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Labour & 2018 Virtual Round Table www.corporatelivewire.com Round Table: Labour & Employment Law 2018

Introduction & Contents

Labour & Employment Roundtable 2018 features six methods and and the role of the experts from around the world. Highlighted topics unions. Featured countries are: Australia, include: employee retention strategies, termination Canada, Mexico and the United States. process, employment , JamesEditor Drakeford In Chief

6 1. Have there been any recent 19 7. How do employment tribunals regulatory changes or interesting operate in your ? developments? 21 8. Which dispute resolution method 10 2. Can you outline the current labour do you find are most commonly market conditions in your jurisdiction? recommend to employers and why?

12 3. How can employers/employees better 23 9. What legal issues do employers understand their rights? often overlook during a termination process? 14 4. Are there any effective employee retention strategies or best practices 26 10. What is the law for workers for manager-employee relations an compensation in your jurisdiction and organisation can implement? what does it cover?

16 5. What are the employment rights 27 11. What key trends do you expect for those considering taking part in to see over the coming year and in industrial action or strikes? an ideal world what would you like to see implemented or changed? 18 6. In the UK, the public perception of trade unions is that their power has been slowly diminished since the premiership of Margaret Thatcher. What is the current role for trade unions in your jurisdiction both in regards to conflict resolution and workplace relations?

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Meet The Experts

Paula Barran - Barran Liebman LLP Natalie C. MacDonald - MacDonald & Associates T: +1 503-276-2115 T: +1 416-601-2300 E: [email protected] E: [email protected] W: www.barran.com W: www.macdonaldassociates.com Paula Barran, a founding Partner at Barran Liebman LLP, has been practicing labor and employment Natalie is the Owner and Founder of MacDonald & Associates, a boutique specializing law since 1980. She has written extensively on management law and is a national speaker and trainer. in Canadian Employment Law. MacDonald & Associates was formed following the dissolution of In addition to providing employer advice, Paula handles employment litigation in state and federal Natalie’s former firm, which had been in existence for four years, the last two for which it had been , and labor disputes and employment arbitrations. Additionally, she develops and presents selected as one of the top three Employment & firms in Canada, according to Canadian “train the trainer” programs to introduce comprehensive, and cost effective, programs into HR Reporter Readers’ Choice Awards. workplaces. Since the first publication of the Oregon Super Magazine in 2006, Paula has repeatedly been named as a “Top Ten ” in Oregon. In 2008, 2010, and 2017, she was honored as the “Top Point Getter” for the year and Natalie was selected in 2016 and 2017 as one of the leading Labour and Employment Law Practitioners in the World, was honored as the #2 Top Point Getter in 2016. Since 2003, Paula has been ranked #1 (with partners Ed Harnden and according to the 6th and 7th editions of the Expert Guides Women in Law Guide. Lawyers listed in these Guides Rick Liebman) for Labor and Employment Law in the State of Oregon by & Partners USA, America’s are nominated by in-house and peers, and selected through independent research and peer evaluations. Leading Business Lawyers. She is also a fellow of The College of Labor and Employment Lawyers, a fellow of the American Foundation, and has been named in The Best Lawyers in America directory since 1995. She is admitted to practice in Oregon, Washington and before the U.S. Supreme , U.S. Court of Appeals, Ninth Circuit, U.S. District Court, District David Eugenio Puente-Tostado - Sanchez DeVanny Eseverri, S.C. of Oregon and U.S. District Court, Eastern and Western Districts of Washington. T: +52 82 8153 3913 E: [email protected] W: www.sanchezdevanny.com Ines Albuquerque e Castro - F. Castelo Branco & Associados David co-heads the Labor, Social Security, and Immigration practice. He has more than sixteen T: +351 213 587 500 years of experience advising domestic and foreign clients on labor, immigration and social E: [email protected] security matters arising from investments, establishment, daily operations, and mergers or other W: www.fcblegal.com restructurings. He also has extensive experience in collective negotiations and litigation. Before Inês Albuquerque e Castro is a Partner at FCB since 2017, having joined the firm in 2015 as an joining Sánchez Devanny, David practiced law at an firm in Monterrey. He speaks Associate Lawyer. Inês currently coordinates FCB’s Employment, Benefits and Department fluent English and Spanish. and has a degree in Law from the Faculdade de Direito da Universidade de Lisboa. Joydeep Hor - People & Culture Strategies Inês frequently contributes to various legal publications, having written numerous articles on the T: +61 2 80943101 subject of Labour Law in the context of several , namely Portugal, Angola and Mozambique. She is a regular E: [email protected] speaker at conferences, seminars and workshops and has been recognized many by legal guides. W: www.peopleculture.com.au Joydeep Hor is People + Culture Strategies Founder and Managing Principal. He is one of Francois Garneau - Miller Thompson Australia’s most well-known workplace relations lawyers due to his high media profile (both as a T: +1 514 871 5415 sought-after media commentator and prolific keynote speaker including appearing regularly as a E: [email protected] guest commentator on Sky Business Channel) and his representation of several high profile clients W: www.millerthomson.com throughout his . François Garneau practises employment and labour law. His clientele consists of employers from various sectors including pharmaceutical, oil, mining, computer consulting, food products, and While an expert in all areas of workplace relations, Joydeep is one of Australia’s “go to” lawyers for complex and sensitive . François has also acted for Crown including Canada Post, Loto- terminations of employment and also for addressing all aspects of workplace behaviour and culture. Québec, Hydro-Québec, and the Société Générale de Financement. In addition, he represents senior executives in negotiations involving employment termination and provides counsel in the With professional qualifications already as a Fellow of the Australian Institute, Chartered Fellow of the drafting of employment . United Kingdom’s Institute of Personnel and development, a Master of from University of Sydney (where he previously completed a Bachelor of Laws with Honours degree and a Bachelor of Arts majoring in English literature) Joydeep has been accepted into and is currently completing Harvard Business School’s Owner/President Program

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1. Have there been any recent regulatory changes or interesting developments?

