Canadian Labour and Employment Law Journal Revue Canadienne De Droit Du Travail Et De L'emploi VOLUME 12

Frontmatter_v12n3 11/6/06 1:31 PM Page i

Canadian Labour and Employment Law Journal

Revue canadienne de droit du travail et de l’emploi 2005 CanLIIDocs 206 VOLUME 12

EDITOR IN CHIEF / RÉDACTEUR EN CHEF Bernard Adell Faculty of Law Queen’s University ASSOCIATE EDITORS / RÉDACTEURS CONSULTATIFS Jeffrey Sack of the Ontario Bar Brian Burkett of the Ontario Bar PLANNING AND SUBMISSIONS EDITOR / DIRECTEUR DES PROJETS Michael Lynk Faculty of Law University of Western Ontario BOOK REVIEW EDITOR / RÉDACTEUR DES COMPTES RENDUS John-Paul Alexandrowicz of the Ontario Bar MANAGING EDITOR / DIRECTEUR ADMINISTRATIF Boris Bohuslawsky of the Ontario Bar Frontmatter_v12n3 11/6/06 1:31 PM Page ii

INTERNATIONAL ASSOCIATION OF LABOUR LAW JOURNALS

www.labourlawjournals.com

Análisis Laboral (Peru) Arbeit und Recht (Germany) Australian Journal of Labour Law (Australia) Bulletin de Droit Comparé du Travail et de la Securité Sociale (France) 2005 CanLIIDocs 206 Bulletin of Comparative Labour Relations (Belgium) Canadian Labour & Employment Law Journal (Canada) Comparative Labor Law & Policy Journal (US) Industrial Law Journal (South Africa) Industrial Law Journal (UK) International Journal of Comparative Labour Law & Industrial Relations (Italy) International Labour Review (ILO) Japan Labor Review (Japan) Labour, Society and Law (Israel) Lavoro e Diritto (Italy) Relaciones Laborales (Spain) Zeitschrift für ausländisches und internationales Arbeits- und Sozialrecht (Germany)

The International Association of Labour Law Journals was established for the following purposes: 1. Advancing research and scholarship in the ﬁelds of labour and employment law; 2. Encouraging the exchange of information regarding all aspects of the publishing process; 3. Promoting closer relations among editors of national and international labour and employment law journals. Frontmatter_v12n3 11/6/06 1:31 PM Page iii

EDITORIAL ADVISORY BOARD / COMITÉ CONSULTATIF DE RÉDACTION

CHAIR Hon. Mr. Justice Warren Winkler Ontario Superior Court of Justice

Professor Roy Adams Professor Thomas Kuttner

McMaster University University of New Brunswick 2005 CanLIIDocs 206 Professor Marie-France Bich Dean Ronald McCallum Université de Montréal University of Sydney Professor Innis Christie Professor Alan Neal Dalhousie University University of Warwick Professor Geoffrey England Professor Jean Sexton University of Saskatchewan Université Laval Professor Keith Ewing Kenneth Swan King’s College Mediator and Arbitrator London, England Hon. Madam Justice Professor Matthew Finkin Katherine Swinton University of Illinois Ontario Superior Court of Justice Professor Judy Fudge Professor Lord Wedderburn Osgoode Hall Law School London School of Economics Hon. Madam Justice and Political Science Sheila Greckol Professor Paul Weiler Alberta Court of Queen’s Bench Harvard University Dean Patricia Hughes Professor Manfred Weiss University of Calgary J.W. Goethe University

PRACTICE ADVISORY PANEL / COMITÉ CONSULTATIF PROFESSIONNEL

David Blair Gordon Petrie Vancouver, B.C. Fredericton, New Brunswick David Corry Ronald Pink Calgary, Alberta Halifax, Nova Scotia Donald McDougall Thomas Roper Halifax, Nova Scotia Vancouver, B.C. Gaston Nadeau Suzanne Thibodeau Montreal, Quebec Montreal, Quebec Frontmatter_v12n3 11/6/06 1:31 PM Page iv 2005 CanLIIDocs 206 Foreword 11/6/06 1:32 PM Page 271

Foreword

Michael Lynk & John Craig*

The third annual Labour Law Lecture and Conference took place at the University of Western Ontario on 14 and 15 October 2005. In keeping with the Conference theme, Administering Labour

Law, scholarly papers and commentaries were presented on issues 2005 CanLIIDocs 206 surrounding the administration and reform of Canada’s labour law system. This is the second of two special issues of the Canadian Labour and Employment Law Journal in which the papers presented at the Conference are being published. The purpose of the 2005 Labour Law Lecture and Conference was to debate the future direction of Canada’s labour law system in light of trends and pressures that have emerged in recent times not only within Canada, but also in the international sphere. One of the notable strengths of Canada’s labour relations community has been the willingness of its members to participate in scholarly discussions about the future of the industrial relations system. Labour law is one of the most academic fields of legal practice because of its deep roots in socio-economic policy, its direct links with human rights and constitutional law, and the constant influx of new ideas and scholarship from influential and respected academics and practitioners. The Journal itself is a reflection of this phenomenon. The Conference organizers were fortunate indeed to attract the participation of so many prominent members of the labour relations community. Diverse issues were discussed, including the impact of globalization on the labour market, the importance of human rights principles in achieving industrial justice, the modernization of labour

* Michael Lynk is an associate professor of law at the University of Western Ontario, where he teaches labour and constitutional law. John Craig is a partner in the Toronto office of Heenan Blaikie LLP, and an adjunct professor of law at the University of Western Ontario. They are the co-editors of Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2006), and the organizers of the labour law conference held each October at the University. Professor Lynk and Dr. Craig are the guest editors of this edition of the Canadian Labour and Employment Law Journal. Foreword 11/6/06 1:32 PM Page 272

272 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

law administration, the value of tripartism, and the substance of labour law itself. The views and ideas that were shared will no doubt contribute to the shaping of Canadian labour law in the coming years. In this issue, we offer eight papers by Conference participants. These papers can be grouped into three broad categories. First, there are three commentaries by distinguished members of the academic and labour relations communities, each of which looks to the past to predict the future role of labour law in Canada. David Mullan begins with the paper he presented as the 2005 Koskie Minsky University Lecturer in Labour Law. Dr. Mullan, one of 2005 CanLIIDocs 206 Canada’s foremost authorities on administrative law and Professor Emeritus at the Queen’s University Faculty of Law, explores the historically dominant position of labour law in the context of Canadian administrative law. He observes that today’s principles of judicial intervention in administrative processes are largely the product of judicial review decisions in the labour law field. Professor Mullan asks whether labour law has been the “tail” that “wags the dog” of administrative law, but he ultimately opines that administrative law has benefited, and can continue to benefit in the future, from principles developed in the labour law field. Professor Mullan’s paper is followed by a commentary by Beth Bilson, professor of law at the University of Saskatchewan and former Chair of the Saskatchewan Labour Relations Board. In her paper, she focuses on the concept of workers as “industrial citizens,” arguing that the attainment of democracy in the workplace remains an unresolved issue in the Wagner Act model of collective bargaining adopted by Canada. In a liberal-democratic society, Bilson writes, employee self-determination ought to be a governing value, and she suggests that the failure to fully achieve that goal might be remedied through labour law reforms such as permitting more broadly based bargaining units, expanding the range of topics dealt with in collective bargaining, and giving unions non-majority employee representation rights. Brian Burkett, a senior labour lawyer with Heenan Blaikie LLP and counsel to the Canadian Employers Council, provides a third commentary. Mr. Burkett posits that tripartism must be treated as a fundamental principle in Canadian labour relations, and that labour law reform must proceed on the basis of tripartite consultation as Foreword 11/6/06 1:32 PM Page 273

