Tough Issues Facing Labour Boards: Statutory freeze questions, health and safety claims, rogue employer remedies, and more

The task of labour boards, encouraging “co-operative participation of employers and trade unions in resolving workplace issues,” is not an easy one at the best of times. Particular problems, however, such as determining what constitutes “business as usual” for a dynamic business responding to ever-changing economic conditions, are particularly complex and difficult to resolve. In this session, leading labour lawyers and a seasoned labour board adjudicator will discuss these issues and provide tips on how adjudicators are handling complex issues at the labour board.

• Statutory freezes: How do labour boards determine what constitutes “business as usual” in a new economy that demands businesses respond rapidly to economic developments and in which employment is routinely defined by insecurity and fluctuating terms and conditions? Can employers deviate from business as usual when exceptional unanticipated economic changes occur? What types of evidence are most helpful to union counsel and employer counsel in statutory freeze cases?
• Bad faith bargaining/Rogue employers: Has the number of bad faith bargaining complaints coming before labour boards increased recently? What are the challenging aspects of bad faith bargaining complaints for labour boards? For counsel? Are labour boards fashioning remedies that effectively repair the harm done by bad faith bargaining? Are the remedies available to labour boards adequate when responding to “rogue employers,” or do labour boards need the power to award punitive damages to deter egregious employer behaviour and disregard for Canadian labour law?
• Beyond labour relations: What jurisdiction do boards across Canada have regarding employment standards, health and safety, and human rights issues? Are boards with more limited jurisdiction likely to see their jurisdiction expanded anytime soon? Is a blurring of boundaries between the jurisdiction of the human rights tribunal and the labour board likely to occur in Ontario when the current government’s proposal to expand health and safety legislation to deal with sexual harassment comes into effect? What have been the primary sources of contention and confusion regarding the Ontario board’s handling of reprisal complaints under anti-harassment and anti-violence amendments to Ontario’s Occupational Health and Safety Act? Has the board now adopted a standard approach to these claims? What unique issues has the B.C. board faced recently in exercising its jurisdiction to review arbitral awards?