MacDonald: One of the most significant developments in the employment law context based on the bad faith in Canadian Employment Law relates to the increase in displayed by Wal-Mart. This was found separate to the extraordinary damages as awarded in the recent case damages he had awarded for moral damages, as he con- of Galea v. Wal-Mart Canada Corp. 2017 ONSC 2045, cluded that the actions of Wal-Mart had surpassed the argued by the author. In that case, Mr. Emery, actions of another employer in Pate v. Galway- awarded $250,000 in moral damages, a head of dam- Cavendish and Harvey (Township) 2013 ONCA 669, ages awarded for the employer’s bad faith conduct in where $450,000 was awarded to an employee who had its manner of , where it is reasonably foresee- been accused by the employer of criminal conduct, yet able that this would cause the employee mental distress. was found completely innocent. The award in Galea is now the highest amount of moral union organisations and all of the administra- however we anticipate the amendments will contain damages ever awarded in Canadian employment law. Tostado: Yes. There was a constitutional reform in tive acts derived thereto. eight new procedures, in addition to legislating the Or- Mr. Justice Emery made this award after reviewing regards to labour justice, which was published in the ganic Laws of the Conciliatory Centres and Decentral- Wal-Mart’s pre and post termination conduct, taking Mexican Official Gazette on 24 February 2017. In sum- • With respect to collective matters, the unions ized Organisms. into consideration several factors, including its litiga- mary, the reform contains the following outstanding will now be obligated to that they have tion misconduct, (pace and process of documentary points: the representation of the employees to present a Hor: In recent years, the national regulatory body, The disclosure); its misleading and dishonest conduct in notice to intent to strike to obtain the signature Fair Ombudsman (“FWO”) has pursued employ- general, and the fact that Wal-Mart cut off her compen- • The formation of labour courts or tribunals, of a agreement. Likewise, ers in relation to a range of compliance issues, particu- sation in the midst of its restrictive covenant with her, now dependent of the Judicial Branch with re- for entitlement conflicts between unions, exe- larly the underpayment of and other minimum despite not having any evidence that she competed. spect to federal matters and dependent from the cution of a collective bargaining agreement and entitlements. The Fair Work Ombudsman takes around judicial branches of the States with respect to lo- the election of union leaders, the reform guar- 50 matters to court each year. Increasingly it is focusing Of fundamental importance was that he also awarded cal matters (the Federal Labour Law establishes antees that the employees’ vote will be personal, not only on the employing entity, but on other parties, the damages, where no expert medical evidence had which are federal and which are local matters). secret and at free will. such as directors and HR executives who are involved in been presented, but only the testimony of Ms. Galea. It also refers to the disappearance of the Con- the alleged contravention, and hence personally liable In that regard, he relied upon the of ciliation and Arbitration Labour Boards, which • Regarding the solution of employee-employer for any breach under accessorial liability laws. Prosecu- Canada’s decision in Saadati v. Moorhead, 2017 SCC are the current authority that solves any dispute conflicts, before going to the labour courts, a tions of this nature have recently extended to obtain- 28 (CanLII) where the court found that expert medical between employees and employers, or between mandatory conciliatory should take place, ing penalties against an accounting firm for knowingly testimony was not required in a case, unions and employers. The Labour Boards were which will be handled by the conciliatory cen- helping one of its clients exploit a vulnerable worker. which he applied in the employment law context. This dependent of the Branch. tres or the decentralised organism, in their cor- was significant, as there had been much debate about responding venue. The FWO has also been focused on compliance by whether medical evidence was required to award dam- • The creation of Conciliatory Centres to deal employers where vulnerable workers are engaged. Re- ages. Galea appears to have resolved that. with local matters; and the creation of the de- The reform contemplates that the Congress and the lo- inforcing this approach, in September 2017, the Fair centralised organism for federal matters, both cal will have a year, as of the date in which Work Act 2009 (Cth) (“FW Act”) was amended to in- Equally of significance, Mr. Justice Emery also awarded having conciliatory functions, and the decen- the reform comes into effect, to do the necessary clude a number of new measures aimed at protecting $500,000 in punitive damages against Wal-Mart, the tralised organism having an additional function amendments to the corresponding . There is “vulnerable workers.” These measures include: highest reported level of punitive damages awarded of registering collective bargaining agreements, currently one amendment to the Federal Labour Law

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• stronger powers for the FWO to collect evi- rates in the retail and hospitality sectors. Sunday and dence during investigations; public holiday penalties were cut with the Full of The previous government significantly • new penalties for providing false or misleading the FWC agreeing with the Productivity Commission’s reduced severance pay as part of the information to the FWO, or hindering or ob- findings that the reduction in penalty rates would have most substantial reforms of employment structing an FWO investigation; “some positive effects” on employment. • increased penalties for “serious contraventions” protection legislation among members of workplace laws (e.g. deliberate contraven- Garneau: In 2017, Canadian legislators were particu- of the Organisation for Economic tions); larly prolific compared to , and we expect chang- • increased penalties for breaches of record-keep- es in the employment standards of at least four provinc- Cooperation and development. ing and pay slip obligations; and es. After two years of independent review and despite - Ines Albuquerque e Castro • a reverse onus of in underpayment claims the polar opposite views of economists on the subject, where an employer has not met record keeping the Ontario government enacted amendments to the or pay slip obligations and cannot show a rea- Employment Standards Act and Labour Relations Act, sonable excuse. which include a rise of the minimum to $15 an sector was enacted by the Quebec government in May Barran: Oregon, where I practice, has recently intro- hour by 2019. In Quebec, wages have been raised from 2017. On the federal side, there will be major changes duced a pay law that is very broad and far reach- In July 2017, as part of its Four Yearly Review of Mod- $10.75 an hour to $11.25 an hour as of 1 May 2017, to the private plan legislation. ing. It is intended to address the statistical disparity in ern Awards, the (“FWC”) de- which is the highest annual increase since 2010. Final- compensation between women and men, but it also af- cided to incorporate a model “casual conversion” clause ly, in Alberta, the New Democrat government drafted Castro: The previous government significantly reduced fects people of colour and other protected classes. The into 85 Modern Awards. The model clause allows for much needed amendments to the province’s workplace severance pay as part of the most substantial reforms U.S. Equal Pay Act (a federal law) has long required equal casual employees who have worked a standard pat- legislation, last updated in 1988. These amendments are of employment protection legislation among members pay between the sexes for in which performance re- tern of hours over the 12-month period to be eligible expected to come into force in January 2018 and even of the Organisation for Economic Cooperation and de- quires similar working conditions and equal skill, effort, to make a request to convert to full- or part-time if quite modest, their objective is to achieve a more fair velopment. Since then, no significant changes were in- and responsibility. This new law forbids employment. and family friendly workplace. serted in the Portuguese legal labour framework. More on the basis of protected class for work of a comparable recently, the most relevant change was brought by Law character, even if the discrimination is unintentional. Importantly, the amendment also requires employers On the heels of various highly publicised sexual scan- No. 73/2017, of 16 August 2017, which strengthened Differentials are acceptable if they result from: to inform casual employees of their right to request this dals which have also occurred in Quebec, the govern- the legal framework for the prevention of harassment, • A seniority system conversion. The request to convert can only be refused ment has introduced novel legislation to regulate and/ imposing the obligation towards the employers to (i) • A merit system by an employer on reasonable business grounds (for or proscribe the nature of intimate relationships univer- adopt codes of good practice for preventing and com- • A system that measures earnings by quantity, example, where the conversion would require a signifi- sity and college teachers may have with students. Also, bating , whenever the company quality, or piece-rate work cant adjustment to the casual employee’s hours of work even though Quebec employment law already specifi- has seven or more employees and (ii) file disciplin- • Workplace location or where it is known or reasonably foreseeable that the cally regulates psychological harassment, the Labour ary proceedings, whenever there is knowledge of ha- • Travel, if necessary employee’s position will cease). Standards Act will be amended to compel employers to rassment situations at work. This law also established • enact policies dealing specifically with sexual harass- protection mechanisms for and for wit- • Training, or Another interesting development in 2017 from this ment and the investigation of such complaints. Finally, nesses indicated by them. • Experience legislative review was the decision to reduce penalty the legislation protecting whistle blowers in the public