FOREWORD 273

opposed to one-sided decision-making by governments, based on political opportunism. Drawing on Canada’s experience as a member of international tripartite bodies such as the International Labour Organization and the Inter-American Conference of Ministers of Labour, and taking into account historical domestic reform processes at the federal and provincial levels, Mr. Burkett concludes that the interests of both employers and workers are best served by a long- term commitment to the tripartite model. The second set of papers addresses the role of empirical research and statistical analysis in understanding and reforming 2005 CanLIIDocs 206 labour law. Sara Slinn, of the Faculty of Law, Queen’s University, argues in her paper that empirical social science research can be an effective tool in checking the assumptions, inferences and untested beliefs on which traditional legal reasoning is based. In her view, there is often a discrepancy between labour law in theory, and its practical application and impact in the workplace. Understanding this discrepancy is an essential first step in formulating, applying and evaluating labour law. On this basis, Professor Slinn calls on labour law and industrial relations scholars to engage in social science research and to adopt a multidisciplinary approach in their work. Chris Riddell’s paper, which follows and complements Professor Slinn’s article, demonstrates the relevance of empirical research in addressing a specific issue, namely, the adequacy of union certification procedures as a mechanism for measuring the level of union support in a workplace. Professor Riddell, of the Queen’s University School of Policy Studies, outlines the research that has been conducted on the outcomes of certification applications in Canada under both card check and mandatory vote procedures. Trade union success in the certification process appears to be more likely under the former than the latter, and Professor Riddell considers whether the research offers clues to explain the divergent union success rates. In a similar vein, Professor Jean Bernier of Laval University’s Industrial Relations Department considers the growing importance of non-standard work relationships as an issue of concern in Canadian labour law. Referring to statistical analysis, Professor Bernier tracks the growth of non-standard work over time. He suggests that labour law and policy have failed to address this phenomenon, despite the Foreword 11/6/06 1:32 PM Page 274

274 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

pressing need for regulation to ensure that non-standard workers have access to social protections. Professor Bernier outlines potential solutions to the problems associated with non-standard work, which include broadening the statutory definition of “employee” to cover workers in non-standard employment relationships, and enacting legislation to provide non-standard workers with the same social protections given to other workers. This issue of the Journal is completed by two other papers from the Conference, both of which address the role of human rights in labour arbitration. Fay Faraday, a partner with Cavalluzzo Hayes 2005 CanLIIDocs 206 Shilton McIntyre & Cornish LLP, focuses her analysis on the question of human rights remedies at labour arbitration. If arbitrators are to provide effective redress for human rights violations, she contends, the full range of human rights remedies granted by human rights commissions must be available at arbitration as well. Ms. Faraday further argues that the “public” nature of human rights is incompatible with an approach that would give exclusive jurisdiction over the enforcement of those rights to a “private” forum such as labour arbitration. She is therefore of the view that jurisdiction as between arbitrators and human rights tribunals should continue to be concurrent. In contrast, Peter Gall, Andrea Zwack and Kate Bayne, of Heenan Blaikie LLP, argue against a concurrency model, citing the waste of resources and the potential for inconsistent outcomes when unionized employees are permitted to pursue human rights claims both at arbitration and before a human rights tribunal. Moreover, they contend, allowing unionized employees to have resort to a human rights process without the participation of the union undermines the union’s statutory role as exclusive bargaining agent. In their view, therefore, human rights issues arising in a unionized workplace should fall within the exclusive jurisdiction of a labour arbitrator. Some of the benefits of an exclusive jurisdiction approach, according to the authors, include the ability to tap into the unique expertise of arbitrators in resolving workplace disputes, and the fact that decisions would be binding on all employees in the bargaining unit, not just the complainant. Only where the union itself is named as a respondent and cannot be relied upon to advance the grievance through the arbitration process, should an exception to the rule of exclusive arbitral jurisdiction be recognized. Foreword 11/6/06 1:32 PM Page 275

FOREWORD 275

In our view, the papers in this issue, along with those published in issue 12(2) of the Journal, make a significant contribution to the ongoing debate on important questions of labour law administration and reform. They demonstrate that labour and employment law scholarship in Canada is alive and well, and that the process of reform in this field continues to benefit from new ideas and vigorous debate. 2005 CanLIIDocs 206 Foreword 11/6/06 1:32 PM Page 276 2005 CanLIIDocs 206 Mullan 11/6/06 1:33 PM Page 277

Labour Law and Administrative Law: Still the Tail that Wags the Dog?

David J. Mullan*

As the author points out, labour law has been the most important influence on the development of administrative law in Canada over the past 60 years, both in the area of process and in the principles of judicial review. The 2005 CanLIIDocs 206 author sets out a number of reasons for labour law’s dominance, noting in particular the contribution of legal scholars, labour board chairs, arbitrators and judges (above all, Bora Laskin) in advocating the institutions of the modern administrative state and mounting sustained criticism against excessive intervention by the courts. The author also inquires whether the centrality of labour law in setting the contours of the administrative law field has adequately served the needs of other sectors involved in administrative law. In his view, while certain recent developments (such as the one-stop shopping approach espoused in Weber) are problematic, other administrative sectors would benefit from an even greater adoption of principles accepted in labour law. Most notably, labour law has provided general administrative law with the theory of deference and the “pragmatic and functional” approach to determining the standard of review. In closing, the author takes stock of some of the challenges that courts and tribunals can be expected to face in the ongoing evolution of administrative processes, especially those arising from the application of the Charter and international instruments.

1. INTRODUCTION

It is readily apparent from even a cursory overview of Canadian administrative law over the past 60 years that the regulation of labour relations has been the laboratory for much of the experimentation

* Emeritus Professor, Faculty of Law, Queen’s University, Kingston, Ontario. This paper is based on the third Annual Koskie Minsky Lecture on Labour Law, delivered at a conference entitled Administering Labour Law at the University of Western Ontario. I am very grateful to Koskie Minsky and the Faculty of Law at the UWO for inviting me to deliver this lecture. It is a true honour to follow in the steps of the first two lecturers in this series: Professor Harry Arthurs and former Supreme Court of Canada Justice, Frank Iacobucci. My special thanks to Craig Flood for his very generous introduction and to Professor Michael Lynk for all the efforts he made to ensure that my travel to and stay in London went absolutely smoothly. Mullan 11/6/06 1:33 PM Page 278

278 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

and innovation that has characterized the evolution of this field of law. This has been the case not only in the domain of administrative process, but also in the development of standards that govern the relationship between the administrative state and the courts. What is also clear is that the evolution of both labour law and administrative law has not been steady and uncontroversial, but rather the product of great contention and controversy, especially in the courts. In this paper, I want to engage with three themes in particular:

(1) Why has labour law been the dominant subset of Canadian 2005 CanLIIDocs 206 administrative law in setting the current contours of that field? (2) Has that dominance all been for the good in its influence on other regulatory domains, or has the “tail” that is labour law too vigorously “wagged the larger dog” that constitutes the rest of administrative law? (3) To what extent will labour law continue to exert influence over future developments in general administrative law theory and practice?

2. THE INDICIA OF INFLUENCE AND DOMINANCE

At the outset, it is useful to recall the particular contributions of labour law to Canadian administrative law. What follows is in no sense meant to be a comprehensive list but, nonetheless, it is strik- ingly illustrative. In the world of administrative process, among the lessons learned from labour law are the following:

(1) The virtues of the tripartite tribunal model, particularly as a method of co-opting antagonists into taking responsibility for making decisions and resolving disputes.1 (2) The commitment to efficient process and the timely resolution of disputes through procedural flexibility and a relaxing of the court rules of evidence, a particular feature of many labour board and arbitration hearings.

