumstances will post-incident testing be justified? Is an accident or “near miss” enough, or must there also be some reason to believe that drugs or alcohol were a factor? When will testing be justified in a return-to-work situation?
- Responding to positive test results, accommodating employees with disabilities: What steps should be taken by the employer and union when an employee tests positive for drugs or alcohol following a workplace accident? What about when an employee fails a random drug or alcohol test? Should the employee be suspended automatically? If so, should this be with or without pay? Should an employee who tests positive for drugs or alcohol be required to attend a rehabilitation program? What if the employee denies having a substance use disorder? Can employees rely on claims that testing and related measures amount to disability-based discrimination, in order to challenge drug and alcohol policies? What should be done if an employee refuses to submit to random or post-incident drug/alcohol testing?
Recent news headlines highlight the prevalence of medicinal and recreational drug use in Canada. This trend, in conjunction with the federal government’s pledge to legalize the use of marijuana for recreational purposes, has prompted many workplace parties to re-examine their approach to prescription and recreational drug use at work. In this workshop, medical and legal experts will discuss best practices for managing the safety risks of marijuana, opioids and other drugs in the workplace while still respecting employee privacy and human rights. Workshop speakers will lead a practical discussion and interactive exercises on a range of issues relating to this topic, including:
- Demystifying prescription drug use in the workplace: What are some of the common misperceptions surrounding the use of prescription drugs in the workplace? Does the medicinal use of marijuana and other drugs necessarily result in impairment at work? What else can cause impairment in the workplace? Fatigue? Chronic pain?
- Disclosure: In what circumstances, if any, are employees required to disclose their use of medical marijuana and other prescription drugs to their employer? Can employees be required to disclose recreational use of marijuana or other drugs?
- Drug use and the duty to accommodate: How does the duty to accommodate under Canadian human rights legislation apply in the context of an employee with a prescription for marijuana or other drugs? Does a medical prescription entitle an employee to be impaired at work? What type of medical information should be requested to determine whether an employee can safely and effectively perform his or her job? How does the duty to accommodate apply to employees with suspected or confirmed substance use disorders? What are some best practices for managing safety risks when substance abuse is suspected?
- Impairment testing: What tests are available for employers to measure actual current impairment in the workplace? What advantages does competency-based testing have over traditional drug testing? What possible privacy and/or human rights concerns are raised by impairment testing in the workplace?
- Reviewing the law on traditional drug testing: What is the legal status of random drug testing in the wake of the Supreme Court’s 2013 ruling in the Irving Pulp & Paper case? Has any random drug testing policy been found reasonable in Canada post-Irving? In what circumstances will for-cause or post-incident drug testing be permitted? When will testing be justified in a return-to-work situation?
- Responding to test refusals and positive test results: What steps should be taken by the employer and union when an employee fails a for-cause, post-incident or random drug test? What about when an employee fails a competency-based test? What should be done if an employee refuses to submit to random, for-cause or post-incident drug testing, or to competency-based testing?
- Drafting workplace policies: What elements should be included in a workplace policy dealing with the use of prescription drugs? What about the use of recreational drugs? How should impairment-based testing or traditional drug testing be treated in workplace policies? In what circumstances, if any, are zero-tolerance policies permissible?
Handling Medical Information
Medical reports and health care records contain highly personal, sensitive information. As a result, a request for medical information from an employee raises a host of privacy and human rights concerns. Nevertheless, employers and unions are often required to handle employees’ personal health information in order to facilitate accommodation, sick leave, and/or disability benefits. In these instances, it is crucial for workplace parties to strike an appropriate balance between obtaining the required information and respecting employee privacy.
