January 24, 2017

Discussion of arbitration decisions tends to dominate many continuing education events for labour relations professionals, but knowledge of recent labour board decisions is essential for anyone who needs to be up-to-date on labour law in Canada. In this session experienced counsel will review recent important decisions, identify emerging trends in labour board law, and explain the practical implications of these trends and decisions for unions, employers, and their counsel. Topics to be addressed include:

  • “Freedom of expression” issues: Where have recent labour board decisions drawn the line between permissible and impermissible employer communication with employees during bargaining? In what circumstances, if any, is “bargaining through the media” an unfair labour practice? What limits have labour boards placed on employer speech in the context of union certification drives?
  • Labour boards and vulnerable employees: What are the challenges labour boards face when confronted with applications involving bargaining units composed mainly of temporary foreign workers? Are labour boards able to deal adequately with concerns regarding employer intimidation and workers’ lack of awareness regarding their rights? What guidance have labour boards provided to unions attempting to meet their duty to fairly represent members who likely have impairments related to mental health, but who refuse to acknowledge any mental health issues?
  • Bad faith bargaining: What guidance have recent labour board decisions provided regarding what conduct (or lack of conduct) will constitute a failure to bargain in good faith, or to make every reasonable effort to reach a renewal collective agreement? Where are labour boards drawing the line between “hard bargaining” and bargaining in bad faith? Are labour boards making orders that are adequate to remedy bad faith bargaining? Should the remedial power of labour boards in such cases be expanded or curtailed?
  • Statutory freezes: How do labour boards determine what constitutes “business as usual” in a new economy in which the workplace is “fissurized” through supply chains and franchising, and in which employment is characterized by instability and fluctuating terms and conditions? Can employers deviate from business as usual when decisions traditionally associated with management rights are exercised, such as staffing, or unanticipated economic changes occur?
  • Developments in reconsiderations and judicial review: What factors have reviewing courts considered in determining the adequacy of a labour board’s reasons in recent decisions? Are there circumstances in which it is inappropriate for a labour board to issue reasons because doing so would serve no good labour relations purpose or may actually harm the state of labour relations between the parties? What guidance have recent decisions provided as to whether a reasonable apprehension of bias exists? Should reviewing courts act as a “tiebreaker” when labour boards have issued inconsistent decisions on an issue?
  • Comparing jurisdictions: In which areas have labour boards across Canada exhibited marked differences in policy and legal decision-making?