1 See H.W. Arthurs, “The Three Faces of Justice: Bias in the Tripartite Tribunal” (1963), 28 Sask. Bar Rev. 147. Mullan 11/6/06 1:33 PM Page 279

LABOUR LAW AND ADMINISTRATIVE LAW 279

(3) The sophisticated nature of procedural options available to tribunals and the parties as reflected, for example, in the current procedural rules of the Ontario Labour Relations Board.2 (4) The development of institutional decision-making processes, manifested most dramatically in the commitment to whole- tribunal discussion of issues before particular panels of labour boards.3 (5) The acceptance of one-store shopping as a desirable principle for all aspects of workplace disputes. (6) More generally, the legitimation of special purpose, expert tri- 2005 CanLIIDocs 206 bunals (functioning largely apart from and often in very different ways than the regular courts) as an essential part of a relatively comprehensive scheme for the regulation of a critical aspect of the economy of the country and the lives of its citizens.

For many in the labour law community, judicial review has been the bane of labour law’s existence for well over 60 years. Nonetheless, today’s principles of judicial intervention in the administrative process are the product of lessons learned in the contentious world of judicial review of labour boards and boards of arbitration. The highlights are many!

(1) Even today, the foundational case for discerning the standard of review remains C.U.P.E., Local 963 v. New Brunswick Liquor Corp.4 There, building upon an earlier labour law judgment,5 Dickson J. (as he then was) repudiated the Supreme Court of Canada’s previous interventionist approach to judicial review, particularly in labour law cases; cautioned the courts against too ready a classification of an issue as jurisdictional and thereby

2 As authorized by the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A., ss. 110(20)(b), 110(21). 3 The history of the development of this procedure by the Ontario Labour Relations Board is set out in Consolidated-Bathurst Packaging Ltd. and I.W.A., Local 2-69 (1983), 5 Can. L.R.B.R. (N.S.) 79 (Ont. L.R.B.). This was the ruling on which the judgment of the Supreme Court of Canada vindicating the practice was based. 4 [1979] 2 S.C.R. 227. 5 S.E.I.U., Local No. 333 v. Nipawin District Staff Nurses Ass’n, [1975] 1 S.C.R. 382. Mullan 11/6/06 1:33 PM Page 280

280 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

subject to correctness review; and held that on issues within a tribunal’s jurisdiction, at least where there was privative clause protection, the standard of review should be that of patent unreasonableness. (2) New Brunswick Liquor6 presaged the development of the now almost ubiquitous “pragmatic and functional” approach to discerning the appropriate standard of review, an approach that also originated in a labour law case: the judgment of Beetz J. in U.I.E.S., Local 298 v. Bibeault.7 (3) The approach of New Brunswick Liquor was also reinforced and 2005 CanLIIDocs 206 developed in a series of other Supreme Court decisions, including Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board;8 Canada Labour Relations Board v. Halifax Longshoremen’s Ass’n9 (extending it to the remedial aspects of a labour board’s authority); C.J.A., Local 579 v. Bradco Construction Ltd.10 (one of a series of Supreme Court judgments applying New Brunswick Liquor to the review of arbitral awards as well as board rulings); Lester (W.W.) (1978) Ltd. v. U.A., Local 74011 (integrating the approach into review of factual findings); C.A.I.M.A.W. v. Paccar of Canada Ltd.;12 Royal Oak Mines Inc. v. Canada (Labour Relations Board);13 Toronto (City) Board of Education v. O.S.S.T.F., District 15;14 C.U.P.E., Local 301 v. Montreal (City);15 and, more recently, Ivanhoe Inc. v. U.F.C.W., Local 50016 (applying the approach in Bibeault but, in effect, holding

6 Supra, note 4. 7 [1988] 2 S.C.R. 1048. 8 [1984] 2 S.C.R. 412. 9 [1983] 1 S.C.R. 245. 10 [1993] 2 S.C.R. 316. See also Douglas Aircraft Co. of Canada Ltd. v. McConnell (1979), [1980] 1 S.C.R. 245; Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178; A.U.P.E., Branch 63 v. Olds College (Board of Governors), [1982] 1 S.C.R. 923; and Dayco (Canada) Ltd. v. C.A.W., [1993] 2 S.C.R. 230. 11 [1990] 3 S.C.R. 644. 12 [1989] 2 S.C.R. 983. 13 [1996] 1 S.C.R. 369. 14 [1997] 1 S.C.R. 487. 15 [1997] 1 S.C.R. 793. 16 [2001] 2 S.C.R. 565. Mullan 11/6/06 1:33 PM Page 281

LABOUR LAW AND ADMINISTRATIVE LAW 281

that the actual application of the pragmatic and functional test in that case to reach a correctness standard of judicial review should no longer be regarded as sound). (4) Weber v. Ontario Hydro17 remains the leading authority for the proposition that one-stop shopping is the operating principle for labour arbitration, and extends to arbitral determination of Charter questions. Indeed, the capacity of tribunals to consider Charter questions (including the constitutional validity of the tribunal’s constitutive statute) also found its origins in a labour board case: Cuddy Chicks Ltd. v. Ontario (Labour Relations 2005 CanLIIDocs 206 Board).18 (5) While Baker v. Canada (Minister of Citizenship and Immigration)19 is the first explicit Supreme Court recognition that the common law can require tribunals to provide reasons for their decisions, the Nova Scotia Court of Appeal had already established that principle in a labour board case, Future Inns Canada Inc. v. Nova Scotia (Labour Relations Board).20 (6) The practice of whole-tribunal meetings to consider emerging or troubling issues that had arisen before a panel of that tribunal achieved Supreme Court recognition in a labour board case: I.W.A., Local 2-69 v. Consolidated-Bathurst Packaging Ltd.21 Subsequently, the practice was given additional protection from judicial intervention in Ellis-Don Ltd. v. Ontario (Labour Relations Board).22 (7) It was also in the context of labour law that the courts started to relax the prohibition against hearing tribunals in judicial review proceedings and statutory appeals from their decisions. By inference in Consolidated-Bathurst,23 and explicitly in both Bibeault v. McCaffrey24 and Paccar,25 the Supreme Court

17 [1995] 2 S.C.R. 929. 18 [1991] 2 S.C.R. 5. 19 [1999] 2 S.C.R. 817. 20 (1997), 160 N.S.R. (2d) 241 (C.A.). 21 [1990] 1 S.C.R. 282. 22 [2001] 1 S.C.R. 221. 23 Supra, note 21. 24 [1984] 1 S.C.R. 176. 25 Supra, note 12. Mullan 11/6/06 1:33 PM Page 282

282 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

recognized that tribunals could be entitled to standing (albeit limited in its scope) in judicial review proceedings. (8) A pair of labour law judgments 50 years apart feature as two of the most significant Canadian authorities on review for abuse of discretion: Smith & Rhuland Ltd. v. The Queen,26 in 1953, one of a series of judgments27 in which Rand J. applied implicit constitutional principles to restrain the exercise of seemingly open- ended discretion by statutory authorities (in that instance, a labour board); and, in 2003, C.U.P.E. v. Ontario (Minister of Labour),28 where the Court constrained the exercise of ministe- 2005 CanLIIDocs 206 rial discretion by reference to underlying labour law principles and culture. (9) Labour law cases were also among the early examples of the Supreme Court’s exploration of the intersection between common law judicial review principles and the review of exercises of discretion that had an impact on rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms — most notably, Royal Oak Mines29 (in the context of the exercise of remedial powers), and Slaight Communications Inc. v. Davidson30 (on the relationship between patent unreasonableness review and s. 1 justification of Charter violations).