Working through interactive exercises and realistic scenarios with the guidance of experienced counsel and medical experts, participants will gain the skills and knowledge to:
- Craft effective requests for medical information that comply with human rights and privacy law
- Understand health records and respond appropriately to vague or deficient medical reports
- Identify when medical information from a specialist, psychologist, or psychiatrist is required for the purposes of sick leave, accommodation, or disability benefits
- Comply with federal and provincial privacy legislation and protect confidential medical information in the workplace
- Avoid wasted time litigating over the collection, storage, and disclosure of medical information
- Use medical evidence effectively in the grievance and arbitration process
Bullying, Harassment, and High-Conflict Behaviour
Specifically, the roundtable stressed the need for management and union representatives to develop emotional intelligence and interpersonal skills in order to respond to workplace conflicts. Responding to that need, this workshop teaches you and your staff the key interpersonal skills required for creating a psychologically safe workplace. Besides providing a clear understanding of the parties’ legal obligations, it teaches the skills needed to intervene in and prevent workplace bullying.
Dealing with Difficult People: Bullying bosses, sensitive employees, and other challenging personalities
Work doesn’t always bring out the best in people. Whether it’s a demanding boss, hostile colleague, or overly sensitive employee, there are many personalities that can cause friction, and few workplaces escape without having at least one “character.” But at what point does a prickly personality cross the line into harassment or bullying? Are there any behaviours that should raise suspicions of an underlying mental disability? When will a disciplinary response be appropriate? How can unions defend the difficult worker, while at the same time protecting members who are adversely affected by the behaviour? In this interactive workshop, an experienced psychologist, arbitrator, and legal counsel will lead participants through realistic scenarios, providing them with the knowledge necessary to:
- Identify the “personalities” or patterns of behaviour that consistently create problems in the workplace.
- Determine when behaviours maladapted to the workplace meet the definition of a “mental disability” triggering the duty to accommodate under human rights legislation.
- Reconcile the union’s role in defending the difficult worker with its obligations towards members who are adversely affected by the behaviour.
- Distinguish between bullying behaviour and legitimate performance management.
- Effectively communicate with persons exhibiting difficult behaviours.
Employers, employees, and unions each have an important role to play in the investigative process to ensure that it is thorough, balanced, and effective. What procedural protections should be put into place to protect complainants, respondents, and co-workers? When should an external investigator be retained? How extensive should the evidence-gathering process be? Who is entitled to receive a copy of the investigation report? Join Lancaster’s experts for a comprehensive workshop that will provide step-by-step guidance on key issues in the investigative process. Topics to be addressed include:
- Conducting a fair and effective investigation: What are the essential elements of a workplace investigation? Who should conduct the investigation? When should an external investigator or subject-matter expert be retained? How can employers and unions minimize issues of bias and pre-judgment in the investigative process? What confidentiality provisions should be put in place to protect the complainant and the employee subject to investigation? When is it appropriate to remove an employee from the workplace pending an investigation? Should such suspensions or removals be with pay, or without? Can an employee be disciplined for refusing to answer the employer’s questions during an investigation? What timelines should govern an investigation? What liability may an employer or union face if they fail to conduct an investigation or conduct it improperly?
- Choosing the right framework: What legal frameworks should employers and unions look to when conducting investigations into allegations of harassment, violence, or psychological harm? Health and safety law? Human rights law? How does the new National Standard of Canada for Psychological Health and Safety in the Workplace apply in the context of such cases? What protections in collective agreements may be relevant in such cases?
- Involving the union: What role should a union take in an investigation? Does this differ depending on the type of investigation – i.e., health and safety violation, accident, incident of harassment or violence? Is the union’s role limited to representation, or does it have a joint role/responsibility in ensuring the investigation is properly carried out? Should the union conduct a parallel investigation? Is union involvement and/or representation necessary whenever an employee is involved in an investigation, as opposed to a disciplinary proceeding? Can a union representative advise an employee not to answer certain questions or advise the employee how to answer certain questions? What are the consequences of failing to ensure or allow the presence of a union advisor?