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2. Can you outline the current labour market conditions in your jurisdiction?

MacDonald: The most fundamental change to Ontar- focused in mainly the automotive and aerospace indus- io’s employment laws was the introduction of the Fair tries. As the constant establishment of these kinds of Workplaces, Better Jobs Act, 2017 (known as “Bill 148”) companies grows, the labour market has become much on 1 January 2018. Bill 148 is the most substantial over- more competitive. Companies have adopted higher haul of the Ontario’s provincial employment legislation compliance and compensation standards in order to be the Employment Standards Act, 2000 (the “ESA”) and able to have a better retention rate of employees. NAF- the Ontario Labour Relations Act in a generation. TA has been a great supporter of this growth.

The amendments to the ESA included in Bill 148 will Similarly, a reason why Mexico has become an attrac- change a number of areas of the ESA, mostly for the tive location for these kinds of companies is that there benefit of employees. The most publicised changes to is a highly qualified workforce available at a lower cost the ESA are the increases to the that than in other developed countries. Local governments will occur in 2018 and 2019. Less well-known are the are investing in specialised universities and technical myriad of other changes that will drastically impact the institutes to create a wider and more prepared work- management of Ontario’s workforce for years to come. force in order to be able to attract more foreign invest- However, Ontario’s employment law now is now re- ment of these conditions. quired to be better balanced for employees, and con- tract workers, through significant extensions to leaves Garneau: On the one hand, the right to unionise has of absence provisions, including domestic violence been extended by provincial laws or court decisions to leave, paying for three hour shift-work, regardless of new groups of employees that were historically denied whether the employee works the shift, and ensuring the right to unionise, including first level managers and equal work for equal pay. foremen. In a recent decision, the Administrative Labour case in early May 2017, when the Quebec government tion. The Portuguese economy experienced growth in of Quebec, ruling on the validity of a section of passed a special law forcing the return to work of more early 2013, and Portugal has seen significant improve- Bill 148 brings a myriad of other changes that will dras- the excluding managers from the right to than 175,000 construction workers then on strike fol- ments in both employment and rates tically impact the management for own- unionise, opened the door to such unionisation by con- lowing the collapse of the collective bargaining process. – much more so, in fact, than what one would have ex- ers, particularly those who offer , sidering that the section prohibiting managers and fore- In addition, the government unilaterally imposed the pected given the pace of the recovery. However, despite work, or relationships to their work- man from unionising violated the constitutional right restructuring of all municipal defined benefit pension the progress made, many challenges remain. Unem- ers. Not only will these employers need to be weary of of . Also, in Alberta, dependant plans. The government enacted a scheme which im- ployment remains high and is linked to an increase in their obligations pursuant to the new amendments to contractors will have the right to create unions pursuant pacted previous acquired rights (including automatic poverty rates, even though long-term unemployment the Act, but also, the manner in which the worker is to the proposed amendments to employment standards. indexation) under the plans and arbitrators were given itself is showing signs of reducing. The labour market classified, especially if it as an independent contractor the power to enforce the reductions if the parties could remains highly segmented and, in the context of very with the desire to avoid the Act minimums. On the other hand, the bargaining power of unions not agree on the proposed reductions. low inflation, the presence of downward nominal wage appears to be somewhat undermined by government rigidity is likely to remain a barrier to the competitive- Tostado: Mexico has become a popular location for incursions in the collective bargaining process of a Castro: The major reforms to the Portuguese labour ness of the Portuguese economy – unless productivity foreign invested manufacturing companies which are certain category of employees. This was especially the market, enacted in 2012, were a move in the right direc- growth is strengthened.

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3. How can employers/employees better understand their rights?