What is obvious from this incomplete catalogue is that labour law cases have played a highly significant role in many of the cut- ting-edge issues that have arisen in Canadian judicial review law, especially in the field of substantive (as opposed to procedural) review. It is also important to recall in a retrospective paper such as this that, beyond these discrete examples of labour law’s intersection with and influence on the common law principles of judicial review, labour relations legislation also provided the setting for the development of an approach to ss. 96-101 of the Constitution Act, 1867 which gave legitimacy to the whole enterprise of justice through administrative tribunals. This was, of course, in the foundational

26 [1953] 2 S.C.R. 95. 27 And, most famously, in Roncarelli v. Duplessis, [1959] S.C.R. 121. 28 [2003] 1 S.C.R. 539. 29 Supra, note 13. 30 [1989] 1 S.C.R. 1038. Mullan 11/6/06 1:33 PM Page 283

LABOUR LAW AND ADMINISTRATIVE LAW 283

advice given by the Judicial Committee of the Privy Council in 1949, in Saskatchewan (Labour Relations Board) v. John East Iron Works Ltd.31 The contrast between the old and the new approaches is amply clear in the differences of philosophy revealed in the judgment of Martin C.J.S. in the Saskatchewan Court of Appeal32 and the advice of the Privy Council reversing the judgment below, advice authored by Lord Simonds. According to Martin C.J.S.: “Normally, the administration of justice should be carried on through the established courts, and the Province . . . cannot substitute for the established 2005 CanLIIDocs 206 courts any other tribunal to exercise judicial functions.”33 In contrast, Lord Simonds was much more permissive in the scope of the power that he was willing to attribute to the provinces. The starting-point was not one that denied the provinces capacity to establish adjudicative tribunals. Rather, the initial question was whether legislators in 1867, placed in contemporary social and economic conditions, would have seen it “expedient to establish just such a specialized tribunal....”34 Was this the kind of task that you would want only persons with the quality of superior court judges to perform? In a labour relations board setting, Lord Simonds unequivocally stated that “to this question only one answer can be given.”35 What is, of course, ironic is that it was 30 years before the ram- ifications of this ruling by an English-constituted court achieved full recognition in Canada. Though there were earlier signs (especially after Bora Laskin became a justice of the Supreme Court of Canada), it was only in 1979 and the judgment of the Court in New Brunswick Liquor36 that provincially-established labour relations boards achieved full legitimacy in the eyes of the Court, as reflected in respect for both their expertise and the legislative choice of them as the primary vehicles for the furtherance of legislated labour relations

31 [1949] A.C. 134 (P.C.). 32 [1948] 1 D.L.R. 652 (Sask. C.A.). 33 Ibid., at p. 664, quoting Hudson J. in Alberta (Attorney General) v. Atlas Lumber Co. Ltd., [1941] S.C.R. 87, at p. 109. 34 Supra, note 31, at p. 151. 35 Ibid. 36 Supra, note 4. Mullan 11/6/06 1:33 PM Page 284

284 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

policy. As has been extensively documented elsewhere,37 until that point, Canadian judges (including those on the Supreme of Court of Canada) continued to be protective of their own jurisdiction over questions of statutory interpretation at the expense of these upstart boards and arbitrators. Over the course of those three decades, labour law was at the forefront of administrative law, but not in any sense that was positive. There was little recognition in the case law of the important contributions that labour tribunals were making to the delivery of administrative justice and the preservation of industrial peace. Rather, it is not 2005 CanLIIDocs 206 too much of a caricature to see many of the courts of this period as fighting a rearguard action not only to preserve their own prerogatives, but also to keep in check the socialist tendencies of left-leaning labour boards to promote the cause of labour against the prerogatives of management. Indeed, one tends to think of this whole period as an era when, in general, the courts were in no sense deferential to the expertise of statutory decision-makers or to the legislative choice of the mechanisms for achieving justice and advancing social policies. Nonetheless, as Peter Hogg made clear in the early 1970s,38 the statistics on judicial intervention were not as bad as some of the rhetoric might have led one to believe. What is also clear is that the courts were quite reluctant to intervene in certain domains: ministerial decision-making (as evidenced by Calgary Power v. Copithorne39);

37 See, for example, J.F.W. Weatherill, “Labour Relations and the Courts” (1966), 21 Industrial Relations 28; H.W. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’s Second Century” (1967), 45 Can. Bar Rev. 786; H.W. Arthurs, “Re-Thinking Administrative Law: A Slightly Dicey Business” (1979), 17 Osgoode Hall L.J. 1; H.W. Arthurs, “Protection against Judicial Review” (1983), 43 R. du B. 277; P.C. Weiler, “The ‘Slippery Slope’ of Judicial Intervention: The Supreme Court of Canada and Canadian Labour Relations 1950-1970” (1971), 9 Osgoode Hall L.J. 1; P.C. Weiler, In the Last Resort (Toronto: Carswell/Methuen, 1974), particularly Chapters 2 and 5; and G.W. Adams, “Grievance Arbitration and Judicial Review in North America” (1971), 9 Osgoode Hall L.J. 443. 38 “The Supreme Court and Administrative Law 1949-71” (1973), 11 Osgoode Hall L.J. 187. 39 [1959] S.C.R. 24. Mullan 11/6/06 1:33 PM Page 285

LABOUR LAW AND ADMINISTRATIVE LAW 285

revenue cases; and the major regulatory tribunals (such as the Canadian Transportation Commission and the Board of Broadcast Governors, and its successor the Canadian Radio-television and Tele- communications Commission). However, there was a difference between these decision-makers and labour tribunals (and human rights tribunals,40 for that matter). The courts saw the former as politically accountable through such fading devices as ministerial responsibility in the case of Ministers of the Crown and senior civil servants and, in the instance of many major regulatory agencies, appeals to Cabinet. Labour boards and arbitrators were accountable to no one 2005 CanLIIDocs 206 but the courts, and had to be brought to heel.

3. THE AGENTS OF CHANGE

Given this parlous state of affairs, how was it that labour law came to achieve respect and ultimately dominance in establishing the current functional culture of Canadian administrative law? A range of responses might be given to that question. The “new” processes of administrative justice exemplified by labour tribunals took some getting used to. Participant acceptance of the system grew substantially — an inevitable product of longevity. More generally, there was less suspicion of and hostility towards parallel justice systems and greater acceptance of the institutions and instru- mentalities of the administrative state. However, this does not provide a total explanation. Sustained advocacy of the merits of the system, and criticism of intrusive judicial review, made their mark. The field of labour law and labour relations showed a remarkable capacity over that same period to attract the brightest and the best. Legal education and a more varied, social science-influenced curriculum had a significant role to play. Eventually, also, many with experience of administrative justice in the labour law way became judges. Indeed, there was considerable overlap of personnel among these categories. While John Willis had been railing against judicial interference with the agents of the emerging administrative state for a number of

40 As exemplified by Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756. Mullan 11/6/06 1:33 PM Page 286

286 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

years,41 it was Bora Laskin who brought the particular concerns of labour law to prominence, especially in a seminal article published in 1952, “Certiorari to Labour Boards: The Apparent Futility of Privative Clauses.”42 Much of Laskin’s writing (both as a judge and as an academic) was characterized by his meticulous attention to detail and was not always easy to parse at first reading. However, in the following passage, he was unusually blunt and indeed much more in the mode of his always pungent colleague, Willis:

Some of the cases that have come before the courts suggest that the chief con- 2005 CanLIIDocs 206 cern is not a vindication of any high legal or moral principle but simply a resistance to the legislative policy of compulsory collective bargaining, cou- pled with an attempt to use the courts as an instrument of such resistance.43 As an educator, arbitrator and judge, Laskin was highly influential in the evolution of labour law and the development of its centrality in the whole field of administrative law.44 Even though as a judge, he ultimately recanted from one of the positions he espoused in his 1952 article (arguing against the existence of constitutional protection for judicial review of administrative action45), it was his judgment for the Ontario Court of Appeal in Metropolitan Life46 that became the icon for the fight against the then-dominant interventionist policy of the Supreme Court of Canada.47 The very year (1970) that the Supreme Court reversed his judgment in that case was the year in which Prime

41 See, in particular, J. Willis, “Administrative Law and the British North America Act” (1939), 53 Harvard L.R. 251. 42 (1952), 30 Can. Bar Rev. 986. 43 Ibid., at pp. 1002-1003. 44 For a fuller evaluation, see D.M. Beatty & B.A. Langille, “Bora Laskin and Labour Law: From Vision to Legacy” (1985), 35 U.T.L.J. 672. 45 In Crevier v. Quebec (Attorney General), [1981] 2 S.C.R. 220, Laskin C.J.C. accepted that ss. 96-101 of the British North America Act, 1867 (as it then was) provided the constitutional guarantee of judicial review of statutory authorities for jurisdictional error, at least in the case of provincially-established tribunals. 46 R. v. Ontario Labour Relations Board, ex parte Metropolitan Life Insurance Co., [1969] 1 O.R. 412 (C.A.). 47 Indeed, it was the reversal of the Ontario Court of Appeal’s judgment that produced what many came to regard as the high point of Supreme Court intervention in and lack of deference towards the administrative process: Metropolitan Life Insurance Co. v. I.U.O.E., Local 796, [1970] S.C.R. 425. Mullan 11/6/06 1:33 PM Page 287

LABOUR LAW AND ADMINISTRATIVE LAW 287

Minister Pierre Trudeau appointed Laskin to the Supreme Court and, over the next decade, under his tutelage, gradually the tide turned. The disciples of Willis and Laskin were themselves part of the next generation of educators — advocates through scholarship, and participants as arbitrators, board members, and architects of legislative and tribunal change — who were at the forefront of labour law’s emergence as a dominant, creative force in administrative law. Harry Arthurs, Paul Weiler and George Adams epitomized the energy and intellectual power that went into the study and practice of labour law, and they were giants in the field. 2005 CanLIIDocs 206 Indeed, when I arrived as a graduate student at the Queen’s University Faculty of Law in the Fall of 1970, it was quite remarkable that, in a complement of just over 20 members, five counted themselves primarily as labour lawyers: Bernie Adell, Don Carter, Innis Christie, Morley Gorsky and Gordon Simmons. Each went on to make very significant contributions to the field as arbitrators, members and chairs of labour boards, and scholar-advocates. Indeed, Queen’s was not alone at this time, as evidenced by the fact that a similar list could be drawn up for the University of Western Ontario faculty of those days, starting with Earl Palmer. And, of course, the talent was by no means confined to the world of academia. One need look no further than to some of the early chairs of the Ontario board (Jacob Finkelman, J.F.W. Weatherill) and preeminent counsel such as Andrew Brewin, D. Gordon Blair and Ian Scott. In their turn, these practitioners, tribunal members, and academics spawned a whole new generation of labour lawyers and scholars who carried the torch for the system. It was a field that quite literally attracted many of the brightest and the best. According to Iacobucci J. in Canada (Director of Investigation and Research) v. Southam Inc.,48 expertise “is the most important of the factors that a court must consider in settling on a standard of review.”49 For this proposition, he relied mainly on a similar statement by Sopinka J. in a labour law case, C.J.A., Local 579 v. Bradco Construction Ltd.50 In assessing how much deference a labour arbitrator receives within the parameters of the pragmatic and functional

48 [1997] 1 S.C.R. 748. 49 Ibid., at para. 50. 50 Supra, note 10. Mullan 11/6/06 1:33 PM Page 288

288 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

approach, Sopinka J. wrote, “the expertise of the tribunal is of the utmost importance....”51 For these purposes, at least in terms of the courts’ pronouncements, expertise tends to be treated as a relatively abstract concept assessed on the basis of the nature of the assigned task that is the subject of the judicial review application and the required qualifications (if any) that the decision-maker must possess. Seldom do the courts inquire into the actual skills and abilities of the decision-maker whose decision is under scrutiny.52 Nonetheless, in the realpolitik of judicial review, it is undoubtedly the case that judges are influenced by their general awareness of the competence 2005 CanLIIDocs 206 and skill of members of particular tribunals and, more particularly, by the quality of their product. “By the repute of your personnel and the quality of their decisions, will we judge them!” On these scores, labour boards and labour arbitrators have consistently earned their stripes. It is also the case that the labour law community guards its successes very carefully. In that regard, the most prominent recent example has to be the general sense of outrage among most labour lawyers that followed the 2004 judgments of the Supreme Court of Canada in Voice Construction Ltd. v. Construction & General Workers’ Union, Local 9253 and A.U.P.E. v. Lethbridge Community College.54 The possible inference from both these decisions that the Supreme Court was backing off from its commitment to patent unreasonableness as the standard by which to review questions of law determined by arbitrators produced considerable public disquiet. In Ontario, it can also be seen in the union resistance to the Harris government’s interventions in the labour relations arena, a resistance which culminated in the quite remarkable success in C.U.P.E. v. Ontario (Minister of

51 Ibid., at p. 335. 52 See, however, the judgment of Bauman J. in Int’l Forest Products Ltd. v. British Columbia (Forest Appeals Commission) (1998), 12 Admin. L.R. (3d) 45 (B.C.S.C.), at paras. 32-33, in which the judge received biographical details of the members of the tribunal for the purpose of the expertise element of the pragmatic and functional analysis and went on to accept that they were “highly trained” and possessed “years of experience relevant to their responsibilities.” Needless to say, this is controversial territory. 53 [2004] 1 S.C.R. 609. 54 [2004] 1 S.C.R. 727. Mullan 11/6/06 1:33 PM Page 289

LABOUR LAW AND ADMINISTRATIVE LAW 289

Labour),55 challenging one important aspect of the “new way of doing things” in health care sector interest arbitrations. There are also academic watchdogs as, for example, in the case of Brian Etherington’s 1989 article, “Arbitration, Labour Boards and the Courts in the 1980s: Romance Meets Realism,”56 in which he blew the whistle on the Supreme Court for backsliding in its policy of deference to labour tribunals. “They are saying one thing and doing another.” It also finds expression in the burgeoning literature on arbitration’s becoming the adjudicative superstore of the unionized workplace, the forum for the resolution of all workplace-related 2005 CanLIIDocs 206 disputes.57

4. SHAPING AND INFLUENCING OTHER SECTORS OF THE ADMINISTRATIVE PROCESS

There is always a danger that when overarching principles are developed or expounded in a discrete area of law, they will not accommodate adequately the needs of other sectors. However, it is difficult to lay that charge against labour law. Indeed, in some instances, it is regrettable that principles accepted in that domain have not been endorsed more broadly. For example, courts are still not committed to the notion that, on occasion, it will be both appropriate and valuable for tribunals to appear on judicial review applications or statutory appeals as parties, and indeed to participate actively in argument about some of the matters in issue. Thus, the Federal Court, originally in its judgments58 and more recently in its rules,59 both denies tribunals party status and