- Gathering evidence: What types of electronic surveillance and searches can an employer conduct as part of the investigation? Can investigators gain access to an employee’s cell phone logs, web-surfing history, or email account? Can they investigate an employee’s off-duty conduct on their social media accounts? Can employers use video surveillance as part of their investigations? If so, under what circumstances can surveillance be conducted? How should the credibility of documentary or in-person evidence be assessed? What safeguards should be put into place to ensure that evidence and witness statements are reliable? When should an investigation be discontinued for lack of evidence?
- Disclosing and relying on the investigative report: Who is entitled to the investigation report, investigator’s notes and other documents relied upon in the investigation? Which portions of the investigation report should be disclosed and which should be withheld based on privilege? Can an employer rely on a third-party investigation report as the basis for imposing discipline?
- Investigating sexual harassment: What unique considerations should workplace parties bear in mind when conducting investigations in relation to sexual harassment or assault allegations? Should employees be encouraged to report allegations to police? If there is a parallel criminal investigation, how should this factor into the workplace investigation?
- Investigating drug or alcohol-related incidents: When is an employer entitled to ask that an employee submit to a drug or alcohol test in the course of investigating an accident or incident? Is an accident or “near miss” a sufficient reason to make a request, or must there also be some reason to believe that drugs or alcohol were a factor?
In this in-depth training session, experts will lead participants in discussions and exercises designed to provide the knowledge and skills necessary for workplace parties to investigate and respond to bullying and harassment effectively and in a way that meets their legal obligations.
Participants will work through scenarios based on real-life situations involving harassment or bullying. Experienced management and union representatives and investigators will assist participants and provide tips on best practices.
Participants will leave the course with the skills necessary to:
- Identify workplace bullying and harassment and recognize the warning signs
- Investigate and respond to allegations
- Protect complainants and witnesses while safeguarding the rights of the accused
- Remedy poisoned work environments
- Create an organizational culture of respect and safety
By working through scenarios with the guidance of experienced lawyers and investigators, union and management representatives will learn the essentials in dealing effectively with workplace bullying and harassment.
Where there is an accident or an allegation of harm by one employee against another, the employer must take action. However, it may not be immediately clear what type of investigation is necessary. Has there been a violation of the Occupational Health and Safety Act? The Human Rights Code? Health and safety provisions in the collective agreement? Different types of investigations may require different responses in regard to interviews, union involvement and expert assistance. Join us as Lancaster’s experienced workshop leaders discuss the challenges of conducting a fair and thorough investigation. Topics to be addressed include:
- Assessing the type of investigation needed: After an incident has occurred, what steps should employers and unions take to determine what type of investigation is appropriate, such as a harassment, violence, human rights violation or occupational health and safety investigation? What steps should be taken where an investigation involves more than one of these issues? What legislation governs the necessary elements of each type of investigation? What liability may an employer or union face if they fail to conduct an investigation or conduct it improperly?
- Procedural protections: What protections should be put into place to ensure the fair treatment of employees being investigated, victims and co-workers? What steps should employers take to maintain the confidentiality of employees subject to investigation? How should the employer and union protect against reprisals? When will an investigation require an external investigator or subject-matter expert to provide assistance? Should employees be removed from the workplace pending the results of the investigation? What timelines should govern an investigation? When is union representation required?
- Privacy concerns: Can an investigator gain access to an employee’s cell phone records, web history or email account as a part of an investigation? Can an investigator look into an employee’s off-duty use of social media? When can an investigator use video surveillance as part of an investigation?
- Investigation reports: Who is entitled to access the final report, as well as investigation statements or other documents which form part of the investigation record? Are investigation reports protected by any type of privilege? What use can be made of investigation reports in subsequent arbitration or tribunal proceedings?