MacDonald: Today, employers and employees may On the other hand, the employer is not granted with develop a more sophisticated understanding of their such benefit as Mexican laws consider a legal entity to rights than ever before through the internet. Howev- have sufficient means to be able to be correctly assessed er, the discerning employee or employer should never on labour related matters, hence, an employer may not rely solely on what is written on the net, but must also allege ignorance of the labour provisions, as any breach conduct their own research by consulting with expe- will be imputable to the organisation. Therefore, the rienced employment counsel. It certainly is never as way an employer may be provided with a better under- simple as just applying the facts of the situation to the standing of its rights will be through a consistent and case at hand. In Canada, Canlii, is a gratuitous ser- regular legal advisory. vice providing employees and employers with , and offering commentary as well. Additionally, Hor: There are 10 minimum workplace entitlements there are many courses that are now offered by repu- under the National Employment Standards (“NES”) table schools for human resource management, and and one of these is the right for new employees to re- best practice, so employers can certainly take advan- ceive the ”Fair Work Information Statement”. The Fair tage of that. However, many other considerations are Work Information Statement must be provided to all required, and it is only through reviewing the particu- new employees by their employer before or as soon as lar circumstances with counsel, that an employer or possible after the commencement of their employment. employee will be fully informed of their rights and This statement outlines the minimum workplace enti- obligations. tlements in the NES (maximum working hours, paren- tal leave, etc.) and information concerning Tostado: Mexico has a very employee oriented Fed- the right to request flexible working arrangements and eral Labour Law, which contains the guidelines of the concerning the Modern Awards which may cover an Barran: I practice in a broad jurisdiction with constant- fer general discussions that can impart a lot of Labour Defence Office. Such office is in charge of rep- industry/occupation. ly evolving and developing . Keeping up with information. resenting employees and their unions on any matter it is difficult, even for people who are legally trained. • In recent years, law firms have promoted their related to the application of labour provisions, assess- Advice and support for employers/employees in un- Employees, and smaller employers who cannot afford practices by blogging. The best of these report ment related to the application of the Federal Labour derstanding their workplace rights and obligations may in-house counsel, are at a disadvantage. However, many on new events or provide short, plain-language Law, as well as serving as a conciliatory stage to solve also be provided by unions and employer associations. web-based resources can be effective: articles on subjects of importance. They are, disputes prior to engaging litigation before a Concili- Strategic and commercial advice can also be sought • Most government agencies offer informational certainly, designed to attract business, but gen- ation and Arbitration Board. from external professionals and may prevent disputa- websites that include outlines of the law, FAQs, erally offer good entry-level information. tion, conflict and legal problems from arising within and hotlines or telephone resources. Finding • Do not underestimate the value of books and Any employee is granted with this benefit free of organisations. This external advice may be especially the right site can generally be accomplished by manuals written for the general public. They charge, and they may appear before this authority in beneficial for organisations where the internal human searching online for the topic area and being don’t replace lawyers, but the more an employer order to obtain any information related to their em- resource function is largely operational rather than alert for results that have a government domain. or employee knows in advance, the more cost ployment rights or benefits. strategic. • There are a number of public information sites, effective the lawyer-client relationship can be. some related to newsletters or media. These of-

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4. Are there any effective employee retention strategies or best practices for manager-employee relations an organisation can implement?

Tostado: In our jurisdiction, the most effective em- As part of an effective employee retention strategy, em- ployee retention strategy is being competitive in the ployers should consider taking a proactive approach to labour market, this is, providing employees with ben- flexible working arrangements rather than simply wait- efits above the minimum standards set forth by the ing for eligible employees to make a request under the Federal Labour Law such as: food vouchers, life insur- NES. For example, Ernst & Young has announced that ance, savings fund, private plans, children coming into work is optional for its employees. A more scholarships, amongst others. open approach to flexible working arrangements can be used to attract talented people to the organisation and From our experience, companies that have low com- enhance satisfaction and retention among existing staff. pensation plans have a high rate of employee rotation, A proactive approach necessitates a focus on identify- moreover when they are located at industrial parks of ing particular functions, positions or duties that can be commercial sites where it is very easy to spot the vari- performed on a flexible basis. Flexible work comes in ation between the benefits granted on each company. many forms, with options growing rapidly as technol- ogy advances. Employees might be allowed to work, for In addition to a competitive compensation plan, the example: part-time; compressed hours; at different lo- Labour Department in Mexico has been active review- cations; in -sharing arrangements; or with reduced ing that companies are non-discriminatory and that hours in certain weeks through the creative use of leave. are taking actions against labour and sexual harass- ment by establishing policies. We believe that being Garneau: This quote from Richard Branson has nev- a respectful and compliant company may also be an er been truer: ‘take care of your employees and they’ll effective strategy for employee retention, as employees take care of your business’. Indeed, over recent years, feel comfortable on their work environment. employees have become extremely concerned by their ability to manage their professional commitments with- Hor: In today’s workforce, the opportunity to work out adversely impacting their personal and family life. the increasing number of hours lost to sick leaves and ees’ children; granting or duly documented payment of flexibly is important to many employees. However, This is particularly true for employees of the younger employees on burn-out. training and specialisation courses or seminars; reim- when employers think of flexible working arrange- generation who expect their employer to be sensitive to bursements for medical and dental care expenses of the ments, they usually limit themselves to the right to their need to reconcile job and family and who will not Castro: In addition to the common package employee and of their family assumed by the employer; make a request for flexible working arrangements un- hesitate to look for employment elsewhere if they feel agreed with employees in general, employers try to be etc.); (vii) housing, among other benefits. der the NES. This right is limited to employees who their employer is only paying lip service to this prin- creative on the remuneration package of management meet the eligibility requirement of performing 12 ciple. This is notably why the proposed or anticipated teams in order to attract them and retain talents. Such Before implementing such strategies or granting man- months’ continuous service, and must fit into one of amendments to employment standards in various ar- package usually include: (i) stock options and shares; agers with such benefits, it is important to analyse the designated categories such as returning from pa- eas of Canada aim to create a better work-life balance (ii) collective retirement policies; (iii) pen- whether the benefit can be deemed remuneration and rental leave, having carer’s responsibilities, or being and a better environment of work. In Quebec, there is a sion plans; (iv) reimbursement of expenses; (v) labour the respective consequences, in order to minimise risks over 55 years of age. movement by the left to amend the labour laws to grant tools; (vi) social benefits (lunch services provided by and exposure in case of a conflict. four weeks of paid vacation to all workers because of the company; supply of school materials for employ-

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5. What are the employment rights for those considering taking part in industrial action or strikes?