55 Supra, note 28. 56 (1989), 68 Can. Bar Rev. 405. See also “An Assessment of Judicial Review of Labour Laws under the Charter: Of Realists, Romantics, and Pragmatists” (1992), 24 Ottawa L. Rev. 685. 57 The commentary on this issue is vast, particularly in labour relations circles. See A.K. Lokan & M. Yachnin, “From Weber to Parry Sound: The Expanded Scope of Arbitration” (2004), 11 C.L.E.L.J. 1, for a recent account, and footnote 1 of that article for a listing of some of the articles and case comments. 58 See, with particular reference to the then Canada Labour Relations Board, Ferguson Bus Lines Ltd. v. A.T.U., Local 1374, [1990] 2 F.C. 586 (C.A.). 59 See Federal Court Rules, SOR/1998-106, as amended by SOR/202-217 and SOR/2004-283, Rules 109 (intervention) and 303 (parties). Mullan 11/6/06 1:33 PM Page 290

290 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

is generally parsimonious in allowing tribunals intervener status to speak to or defend their rulings. This ignores the value that can come from such participation, a value recognized by the Supreme Court in two important labour law cases60 and, more recently, expounded upon and evaluated in a context-sensitive way, again in a labour law context, by Robertson J.A. of the New Brunswick Court of Appeal61 and, in a different context, by Goudge J.A. of the Court of Appeal for Ontario.62 Another field where much can still be learned from labour law is procedural flexibility. By recognizing the desirability of providing 2005 CanLIIDocs 206 procedural options, the rules of the Ontario Labour Relations Board63 set a very useful example for other tribunals that strive to keep control of their dockets, cater to varied constituencies or stakeholders, and encounter a broad range of disputes. Such procedural flexibility also can serve as a healthy corrective to any tendency towards over- judicialization of tribunal processes.64 Some commentators have seen entire-tribunal discussion of issues that emerge in the context of particular hearings as a poor excuse for open, transparent notice and comment-style rulemaking. However, here too, in charting the course for the existence of this option and setting rules by which these discussions take place, labour law has established a practice that can contribute to the better resolution of issues and greater coherence in multi-member tribunals’ jurisprudence. In fact, there are some developments in general administrative law that find their origins in labour law cases that I do find rather more problematic, both in the labour law arena and in their extension to other decision-making processes. In particular, I refer to Weber65

60 Bibeault v. McCaffrey, supra, note 24, and Paccar, supra, note 12. 61 C.J.A., Local 1386 v. Bransen Construction Ltd. (2002), 249 N.B.R. (2d) 93 (C.A.). 62 Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner) (2005), 75 O.R. (3d) 309 (C.A.). 63 See, for example, the Ontario Labour Relation Board’s description of its “consultation” process, online at . 64 I develop this theme in more detail in “Tribunals Imitating Courts — Foolish Flattery or Sound Policy?” (2005), 28 Dal. L.J. 1. 65 Supra, note 17. Mullan 11/6/06 1:33 PM Page 291

LABOUR LAW AND ADMINISTRATIVE LAW 291

and its progeny66 and the concept of one-stop shopping for workplace disputes. Also, in part arising out of Weber but, more particularly (at least in the case of the constitutional validity of a tribunal’s constitutive legislation) out of Cuddy Chicks,67 as resurrected by Nova Scotia (Workers’ Compensation Board) v. Martin,68 is the court-mandated requirement that administrative tribunals take on broad constitutional (including Charter) questions that arise in proceedings before them. Clearly, the overall concept of one-store shopping and the obligation to deal with constitutional questions has resource implications for tribunals and may test their capacities. Both are for those reasons con- 2005 CanLIIDocs 206 troversial. In a world of convergence, to deploy terminology from the world of telecommunications regulation, is the preferred answer (for either courts or legislatures) the dominance and exclusivity of one regime? Or is there a place for overlapping jurisdictions (as, for example, in the domain of human rights in workplace settings) operating on principles of comity and mutual respect, with consumer choice of forum a powerful factor? Labour law’s biggest “gift” to administrative law, however, remains the theory of deference and the emergence of the pragmatic and functional approach to the determination of what in any particular instance is the appropriate standard of review. It was largely in the cauldron of labour law cases that this approach was articulated and its details settled upon. Even today, over 25 years after it was delivered, Dickson J.’s judgment in New Brunswick Liquor 69 makes out the case for deference in a coherent, convincing manner. It is perhaps less complete on the methodology to be used to determining how much deference to afford a tribunal — save, of course, in its insinua- tion of patent unreasonableness as the normal standard of review for labour board, privative clause-protected rulings on questions of law.

66 Notable among them are several labour law cases such as Regina Police Ass’n Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157; Goudie v. Ottawa (City), [2003] 1 S.C.R. 141; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185 (the Morin case); and, most recently, Bisaillon v. Concordia University, [2006] S.C.J. No. 19 (QL). 67 Supra, note 18. 68 [2003] 2 S.C.R. 504. 69 Supra, note 4. Mullan 11/6/06 1:33 PM Page 292

292 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

However, Beetz J. filled that gap in Bibeault70 with the various elements of the pragmatic and functional analysis, and these too seemed eminently sensible criteria by which to determine the level of deference, if any. Nonetheless, perhaps the signs of trouble ahead were already there when, in that very case, Beetz J. deployed the new approach to justify correctness review of a question of law that took its meaning from the labour law setting in which it arose.71 Recently, of course, much of the precise detail of what the Supreme Court now sees as an overarching principle enveloping all areas of judicial review has taken place in fields other than labour 2005 CanLIIDocs 206 law.72 Here, once again, questions have arisen, most notably in a couple of concurring judgments penned by LeBel J.,73 as to whether the pragmatic and functional analysis is appropriate for all contexts and all grounds of review. The various judges of the Supreme Court of Canada have also contributed to a sense of confusion and at times anger on the part of lawyers by their failure to speak with one voice on the precise contours of the various elements of the pragmatic and functional test.74

70 Supra, note 7. 71 For contemporary commentary, see B.A. Langille, “Judicial Review, Judicial Revisionism and Judicial Responsibility” (1986), 17 R.G.D. 169. 72 See the judgment of McLachlin C.J.C. in Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 222, at para. 21, where she pro- pounds the overarching nature of the pragmatic and functional standard of review analysis, and emphasizes the importance of courts’ conducting that analysis as a first step in every judicial review application and statutory appeal. 73 In a lengthy concurring judgment in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, at paras. 60-134, LeBel J. (Deschamps J. concurring) advocated that the number of standards of review be reduced to two and that patent unreasonableness be eliminated, principally on the bases that the existing regime of three standards was too complicated and that the Court had had great difficulty in articulating the difference between the standards of unreasonableness and patent unreasonableness. Subsequently, in a much shorter concurring judgment in Voice Construction, supra, note 53, at paras. 40-42, he reiterated this concern (Deschamps J. again concurring). However, in more recent cases, he has not returned to this theme. 74 In my view, the domain where the Supreme Court of Canada has introduced most confusion and certainly opened the doors for a resurrection of inappropriate interventionism is with respect to the characterization of questions of law. Since Bibeault, supra, note 7, it has been clear that a critical factor in the Mullan 11/6/06 1:33 PM Page 293

LABOUR LAW AND ADMINISTRATIVE LAW 293

The nuances (and sometimes, more than the nuances) will be different, depending on which judge of the Court authors the standard of review analysis. This has contributed to a sense on the part of some that the approach is unworkable (a sentiment with which I disagree), and that the Court had not been consistent in its outcomes on the scope of deference and the standard of review to be applied (an opinion that I do share). However, one thing is clear. There is simply no basis for a return to the sterile conceptual morass that was the state of the law on the scope of judicial review prior to New Brunswick Liquor.75 To that 2005 CanLIIDocs 206 point, at least in its post-Second World War history, the Supreme Court, under the guise of an ostensibly neutral concept of “jurisdiction” (embodied in the phrase “preliminary and collateral error”) manipulated the scope of judicial review to its own ends, contrary to the intention of the legislature as expressed in privative clauses and other ways. It was an approach that demeaned the value of systems of administrative justice as genuine and frequently better alternatives than the courts.