Discipline and Discharge
Dealing with Discharge and Discipline: Progressive discipline, mitigating and aggravating factors, disability-related issues, union representation, post-discharge rehabilitation
A workplace disciplinary system should be fair, impartial and proportionate. In this workshop Lancaster’s experts will provide guidance on establishing and implementing just and effective responses to misconduct. They will highlight good practices in drafting policies and address the relevant factors to be considered in determining appropriate discipline, among other issues. Questions to be discussed include:
- Progressive discipline and zero-tolerance policies: What are the key elements of progressive discipline? Does a progressive discipline policy need to be included in the collective agreement to be required? What are the consequences of failing to apply progressive discipline? What kinds of offences are so egregious that a zero-tolerance approach is justified – Dishonesty? Theft? Violence? Health and safety violations? Alcohol or drug use? How do arbitrators treat “zero tolerance” or automatic termination policies?
- Mitigating factors: To what degree do the following considerations mitigate the misconduct and support a lesser penalty: Seniority? A dire financial situation? The lack of a prior disciplinary record? Admission of guilt? Acceptance of responsibility? Candour? Remorse?
- Aggravating factors: What factors will call for a more serious penalty or discharge: a prior history of misconduct? A short employment history? Misconduct which involves dishonesty or a breach of trust? Misconduct in which the employee benefited financially? How will an employee’s lack of remorse or unwillingness to accept responsibility affect an arbitrator’s response to discharge? Is a lack of candour by an employee in the investigation or arbitration process a factor which should be considered in imposing discipline?
- The impact of disability: If an employee’s serious misconduct is caused by a disability, how should the employer respond? When will termination of such an employee be warranted? How should the “hybrid approach,” which distinguishes between culpable and non-culpable factors, be applied when determining whether discipline is appropriate?
- Representation during the discipline process: Does an employee’s right to have a representative present at a meeting depend on whether the meeting is investigatory or disciplinary? Is an employee entitled to choose a particular union representative? Will the disciplinary action be void if the employee’s right to representation was not respected?
- Post-discharge evidence: When will an arbitrator consider medical evidence obtained after termination which shows that an employee was suffering from a disability at the time of discharge? When will post-discharge evidence of rehabilitation or recovery be admitted?
While it can be difficult for workplace parties to identify and implement suitable accommodations for a disabled employee at the best of times, the issue becomes even more challenging when the disability contributes to misconduct. Should an employee with a substance use disorder be disciplined following a workplace incident, or will accommodations be required? What if an employee’s psychological condition causes disruption in the workplace, or the employee threatens or harasses others? How can employers and unions address the employee’s behaviour while at the same time meeting their obligations to others who are entitled to a safe workplace? This interactive workshop will explore a range of 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
- Identify suitable accommodations for disabilities that might give rise to misconduct
- Determine whether an accommodative measure constitutes an undue hardship
- Evaluate the role of last chance agreements in establishing undue hardship
- Understand how to apply the hybrid approach in order to differentiate between culpable and non-culpable conduct
Grievance Arbitration and Mediation
Taking a grievance through the grievance procedure should be about more than “going through the motions.” The procedure should provide parties with a real opportunity to resolve the issue. In this workshop, experts will provide guidance for designing an effective grievance process and making the most of that process. They will also provide attendees with opportunities to practise dispute resolution skills. Topics to be covered include the following:
- Prevent grievances from arising: What types of management styles, attitudes, structures, and policies are associated with higher grievance rates? What types of union rules, organizational structures, and leadership styles are associated with higher grievance rates? What changes in attitudes, structures, polices, etc., can management and unions make to reduce grievance rates? What can be done to cultivate the type of union-management relationships associated with lower grievance rates? What should parties do to enable union-management committees to effectively resolve workplace issues outside of the grievance procedure and to prevent small problems from becoming big problems?
- Design an effective grievance process: What are the elements of a grievance process that effectively support the resolution of grievances before they reach arbitration? Do the number of steps in the process matter? Do time limits matter? Who should be required to be involved at each step of the grievance procedure? If parties are open to alternative dispute resolution (ADR) mechanisms (for example, mediation or restorative justice approaches), at what stage in the process should those mechanisms be incorporated? What types of ADR mechanisms have parties used successfully in grievance procedures?