Tostado: Firstly, Mexican legislation states that em- tion ballot authorising the action and for written notice ployees are free to be part of an active union, therefore to be given to the employer three days in advance of the they may be involved in a strike claim that has any of proposed action. If the industrial action is not protect- the following purposes: (i) achieve a balance between ed, it may be unlawful and may expose those engaging the production factors (employee and company), (ii) in, or facilitating that industrial action, to legal action. for the signature of the collective bargaining agreement or for its annual or bi-annual revision, (iii) enforce the Employees are provided with a range of legislative pro- application of the agreement or any of its specific claus- tections in relation to engaging in industrial activity, es, (iv) to require the company to comply with profit including the general provisions in the FW Act. Under sharing related norms, (v) to support another strike, the general provisions in the FW Act, an employer is and (vi) to force the revision of the salary chart of the prohibited from taking “adverse action” (e.g. dismissal) collective bargaining agreement. against an employee or a prospective employee because of a “proscribed reason” (e.g. engaging or not engaging During the strike process, employees will have the fol- in industrial activity). lowing rights: protected industrial action. An employer is prohibited ployees who engage in concerted action to address the • If the motives that caused the strike process are If an allegation is made that an employer has taken ad- from paying employees engaging in industrial action, terms and conditions of their employment. The imputable to the employer, then the employees verse action against an employee, the onus will fall on but retains some discretion if the action only involves a protects the right to engage in concerted activities for will be entitled to lost wages; the employer to demonstrate that the subjective inten- partial work ban. the purpose of bargaining collectively, or for other “mu- • Their vote, when necessary, will be personal, se- tion behind taking the adverse action was not because tual aid or protection” and the law does not “impede cret and with free will; and the employee engaged in protected industrial action. Garneau: Under Quebec law, the employment relation- or diminish” the right to strike. Some strikes are lawful • To be provided by the employer with the neces- For example, the of Australia found that an ship is not severed during a legal strike or lock-out. At and for either an economic purpose or because of an sary infrastructure if voting is required. employer successfully demonstrated it had not termi- the end of a strike or lock-out, the employee has the unfair labour practice. Others are unlawful and unpro- nated a union official for the prohibited reason of en- right to be reinstated into his position regardless of the tected (employees can lose their right to reinstatement) Hor: There are limited circumstances in which lawful gaging in industrial activity, but it was because of the length of the strike or the lock-out. In addition, Que- – because of the nature of the purpose, because they are or “protected” industrial action – that is, industrial ac- official’s conduct during a protected industrial action. bec has anti-scab legislation which prohibits the use in called at an impermissible time, or because the employ- tion in respect of which the parties are protected from The union official acknowledged that he knew his con- the establishment which is the object of the strike of ees involved in the strike engage in misconduct. Addi- legal action – may be taken. This protection relates to duct in waving a sign reading “No Principles SCABS replacement workers and subcontractors. This severely tionally, there are procedural notice requirements that the right to strike as a collective bargaining tool. For No Guts” was inappropriate and contrary to the com- restricts the ability of the employer to maintain its op- must be fulfilled before health care workers can strike industrial action to be protected under the FW Act it pany’s Workplace Conduct Policy. This was found to be erations during a strike or lock-out because only those or picket. Employers may temporarily replace striking must either be in support of a new enterprise agree- the reason for dismissal and therefore not in breach of managers hired prior to the bargaining phase may le- workers, or under some circumstances, “permanently ment, an existing agreement passed the nominal expiry the FW Act. gally perform the work of a striking employee. Other replace” the strikers. Enforcement of employer or em- date, or in response to industrial action taken by the non-unionised employees may not perform this work. ployee rights is typically through the unfair labour other party. There are also procedural aspects which The possible responses to industrial action are also practices provisions of the statute, but under limited must be satisfied which include the need for the Fair dealt with under the FW Act. The Fair Work Commis- Barran: American federal law (principally the National circumstances, employers may sue for damages under Work Commission to grant an order for a protected ac- sion must make orders stopping or preventing any un- Labor Relations Act) has strong protections for em- the statute.

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7. How do employment tribunals operate in your jurisdiction?

Tostado: In Mexico, the labour disputes are managed bunals that deal with particular complaints or applica- by Conciliation and Arbitration Labour Boards de- tions relating to workers’ compensation and workplace pendent of the Executive Branch. There are Federal discrimination. The nature of the claim and the leg- and Local Conciliation and Arbitration Boards. Their islation under which it is brought will determine the venue depends on the industry or kind of service or appropriate tribunal to deal with the dispute. In some activity in which the employer is engaged. circumstances, the same set of facts may give rise to 6. In the UK, the public perception of trade unions is that their power has potential causes of action in various jurisdictions. For been slowly diminished since the premiership of Margaret Thatcher. What is As mentioned before, the main activity of the Con- example, where an employee alleges they have been dis- the current role for trade unions in your jurisdiction both in regards to conflict ciliation and Arbitration Boards is to solve disputes criminated against at work, if the claim is: between employers and employees, or between unions • made under the general protections provisions resolution and workplace relations? and employers. Nevertheless, they also have addition- in the FW Act it will be lodged with and dealt al functions such as keeping a registry of the Collec- with at first instance at the Fair Work Com- Tostado: Trade Unions in Mexico are currently per- Regardless of the above, there are some well-known tive Bargaining Agreements and Internal Working mission; ceived as being corrupt institutions. Furthermore, unions that are more employee oriented and do work Rules, as the registration of both documents before • made under federal anti-discrimination legis- trade unions have had a very important role in the State for their employees’ benefits. Companies that have en- the authority is mandatory in order to be able to en- lation, the claim will be lodged with and dealt and Presidential Elections. As we mentioned above, tered a collective bargaining agreement with one of force them. with at first instance by the Australian Human one of the purposes of a strike is to obtain the signature these unions may have improved workplace relations, Rights Commission; or of a collective bargaining agreement with a company, as there is constant presence of them within the Com- The resolutions of the Labour Boards can be chal- • made under state anti-discrimination legisla- nevertheless the current Federal Labour Law does not pany and they are constantly trying to improve the em- lenged by a constitutional appeal that will be studied tion it will be lodged with and dealt with at state any minimum requirements for a union to be able ployment conditions, providing recreational programs by a court or tribunal dependant of the Judicial Sys- first instance by the tribunals established for to file a strike claim of this nature. Therefore, there are and campaigns for employees. tem. that purpose in the relevant jurisdiction. groups of unions that take advantage of this legal loop- hole to file a strike process with the sole purpose of ob- Garneau: Under the rule of the conservative govern- Hor: The Fair Work Commission is the national stat- Garneau: On the federal side, disputes between taining an economic benefit from the company, even ment of Stephen Harper, legislation was passed to utory workplace tribunal (“FWC” or “Commission”) unions and federally regulated employers are dealt when they are not supported by the company’s employ- compel unions to disclose their financial records to the which covers approximately 90% of all employers in by the Canada Board. Individual ees. Another advantage of unions is that the Mexican government. In addition, legislation was also passed to Australia. The Commission is an independent body disputes, including wrongful dismissals, are dealt by treasury cannot inspect them in their tax compliance; reduce or eliminate the tax deduction arising out of a that performs a number of roles which include ap- arbitrators appointed by the Minister of Employment. therefore, unions are commonly used by employers to contribution to a union sponsored financial fund. This proving enterprise agreements, creating and varying Directors and senior executives are excluded from the avoid full payment to employees, avoid taxes and social was met with very negative reactions from both unions modern awards, setting minimum wages, and resolv- application of the and must seek security contributions, as well as for money laundering. and since these funds invest billions in the ing a variety of workplace disputes. Some States retain redress before the ordinary courts of civil jurisdiction. Quebec economy. When the new liberal government industrial tribunals that deal with state public sector What we stated above, is one of the reasons why the of Justin Trudeau was elected, these were employees, or any private sector employee outside the In Quebec, disputes between unions and provincially current perception of unions is not good regarding repealed. national system. regulated employers are dealt by the Tribunal adminis- conflict resolutions, but contrarily, they are considered tratif du travail who also handles employment disputes by many sectors of the industry as a cause of conflict. The States and Territories of Australia also have tri- between individuals who are not senior executives and