pragmatic and functional analysis when it comes to the standard of review for a question of law has been whether that question of law is one of general law or another regime of law outside the decision-maker’s assigned area, on the one hand, or, on the other, an issue for the tribunal or one within the domain the legislature has delegated to the decision-maker. However, in some judgments of the Court, notions of “pure” questions of law or questions of law the determination of which will have precedential value within the tribunal have begun to emerge. These are different concepts and they clearly can include questions that are clearly tribunal questions or ones within the tribunal’s expected area of competence. To the extent that there is a tendency on the part of some judges of the Court to treat such questions as generally deserving of correctness review, there is clearly the potential for less deference and greater interventionism. Two of the most problematic judgments in this regard are Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, and parts of the judgment in Southam, supra, note 48, at para. 36. The judges (Major J. and Iacobucci J.) who penned those judgments have now both retired and it remains to be seen whether these concepts continue to have purchase in the newly-con- figured Court. I discuss this dilemma in greater detail in “Establishing the Standard of Review — The Struggle for Complexity” (2004), 17 Can. J. Admin. L. & Prac. 59. 75 Supra, note 4. Mullan 11/6/06 1:33 PM Page 294

294 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

5. THE PATH AHEAD

Today, labour law does not have the same dominant position that it once did in the world of general administrative law. Other tribunals, particularly those involved in mass adjudication, have come close to parity in terms of the sophistication of their decision-making processes and the quality of their personnel. In part, that has been because they have learned the lessons and absorbed the experiences of labour law. In part, it has been because of the efforts of bodies such as the Canadian Council of Administrative Tribunals, the 2005 CanLIIDocs 206 Society of Ontario Adjudicators and Regulators, the British Columbia Council of Administrative Tribunals, and kindred bodies in other provinces to establish fine educational programmes for members of administrative tribunals and to increase exponentially the pro- fessionalism of the administrative justice system in this country. First-rate members are now attracted to a greater variety of tribunals than was probably the case previously. And, of course, this is no bad thing! It is also the case that the principles of judicial review will tend to be better-informed and have greater relevance when they are developed and tested against a broader range of statutory authorities. To that extent, it is not surprising that labour law has ceased to be the dominant venue for the development of those principles. Indeed, there is a sense in which it would be a relief to make the claim that, through the experience of exposure to a broader range of decision- making processes, Canadian judicial review law has reached a stage of maturity where the basic principles are settled, stable and relatively self-applying. However, that is probably too much to claim, as attested by the continuing struggles over the minutiae of the pragmatic and functional approach to the standard of review and the problem of potentially overlapping jurisdictions. That is regrettable in the sense that both issues, when they surface, detract reviewing courts from the merits of the dispute. They are adjectival issues that cause much frustration to litigants. Indeed, it is for that reason that there is some merit in moving towards a legislated solution to these matters, as well as to the capacity of tribunals to decide Charter questions.76 While I personally remain sceptical as to

76 As in the case of the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, legislating both standards of review for tribunals coming within its Mullan 11/6/06 1:33 PM Page 295

LABOUR LAW AND ADMINISTRATIVE LAW 295

the utility of trying to legislatively get rid of standard of review issues or to legislatively remove the capacity of tribunals to decide Charter questions, I am certainly attracted by the idea of a serious attempt to recognize legislatively the problem of duelling jurisdictions and to establish parameters and processes for the resolution of those difficulties, difficulties which have a particular resonance in the case of workplace disputes. It would be far too sanguine to believe that today’s more mature principles of judicial review (along with appropriately-crafted legislative responses to the some of the more intransigent problems of 2005 CanLIIDocs 206 the scope of review and the appropriate allocation of jurisdiction among tribunals) mean the end of growth and evolution in the domain of judicial review. To this point, Canadian judicial review law has barely scratched the surface of the appropriate relationship between judicial review and constitutional review when Charter and other constitutional dimensions (including underlying constitutional principles) are part of the framework within which tribunals and other decision-makers have to operate. Even conceding that s. 7 of the Charter might not have much purchase in the domain of labour law, labour tribunals exercise discretions that engage other Charter rights and freedoms. It is also the case that labour tribunals will increasingly be forced to come to terms with the relevance to their decisions of international instruments of various kinds to which Canada is a party. Refereeing the intersection between domestic statutory and traditional common law, on the one hand, and the demands of a much more intrusive regime of constitutional law and international law, on the other, is almost certainly going to be the major challenge of the next period of the evolution of our administrative processes. One can expect that, once again, labour law will form an integral part of that process of exploration, experimentation and accommodation.

reach and withdrawing from the vast majority of tribunals the capacity to deal with constitutional (including Charter) questions. Alberta has also legislated to restrict the ability of tribunals to determine constitutional issues: Administrative Procedures Amendment Act, S.A. 2005, c. 4. Mullan 11/6/06 1:33 PM Page 296 2005 CanLIIDocs 206 Bilson 11/6/06 1:34 PM Page 297

Future Tense: Some Thoughts about Labour Law Reform

Beth Bilson*

This paper takes as its focal point the relationship between the status of workers at work and their status as citizens in society as a whole. The author argues that, while the adoption of the Wagner Act model of collective bargaining 2005 CanLIIDocs 206 legislation was intended to foster democratic values in the workplace, and to enable workers to participate in workplace decision-making, the promise of that model has not been entirely fulfilled. Rather than becoming the normal vehicle for regulating employment relationships, the system has resulted in isolated and fragmented bargaining, an adversarial climate in labour relations, and the disenfranchisement of all workers except those who are able to establish a majority in a defined bargaining unit. To identify ways to counter this “democratic deficit,” the author reviews proposals for “members-only” unions, more broadly-based collective bargaining, and expansion of the subject matter of bargaining. She also considers the possibility of non-member participation — a controversial idea, but one that has been accepted in the context of health and safety, and pay equity, legislation. The author notes that there are formidable obstacles to enhanced worker participation, including entrenched cultural attitudes and the forces of globalization. However, she contends, given the “inherent value” of employee self-determination, it is too important a goal to abandon.

1. INTRODUCTION

In recent years, a number of commentators have expressed concern about the health of the current labour law regime in Canada. These commentators have painted a picture of a system in decline, characterized by stagnating union membership numbers and the inadequacy of collective bargaining to address many of the realities of the workplace, such as contracting out, capital flight, and an increasingly diverse workforce. They trace these problems to a variety of sources, including globalization, the reconfiguration of work, the decline of manufacturing and resource-based industries (the

* University of Saskatchewan. Bilson 11/6/06 1:34 PM Page 298

298 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

traditional base of collective bargaining), modern personnel practices, and neo-conservative political ideologies.1 Nonetheless, such writers do not deny that the institution of collective bargaining has, in some respects, served its original purposes well, or that there are examples of mature and sophisticated collective bargaining relationships which demonstrate this. Indeed, on the face of it, the anxieties seem somewhat overstated. After all, in Canada at least, union membership has remained fairly steady and unions have continued to play an influential role in many workplaces. Moreover, the labour relations boards administering collective 2005 CanLIIDocs 206 bargaining legislation have demonstrated the capacity on occasion to address current issues, and to fashion remedies that overcome the challenges posed by changes in corporate organization or the config- uration of work. Labour relations boards are well equipped, for example, to identify new kinds of employment relationships and to focus on substance rather than form in deciding whether someone should be treated as an employee. They have, in cases such as Westinghouse Canada.2 and Consolidated-Bathurst Packaging,3 provided remedies to unionized workers where they concluded that the employer had closed the business in order to avoid collective bargaining obligations. In most jurisdictions, the labour board has a mandate to require an employer to bargain with the union concerning