- Process and investigate grievances: What should union stewards do to maximize the chances of resolving the issue before submitting a formal written grievance? What should management representatives do at these initial informal stages to maximize the chances of resolving the issue? What steps should union stewards take to investigate a grievance? How should management representatives investigate a grievance once it is brought to their attention?
- Participate in productive grievance meetings: What legal principles should union and management representatives keep in mind when conducting grievance meetings? What should union and management representatives do to prepare for a formal grievance meeting? What about during and after the meeting? How should the meeting be conducted?
- Make arbitration as painless as possible: What type of analysis should each side conduct in order to determine whether a matter is worth taking to arbitration? How should parties apply the principle of “proportionality” to arbitration? What can union and management representatives do in the steps leading up to arbitration to ensure that the case they give their lawyer (or other union representative) is as strong as possible? How can parties design more efficient arbitration procedures? Do the procedures for arbitration in the rail industry provide a model for more efficient arbitration? What are some options for expedited arbitration, and how are they best used? When should parties consider med-arb, and when is mediation a waste of time?
This workshop will provide participants with the knowledge and skillset required to conduct a grievance arbitration case or give maximum assistance to counsel/advocates who are doing so. A seasoned arbitrator and top union and employer counsel will lead participants in exploring best practices and developing strategies relating to grievance arbitration advocacy. Participants will also have the opportunity to hone their advocacy skills by working through simulation exercises in small groups, while receiving invaluable guidance and feedback from workshop leaders.
Participants will practice the following skills:
- Identifying the key issues, strengths and weaknesses of a case
- Making persuasive opening and closing statements
- Preparing, examining and cross-examining witnesses
- Effectively gathering and presenting evidence and caselaw
The Art of Negotiation
Successful negotiations require skill and strategy. Join Lancaster’s experts for a practical workshop on effective bargaining tactics in negotiations and mediation. Topics to be addressed include:
- Setting the agenda, obtaining a mandate, preparing for bargaining: What needs to be done to establish a reporting relationship, secure a mandate, and create realistic expectations? What must you do to develop your agenda, set the ground rules, and devise a game plan? What information should you collect relating to comparability, demonstrated need, ability to pay, and total compensation? How should demands be categorized or prioritized? Should you always include demands that are giveaways for leverage? How does bargaining in the public sector differ from bargaining in the private sector?
- Mapping out strategies, settling on tactics: How do you determine whether to begin negotiations with extreme or moderate demands? Should you begin with monetary or non-monetary demands? How do you anticipate the number of moves, or rounds of bargaining, and how should this factor in to your opening proposal? How should you present your proposals and respond to counter-proposals? How do you build momentum? What is meant by bargaining backwards? How should parties signal their positions? When should a party present its bottom line position? What should you do to develop trust? How can you avoid bad faith bargaining and stop it when it occurs? Can the parties tape negotiating sessions? Should parties set dates for arbitration and bargain to a deadline, or does this hinder negotiations?
- Communicating in a wired world: What should you communicate to principals and employees or members during negotiations and mediation? What should you communicate to the public? Should mediation be confidential? What role does social media and/or mainstream media play? In what circumstances, if any, should employers communicate directly with employees? How can positions be communicated in a way that avoids an emotional response?
- Making the most of mediation: What issues are particularly well-suited to mediation? What should be considered when selecting a mediator? How should parties prepare for mediation? Should the mediator be advised of the negotiating history? How should mediation tactics differ if parties are engaging in med/arb?
- Making the deal: How do you achieve a win-win outcome? What can you do to use leverage and devise approaches to bridge an impasse? What does it mean to confront your alternatives? How can you use the mediator to close the deal? When should you threaten strike or lockout? When is it appropriate to suggest arbitration? Should you draft language in advance? When is a settlement within the reasonable range? Should you sign a memorandum of settlement as soon as it is agreed upon or leave time for reflection?