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8. Which dispute resolution method do you find are most commonly recommend . In general, the majority of disputes are resulted to employers and why? through judicial proceedings. A complaint is filed in state or federal court, it is answered, the parties MacDonald: That answer very much depends on the as often they do not have the requisite employment law particular circumstances of the case. First, you may expertise to resolve the case. engage in discovery (under the court’s general have considerations which require that you not consid- supervision), and eventually matters that do not settle er settlement for fear of creating a . Second, Tostado: In Mexico, the only legal method to solve la- you may wish to obtain further information from a bour disputes is to engage litigation before a Conciliation are tried before a or, in some cases, a . plaintiff and require examination for discovery in order and Arbitration Board. Nevertheless, a regular labour - Paula Barran to elicit such information and documentation. Third, litigation process encourages both parties to seek for it may be a desired outcome to attempt to negotiate a conciliation, as they can settle in any stage of the process. settlement at the outset. Hor: Alternative dispute resolution (“ADR”) is com- employers. However, senior executives are excluded Barran: There has been discussion from time to time In Ontario, Canada, it is mandatory that in all employ- monly recommended or legislatively mandated for from most provisions of the Labour Standards Act and about developing specialised tribunals to address the ment related actions, (except in certain jurisdictions) employers and can be incorporated into the litigation must seek redress before the ordinary courts of civil ju- kinds of matters that result in court (where many take place. Even if that were not the case, if process or used alongside legal proceedings. ADR en- risdiction. employment disputes are resolved). That has not yet the employer is seeking to resolve a dispute, I would compasses a wide range of processes designed to re- happened, although there are a range of other mecha- recommend mediation as the preferred route to at- solve disputes without judicial determination. ADR There are other specialised tribunals that deal with nisms and forums depending on the nature of the dis- tempt settlement. However, timing of mediation is stra- most commonly involves an independent person help- disputes concerning essential services in the public pute. In general, the majority of disputes are resulted tegic, as it may be advisable for it to occur earlier or ing people in dispute resolve the issues between them. sector or disputes between public sector employees through judicial proceedings. A complaint is filed in later in the litigation process, depending upon the is- The flexibility of ADR means that it can be used for al- and the government. The Tribunal des droits de la per- state or federal court, it is answered, the parties engage sues at hand. most any kind of dispute and is particularly well suited sonne has concurrent jurisdiction over employment in discovery (under the court’s general supervision), to workplace grievances, particularly where there is disputes involving allegations of discrimination (age, and eventually matters that do not settle are tried be- The purpose of mediation is to attempt to settle the an on-going employment relationship and there is the sex, sexual orientation, religion, political opinions, fore a jury or, in some cases, a judge. The process can matter. The process involves the parties coming togeth- opportunity to preserve or repair that relationship. In etc.). take more than a year. er to focus on the issues and key documents, with the some cases it is a voluntary process engaged in with the assistance of a neutral, third party facilitator. Mediation agreement of all parties, while in other cases legislation Castro: On a first instance level, the Labour Court, pre- Employers and employees can agree to resolve disputes is a non-binding process. In that regard, the mediator or an industrial instrument may require parties to par- sided by one judge, has jurisdiction over employment- through arbitration before a single arbitrator or a pan- is not a judge and therefore, cannot make a decision ticipate in a particular form of ADR. related complaints. Subsequently, the Social Division el (typically of three). This is paid for by the parties, about the case. Rather, the mediator’s role is to assist of the Court of Appeals, ruling with a panel of three with some jurisdictions requiring the employer to pay the parties to attempt to resolve the matter. The process For example, the FW Act requires that all modern awards judges, has jurisdiction to decide on appeals against any fees that exceed what an employee would pay for a is confidential and nothing from the mediation can be include a term which sets out a procedure for resolving Labour Courts’ decisions. At the last stage of hierarchy court filing. Arbitration is less formal and can generally used in the litigation process. If the parties are unable disputes between employers and employees about any of the Courts stands the 4th Division of the Supreme be expedited. Various enforcement agencies can also to reach a settlement, the matter will simply proceed. matter arising under the modern award and the Nation- Court of Justice also ruling with a panel of three Judges. bring enforcement actions through administrative con- al Employment Standards. In addition, when making an Additionally, the Constitutional Courts exclusive juris- tested case hearings. These are typically resolved by an In mediation, the parties may either select a mediator or enterprise agreement, the FW Act requires the parties diction over violation of any constitutional provision. appointed judge whose jurisdiction have one appointed from the court. Typically, I attempt include a dispute resolution clause. Enterprise agree- and authority are based on . to select one, and not have a court appointed mediator, ments lodged without that clause will not be approved.