Preparing for Interest Arbitration: Choosing the arbitrator, drafting the brief, presenting the case
Join our expert workshop leaders as they conduct an advanced session on planning and presenting a persuasive interest arbitration case. Attendees will hear about tactics and strategies that work, as well as pitfalls to avoid. Topics covered in this interactive workshop include:
- Marshalling the information: What do you need to know before the hearing? What financial information should the employer and union present to the arbitrator? How can the costing of wages, benefits and other issues be done effectively? What are the advantages and disadvantages of using computer software in costing? What tools are available and which are recommended? What should be kept in mind when constructing costing spreadsheets? What sort of external economic, political or social factors should the parties consider when establishing their positions? What sort internal factors, particular to the enterprise, should they take into account? How can the parties best utilize information about settlement agreements and awards in comparable enterprises, and in other industries or sectors? How much weight do unratified settlements carry at interest arbitration?
- Choosing an arbitrator: What factors should each side consider when selecting arbitrators and nominees? When is a single arbitrator appropriate? When is a tripartite arbitration panel preferable? What degree of impartiality is expected of arbitration board members? What level of impartiality is expected of nominees?
- Meeting in mediation: How will the dynamics of negotiations change when the parties are required to proceed to interest arbitration rather than strike or lockout? If one party conceded too much during negotiations, is there concern that there will be too little left for the arbitrator to accommodate both sides? Does it matter whether the parties engage in med-arb or arbitration to address the remaining unresolved issues? How can the parties best minimize the issues in contention and streamline the mediation and arbitration procedure? When should ground rules be set and which ground rules may the parties wish to establish? How should the mediation be structured, in terms of timing of proposals and counter-proposals, signing off agree-to items, stipulating for without prejudice discussion, etc.? Can a party in mediation refer to the opposite party’s positions during negotiations or is this evidence shielded by privilege? Should you carry on in mediation where you left off in bargaining or start afresh? Where packages have been exchanged during direct bargaining, can a party accept certain parts of a package and bargain from that point? When should a party present its bottom-line position? How can differences best be reconciled? What should be communicated to principals and members during the mediation process? To the public? How often should this communication occur? What parts of the mediation process, if any, can be made public during bargaining? Can mediation sessions be tape-recorded by the parties?
- Preparing the brief: How should the brief be structured? What should go in and what should be left out? What is the relative importance of replication, comparability, demonstrated need, bargaining history, economic conditions, ability to pay, total compensation? Should you anticipate the opposite party’s reply in drafting your brief?
- Presenting at the arbitration hearing: How should each side present their case? What evidence is most persuasive? When is oral evidence required? Are rules of procedural fairness violated when interest arbitration boards gather evidence on their own motion? What are effective strategies for communicating fallback and bottom-line positions? Can post-hearing developments, such as settlements or awards, be reported to the arbitrator or the board? Can an arbitrator take into account the behavior of the parties during negotiations and mediation and whether one side or the other has displayed bad faith?
- Judicial review: On what grounds is an interest arbitration award subject to judicial review in the courts? When have applications for judicial review been successful? When are reasons required, and of what kind?
Seasoned negotiators from both sides of the table will review examples of successful and unsuccessful essential services negotiations, pointing out the key features of each, and identifying strategies for increasing the odds of successfully concluding an essential services agreement. Issues to be addressed include:
- Is the task of identifying “essential services” primarily a legal one or a practical one? That is, should parties be more concerned with legal justification of their positions, or with presenting evidence that shows how their decisions preserve public health and safety?
- When should parties negotiate an essential services agreement (e.g. before the collective agreement expires, when negotiations for a collective agreement reach an impasse, etc.)? Should the same people be responsible for negotiating both the essential services agreement and the collective agreement?
- Is there a preferred process to follow? For example, does it matter who makes the first proposal? Should the first proposal concentrate only on reaching a “framework agreement”? If so, what should be in a framework agreement?
- How can parties make the most effective use of the umpire they choose?
- How careful should parties be in negotiating their first essential services agreements? Will they later be bound by decisions regarding which services are essential and what level of services are essential?
- What factors are relevant to determining the type, scope, and level of services that are essential? What type of information or studies might be necessary to determine the nature and level of essential services necessary to prevent a risk to public safety? Should unions and employers jointly undertake to obtain such information/conduct such studies?
- How can parties negotiate an essential services agreement that effectively takes into account the fact that some non-essential services may become essential if they are not provided for an extended period of time? In the words of the Alberta legislation, how do parties take into account “foreseeable changes to the essential services that need to be maintained during a strike or lockout”?
- How should parties determine how essential services should be provided? How should they gauge the degree to which non-bargaining unit members can meet the need for an essential service?
- What are the most frequently-encountered obstacles to successfully concluding an essential services agreement? What strategies can parties use to overcome these obstacles?
- Are there any essential services agreements in Alberta now or in recent history that parties might use as a precedent?
A clearly written collective agreement makes it easier for management, union representatives, and workers to understand their rights and obligations. Poorly written clauses can become the subject of disputes and costly arbitration. This hands-on training session is designed to provide bargaining committee members, labour lawyers, human resources professionals, and other labour relations professionals with the skills and knowledge necessary to:
- Interpret collective agreement language using rules of construction accepted by arbitrators.
- Recognize ambiguous provisions.
- Understand the concept of “estoppel”.
- Develop a process for negotiating clear contract language.
- Make existing contract language clear to managers, supervisors, union stewards, and employees “on the shop floor.”
- Identify common words, phrases, and stylistic problems that make contracts unclear.
- Modernize the structure and format of contracts.
Health and Safety: Making It Work
The right to refuse unsafe work, without fear of reprisal, is one of the most fundamental employee rights under occupational health and safety legislation. Through discussions and interactive scenarios, Lancaster’s experts will clarify the roles and responsibilities of employees, employers, unions, and health and safety inspectors when a refusal occurs. Topics to be addressed include:
- Understanding who can refuse work and assessing “danger”: Which workers are subject to statutory limits on their right to refuse work? What is the nature of these restrictions? Where statutes limit the right to refuse dangerous work that is inherent in a job or a normal condition of employment, who decides whether the danger is inherent or a normal condition? Is a Ministry inspector obligated to investigate such complaints? May supervisors refuse unsafe work? What type of danger must be present to trigger an employee’s right to refuse unsafe work? Must the danger be immediate? What degree of likelihood that a work condition will lead to injury is required to justify a work refusal? How have recent amendments to the Canada Labour Code changed the definition of danger for federally-regulated workplaces?
- Following proper investigatory procedures: What are the investigative steps mandated by provincial and federal legislation? Who should participate in the employer’s initial investigation? At what point should an employee health and safety representative become involved? In workplaces that have a joint health and safety committee, is there a requirement that investigations be conducted jointly with the committee? What are some best practices to implement, and common pitfalls to avoid, in investigating work refusals? What type of evidence should be collected and how? If interviews are required, who is entitled to attend? Can/should a refusing worker be offered alternative work while the investigation is ongoing? Can refused work be offered to another worker pending the outcome of the investigation?
- Clarifying the powers of Ministry inspectors: What powers are given to provincial and federal inspectors investigating work refusals? What interim measures can an inspector order? Can these be appealed?
- Assessing the legitimacy of refusals: When will harassment or abusive behaviour by co-workers or customers be found to constitute a “danger” for the purposes of occupational health and safety legislation? Can stress constitute a hazardous condition? How can legitimate work refusals be distinguished from situations in which workers use refusals as an illegal strike? If an employer considers a refusal to be a continuation of a previous refusal in which no danger was found, must it still conduct an investigation?