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On the federal side, the CIRB also 9. What legal issues do employers often overlook during a termination process? offers mediation services to resolve disputes between employers and MacDonald: When employers dismiss their employ- which the employee will be entitled to receive full sev- ees, they may dismiss their employees for just cause, erance. unions and unfair representation or without cause. Often, I see employers leaping before disputes between unionized looking at whether or not they have cause. If they allege Hor: In circumstances where an employer is made employees and their unions. cause where there is no evidence of cause, the employer aware of misconduct allegations against an employee could be liable for extraordinary damages. that could justify termination, many employers fail to - Francois Garneau properly investigate the matter. Employers often over- “Where an employer claims that a termination was look the possibility of assigning different persons with for just cause or summary dismissal, the onus is on the the investigatory and decision-making function in the employer to prove the existence of grounds constituting termination process. An “independent” decision maker Within the workplace a dispute can be resolved through This conference is presided by a judge who will not be just cause termination. The employer therefore has the can review the report and accept or reject the findings negotiation as a simple and flexible form of ADR which the judge hearing the case if the parties fail to come to burden of establishing the necessary facts to support the and then determine the most appropriate course of ac- is suitable if the parties can discuss matters directly and a settlement. On the federal side, the CIRB also offers cause allegation. Failure to establish just cause in a court- tion without the added pressure of having to defend the want some control over the outcome. Settlement nego- mediation services to resolve disputes between employ- room can be severely harmful for an employer, often re- process and course they adopted, which may happen if tiations can be conducted by telephone, in correspon- ers and unions and unfair representation disputes be- sulting in increased damages for bad faith, or may have they were the investigator. dence or face-to-face. If there has been a breakdown tween unionized employees and their unions. much more severe results.” 1 in the employment relationship, it may assist to have Another common issue overlooked is where an employ- another person, such as a lawyer, helping with the ne- Barran: When I am able to influence such a decision, I Tostado: A common mistake to overlook is that in or- er is concerned about the underperformance of an em- gotiations. Using a mediator can also be helpful when typically recommend arbitration. Having a trained ar- der to be able to terminate an employee by a justified ployee and is seeking to terminate their employment, parties want an expert view or where self-represented bitrator make a decision about an employment dispute cause, there must be sufficient evidence to be able to but has not taken appropriate steps to communicate litigants would like to reach an agreement on technical more often than not avoids the “passion and prejudice” prove (in litigation), that such dismissal was, in effect, to the employee that his or her work is below standard legal issues. that can affect a jury. Many jurors have had their own with cause. and/or has not provided an adequate opportunity or bad employment experiences and it is asking a lot of support to the employee to improve their performance. Garneau: In Quebec, there are three non-binding them to set aside their own beliefs and perceptions Many employers believe that it is sufficient to state A classic problem is where this underperformance is resolution processes which can be used to resolve em- about fairness. It is also easier for error to affect the that the causes of the termination of the employees are presented as the reason for termination and the history ployment disputes. Firstly, the Labour Standards Com- proceedings, often leading to an appeal and perhaps re- imputable to them; however, employees do not take of the employee’s performance reviews and other docu- mission (CNESST) offers a mediation service once trials. Disputes can go on for many years – which is un- enough precaution to gather admissible evidence that ments do not support evidence of underperformance complaints have been filed under the provisions of the healthy for the parties and very expensive. In contrast, could support the termination cause when in litigation. and their performance has been rated as satisfactory or Labour Standards Act. If these complaints are not re- parties can agree that the arbitration would be final and Some of this evidence may be: a written confession of above on all other occasions. Finally, employers often solved, they are transferred to the Tribunal administra- binding. Arbitrators also more frequently impose limits the employee, taking toxicology exams, receipts, seek to cushion the blow to an employee of having their tif du travail. This tribunal also has a department which on the kind of excessive scorched-earth discovery that videos, amongst others. employment terminated by trying to present what is a offers a conciliation/mediation service. Finally, dis- has driven up the cost of pre- procedures, and that performance based termination as a redundancy in- putes involving senior executives who have filed action is an additional benefit of this forum. The consequence of not having sufficient evidence to stead. before the courts of civil jurisdiction can be resolved prove a for-cause termination will be that it will be con- through a CRA (conférence de règlement à l’amiable). sidered by the authority as an unjustified dismissal, by An overarching theme is the importance of the em-

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ployer ensuring that the termination process is proce- it can lead to dire financial consequences. Please note durally fair. Procedural fairness can be dictated by ap- that the federal labour code provides a similar recourse plicable contractual obligations, policies or procedures. for wrongfully terminated employees who have more Any proposed action should be put to the employee than one year of continuous service. and their response should be considered as this may be relevant to defending an . It is appro- Castro: A key aspect of Portuguese employment law is priate to warn the employee prior to the meeting of the the fact that employers may not unilaterally terminate potential for dismissal, indicate that all circumstances employment contracts without legal grounds (i.e., by will be taken into account, and allow a support person simply providing adequate notice), except by mutual to be present. agreement with the employee concerned, in which case the parties are free to negotiate the terms and condi- Garneau: A lot of foreign companies (American, tions of the termination, as well as the amount of com- French and British) operate subsidiaries in Quebec. pensation. Additionally, unilateral termination of em- Very often, they do not have local employees handling ployment contracts must always follow the appropriate HR. Unfortunately but quite often, they proceed to ter- proceedings. minations of non-unionised employees. Most of these terminations turn-out to be “without cause” termina- The courts tend to be very protective of employees’ tions because the employer failed to follow the rules rights and interests in their decisions. Therefore, the of progressive discipline or the rules requiring that in- risk of an unlawful dismissal must always be taken into competence be proved. In addition, these employers account when unilaterally terminating an employment rely on the erroneous assumption that the employee’s contract. only recourse is a civil recourse where they can claim additional notice. This is not the case. Any employee in Barran: I see two issues that often cause termination Quebec (except a senior executive) who has more than problems for employers. First, there is the matter of fi- two years of continuous service can file a complaint nal payment of wages. My jurisdiction (like many states with the Labour Standards Commission (CNESST) and in the U.S.) has very strict “final paycheck” rules. In termination employee has earned and is owed com- tor. Although employers cannot hold the final paycheck request compensation for all lost wages and reinstate- general, these rules require employers to issue a final missions on only those sales that have been finalised, hostage, good policies and good exit practices can help ment. If the complaint is not resolved, it is referred to paycheck for all wages owed within a set time upon or delivered, or paid for). Provisions like this help em- identify this kind of theft, and employers can consider the Tribunal administratif du travail. The rules of rea- termination. That sounds simpler than it is. Some em- ployers know exactly how much to pay. Secondly, there litigation, withholding references, notification of new sonable notice do not apply before this tribunal and ployers pay employees a draw against commission and is the matter of intellectual belonging to the employers, and other measures to ensure return of the should the tribunal find that the termination was with- cannot calculate a commission payment until some set employer. Some employees “forget” to return their lap- kind of property that can harm their competitive ad- out cause, this can lead to very substantial compensa- time after termination. It may make sense, depending tops or smart phones, while others have done a very vantage. tion awards with interests and legal fees as well as an on the way the law is written, to write those kinds of good job of making copies of documents and taking order of reinstatement. When this very specific aspect commission policies so that there is an earning cut off them home to use later in employment with a competi- 1. N. MacDonald, Extraordinary Damages in Canadian Employment Law (Toronto: of Quebec law is overlooked or ignored by employers as of the moment of termination (for example: upon Thomson Carswell, 2010)

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11. What key trends do you expect to see over the coming year and in an ideal world what would you like to see implemented or changed?