- Avoiding reprisals: What protection is provided to an employee who may be a victim of reprisal? How clearly must an employee express concern about a health and safety issue in order to engage the statutory protection from reprisal? Will a board ever impute to an employer knowledge of an employee’s health and safety concerns? Can being snubbed by management constitute a reprisal within the meaning of legislation? Can the threat of discipline not actually imposed constitute an illegal reprisal for refusal to work?
- Considering procedural issues: When will a board exercise its discretion to inquire into a complaint of reprisal? When will a board defer consideration of a reprisal complaint on the basis it would be more appropriately dealt with in another forum, such as in a proceeding under the Human Rights Code or through the grievance process?
Planning Ahead: Developing a comprehensive program to deal with psychological risks in your workplace
This workshop focuses on practical strategies to fix poisoned workplaces and protect workers’ mental health. Participants will begin by examining, with the assistance of experts, the legal obligations with which the parties must now comply, the National Standard of Canada for Psychological Health and Safety in the Workplace, and the key elements of policies and best practices for preventing and reducing the incidence of physical and psychological harm in the workplace. Participants will also explore in detail, under the guidance of workshop leaders, the approaches which employers and unions can take to remedy these problems. This discussion will address a number of questions, including the following:
- Legal obligations to prevent psychological harm in the workplace: What legal obligations, policies, or standards exist in Ontario requiring employers to ensure a psychologically safe work environment? What obligations does Ontario’s OHSA (Bill 168) impose on employers to protect employees from psychological and physical risks arising from violence and harassment? What obligations exist under human rights legislation?
- The National Standard of Canada for Psychological Health and Safety in the Workplace: What is The National Standard of Canada for Psychological Health and Safety in the Workplace and what is its status (e.g. is it a legal document, a best-practice policy, etc.)? What role does the Standard play in the legal obligations of employers and unions to secure a psychologically healthy and safe workplace? What are the key elements of the Standard? What steps does it require organizations to take to ensure a psychologically safe workplace?
- Identifying Hazards: What is the employer’s obligation to identify psychological risks in the workplace, including conducting assessments of workplace hazards and workplace risks to psychological safety? What are common hazards to psychological safety in the workplace? How can employers and unions work together to identify risks to psychological safety? How can managers and union representatives work together to identify and reduce workplace situations which can cause psychological harm, whether arising from incidents of harassment, violence, or bullying, or from other stressful conditions in the workplace?
- Planning and Prevention – minimizing hazards and liability: What can employers do to reduce/eliminate psychosocial hazards in the workplace and to lessen their potential legal liability? What can unions do to reduce psychological health and safety hazards in the workplace? What policies, practices, and programs might be implemented to support and promote a psychologically safe workplace, which is free from harassment and discrimination? How can the union and the employer work together to develop anti-harassment/bullying policies and programs to ensure a psychologically safe workplace? Are joint strategies effective? What are some examples of effective psychological health and safety policies? Do employers have a legal duty to ensure that the way they manage the workplace does not itself cause employees undue stress or psychological injury? What does this obligation entail?
- Rehabilitation – remedying a poisoned work environment: What is a “poisoned” or “toxic” work environment? What distinguishes a workplace in which some harassment has taken place or some psychologically harmful conduct has occurred, and one which rises to the level of a “poisoned” work environment? What steps should employers take to repair a poisoned workplace? How can managers and union representatives work together to remedy psychologically harmful conditions such as harassment, bullying, violence, or other stressors? What practical steps can employers and unions take to stop workplace bullying and harassment? What is the union’s role? How can unions balance competing interests in cases involving member-on-member violence or harassment? What should employers do to ensure that employees adversely affected by harassment/discrimination are reintegrated successfully into the workplace? When, if ever, is it appropriate to keep harassers in the workplace? What can be done to ensure that such employees do not continue to poison the workplace? What types of education and training are useful to remedy a poisoned work environment?