MacDonald: The biggest trend I expect to see emerge party, and is subjected to a barrage of tactics, for hav- in 2018 relates to the new workplace being revolution- ing brought the complaint, receiving no help from the ised by the #METOO/TIME’S UP movement. I believe tribunal in that regard, and is forced to obtain counsel. 10. What is the law for workers compensation in your jurisdiction and what does that employers will see an increasing number of claims The same is true for a defendant, who, unfortunately, as a result of workplace harassment and sexual harass- finds itself in a position of needing to defend its posi- it cover? ment. In Canada, we are already seeing the impact of tion, again, requiring, expert legal advice. the “Weinstein” effect, as individuals who in the past, Tostado: The legal framework for worker’s compensation in Mexico is the Federal Labour Law and it establishes may not have had the courage to bring forward claims Tostado: The trending matter for the following year the minimum standards for: of harassment and are now stepping will certainly be the implementation of the constitu- forward to initiate complaints for the workplace to in- tional reform in regards to labour justice, therefore, Vacation and Vacation Premium: Employees are entitled to the following days of paid vacation for a full year of vestigate. we will like to see the necessary amendments and the services: creation of secondary legislation so that the reform can In an ideal world in employment law, I would like to see become effective. Years of Rendered Services Days of Vacation employers and employees be able to claim for legal fees 1 6 incurred in order to either bring an action to the Hu- Many of the conflicts managed by the Labour Boards 2 8 man Rights Tribunal, or defend a frivolous complaint. are unjustified dismissals, because employees seek sev- 3 10 In civil courts, both parties are able to claim for their erance. If the law could change, in order to be accruing 4 12 legal fees, and that is not the case when the parties are severance throughout the employment relationship, we 5-9 14 in front of tribunals. Just as much work would not have far fewer conflicts and the employment 10-14 16 goes into a human rights case, as it does for civil cases, relationships will be more flexible. 2 additional days per five years of rendered services and yet, the Supreme Court of Canada contends that the successful party cannot claim for the legal fees in- Hor: As the gig economy continues to expand so does If termination of employment prior to the end of any full year occurs of service, the employee is entitled to curred. the push to regulate this labour market of on-demand payment of the proportional part of his accrued vacation for that year. services. In 2016 a London de- With respect, that makes it difficult for a party either termined that drivers were not to be classified as Vacation pay is made at a rate of the normal daily wage plus a 25% premium. wishing to bring a meritorious claim, but requiring le- self-employed and were consequently entitled to the gal assistance to do so, or a party having to defend its basic employment worker rights. Uber’s appeal against Year-end (Christmas) Bonus: Employees are entitled to payment of an annual year-end bonus equal to at least the actions against an unmeritorious claim – both situa- this ruling was dismissed in 2017 and will likely be sub- daily wage of 15 days. This bonus is payable before 20 December of each year. tions are utterly unfair. The law on this is something ject to a Supreme Court decision in 2018. It is expected that needs to change to allow both parties to benefit. that these debates concerning a gig workers’ as an Profit Sharing: Employees may receive their pro-rata portion of 10% of their employer’s fiscal year (January- employee or independent contractor will continue and December) pre-tax profit. 50% of the distributable amount is divided in proportion to the number of days worked The complexities in navigating the human rights tribu- drive greater legal certainty in the gig economy. during the employer’s fiscal year by each employee, and the other 50% is divided based on each employee’s wage. nals are immense, and good counsel is needed to help Payment of the distributable amount must be made within the 60 days (31 May) immediately following the date either party. This is particularly so, where a party hav- The issue has not been decisively determined under for filing the employer’s year-end return (31 March). ing a legitimate complaint is up against a well-resourced , but there have been some inter-

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esting recent developments. For example, Airtasker – cal employment relationships (e.g. and an Australian based company that has created an on- telework, cloud working, zero working hours contracts, line community marketplace for people to outsource a gig economy workers), are becoming increasingly pop- variety of everyday tasks – has deviated from the in- ular – even among large and multi-national corpora- dependence of other operators in the gig economy by tions which try to implement them in Portugal. Portu- exploring the possibility for greater supervision and guese companies are therefore required to adjust those involvement from the Fair Work Commission (Austra- new employment relationships to the way them operate lia’s national workplace relations tribunal). Members of and to the legal framework. the FWC along with Unions NSW and Airtasker have entered into a heads of agreement which commits Air- On the other hand, the impact of technology on em- tasker to recommending the task-appropriate award ployment is also a hot topic nowadays since it creates rates of pay, an insurance product similar to workers’ vast opportunities and equally raises concerns. It ad- compensation, a “best practice” WHS standard and by dresses the limits of , the poten- having the FWC rather than a third party provider in- tial impact of artificial intelligence on the employment volved in the dispute resolution process. structure, the workplace and work requirements in the future. The impact of technology is likely to transform Garneau: Reasonable accommodation in the work- working patterns with increases in globalised work- place for religious reasons continues to be a conten- forces, mobile work and working from home. tious issue in Canada. In Quebec, the government has recently enacted legislation to provide guidance to em- Barran: We are at the beginning of a significant move- ployers when dealing with such request. The legislation ment to readjust the balance of power regarding harass- was immediately contested for constitutional reasons ment in the workplace. If past civil rights movements before the courts and its main provision is currently of this kind are any clue, we can expect that employers suspended. Also, the upcoming legalisation in Canada are going to experience pressure to shortcut their pro- of the recreational use of cannabis and related products cesses, to believe that all (or most) complaints are true, is going to confront employers with even more requests and to impose severe disciplinary sanctions on respon- to accommodate the use of these drugs for medicinal dents for all manner of offences. That will be followed purposes and to enact rules concerning the use of such by a push back, since movements of this kind are often products in and out of the workplace. followed by an equally fierce counter movement. The potential for liability on both ends is high and I hope Castro: Rapid technological progress, globalisation that we can keep reminding employers that there isn’t and financial crisis have fundamentally changed labour a good substitute for fairness in the workplace on both markets worldwide and created space for growth of sides of this issue. atypical or non-standard forms of work. These atypi-

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