1 For a discussion of some of these factors, see H. Arthurs, “The New Economy and the New Legality: Industrial Citizenship and the Future of Labour Arbitration” (1999), 7 C.L.E.L.J. 45; and R. Adams, “A Pernicious Euphoria: 50 Years of Wagnerism in Canada” (1996), 3 C.L.E.L.J. 321. For a critique of the thesis outlined in Arthurs’ article, see M. Coutu, “Industrial Citizenship, Human Rights and the Transformation of Labour Law: A Critical Assessment of Harry Arthurs’ Legalization Thesis” (2004), 19 C.J.L.S. 73. For many American commentators, the crisis seems even more acute; see, for example, C.W. Summers, “Questioning the Unquestioned in Collective Labor Law” (1997-1998), 47 Catholic U.L. Rev. 791. 2 Westinghouse Canada Ltd. and U.E., Local 504, [1980] 2 Can. L.R.B.R. 469 (Ont. L.R.B.). 3 Consolidated-Bathurst Packaging Ltd. and C.P.U., Local 595, [1982] 3 Can. L.R.B.R. 324 (Ont. L.R.B.). Note that in “Workplace Democracy and Market Reconstruction: An Agenda for Legal Reform” (1988-1989), 38 Catholic U.L. Rev. 1, at pp. 56-57, Karl Klare discusses the potential use of common law tort remedies in the context of plant closure and capital flight. Bilson 11/6/06 1:34 PM Page 299

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 299

technological changes affecting significant numbers of employees.4 Labour tribunals, in general, have been granted considerable deference and latitude by the courts; the Supreme Court of Canada has repeatedly expressed confidence in the capacity of those tribunals to manage their specialized statutory mandate in a way that requires relatively little scrutiny by judges.5 Indeed, building on this mandate, the Court has ruled that labour tribunals are required to consider labour relations issues in a framework which takes into account human rights and other employment-related legislation.6 The Court has further acknowledged that there may be constitutional support 2005 CanLIIDocs 206 for access to collective bargaining by employees,7 and that certain incidents of collective bargaining, such as peaceful picketing, may also be constitutionally protected.8 In response to the challenges facing them, labour organizations have to some degree shown an ability to adapt to new circumstances. For example, the United Steelworkers of America, recognizing the membership decline in their traditional base, have organized employees in different sectors. Other unions, such the Communications, Energy and Paperworkers, represent a merger of several organizations, which joined their resources in an effort to meet changed circumstances. Many organizations have shown a new interest in campaigning for human rights and equality, or in establishing the basis for effective international activity with partner unions in other countries.

4 See, for example, the Trade Union Act, R.S.S. 1978, c. T-17, s. 43, as amended in 1994, which defines “technological change” as extending beyond the advent of new technology to include any “removal or relocation” of work affecting a significant number of employees. 5 E.g., C.U.P.E., Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; St. Anne-Nackawic Pulp and Paper Co. Ltd. v. C.P.U., Local 219, [1986] 1 S.C.R. 704; Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369. 6 See Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157. 7 Dunmore v. Ontario (Attorney General), [2001] 3 S.C.R. 1016. 8 R.W.D.S.U., Local 580 v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R.W.D.S.U., Local 558 v. Pepsi-Cola Canada Beverages (West) Ltd., [2002] 1 S.C.R. 156. Bilson 11/6/06 1:34 PM Page 300

300 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

All of this indicates that rumours of the death of collective bargaining may be greatly exaggerated. The institution of collective bargaining, and the tribunals overseeing it, have shown an ability to adapt and accommodate to a rapidly changing environment.

2. THE PURPOSES AND VALUES OF LABOUR LAW

(a) The Wagner Act Model: Some Unintended Consequences

Notwithstanding these positive signs, there are well-founded 2005 CanLIIDocs 206 reasons for concern about the stability and relevance of the current legal framework. It is true that the level of union membership in Canada has remained fairly constant for several decades, and is considerably higher than in the United States. However, these figures mask the true picture. The steady decline in union membership in core industries was counteracted in the 1970s by a rapid increase in union membership in the public and para-public sectors, after legislation had been enacted granting public-sector employees access to collective bargaining.9 Union density in the public sector continues to be extremely high, though the numbers have decreased in the face of government downsizing. On the other hand, union membership in traditional base industries has continued to fall, leaving labour organizations with the major challenge of making inroads in the service sector in order to maintain their position.10 The fact that significantly less than half of the Canadian workforce enjoys union representation in determining terms and conditions of employment, and that there is no realistic prospect of this proportion expanding, or even remaining the same, raises questions about the adequacy of the existing legal framework to support a strong collective bargaining system. Through new organizing

9 This concept may seem anomalous in Saskatchewan, where the collective bargaining legislation passed in 1944 drew no distinction between private- and public-sector employees. 10 Recent statistics suggest that the overall union membership rate is approxi- mately 30% of the Canadian workforce, and that workers in the public sector are about four times more likely to be union members than private-sector workers: Statistics Canada, “Fact Sheet on Unionization,” in Perspectives on Labour and Income (August 2005). Bilson 11/6/06 1:34 PM Page 301

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 301

strategies and more inclusive policies, unions have attracted some new members and have made some inroads in sectors which have not in the past been organized, but these successes do not seem to amount to major breakthroughs or to presage a new wave of collective bargaining relationships. Under the impetus of political and economic changes, discussion of the statutory mechanisms that promote collective bargaining continues to occur. The debate over replacement workers, first contract arbitration, restrictions on employer speech, unfair labour practice certification, and union access to the workplace is a steady hum 2005 CanLIIDocs 206 in the background of Canadian public affairs. In the context of certain events — a change of government, a high-profile organizing campaign, a protracted labour dispute — the volume of the debate increases, and these issues are higher on the list of public priorities than usual. Generally, however, the question of what encouragement should be given to workers to participate in the determination of the terms and conditions of their employment is not uppermost in the minds of most Canadians. There is no doubt that statutory provisions banning replacement workers or authorizing labour boards to certify a union because of employer unfair labour practices, to take a couple of examples, can make a difference to the ability of unions to gain and retain the right to represent employees. Other changes to the legal framework might make an even greater difference. The sectoral bargaining approach which has emerged in the construction industry and in health care, for example, could be tried in other sectors. The bargaining format of which the federal Status of the Artist Act11 is an example might provide a means of extending access to collective bargaining to dependent contractors who share common interests. Collective bargaining has proven to be a resilient and flexible way to involve workers in determining the terms under which they will be employed, and the statutes that promote and encourage collective bargaining as an institution have played a significant role in the economic and social development of Canada in the last 60 years. The issue of how to improve and strengthen collective bargaining continues to constitute a legitimate subject for public debate.

11 S.C. 1992, c. 33. Bilson 11/6/06 1:34 PM Page 302

302 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

In this paper, however, I wish to concentrate on an issue which was not completely resolved by the Wagner Act — the version of collective bargaining legislation adopted in North America — and which has certainly not been resolved for those workers who are outside the reach of collective bargaining. That is the relationship between the status of workers at work and their status as citizens in general. It is, I think, difficult to envision how any fundamental reforms can be achieved in the legal regime of employment without coming to some conclusion as to whether waged workers are legiti- mately regarded as something other than citizens when they are at 2005 CanLIIDocs 206 work. It is not that no one has identified this issue as a concern; indeed, it has been the subject of eloquent comment.12 It is necessary, however, to ensure that it forms part of the agenda in any discussion of labour law reform, and that its implications are fully considered in the Canadian context. I am proceeding on the basis that citizen participation and self- determination are accepted characteristics of a democratic society, and therefore of Canadian society.13 In this context, it seems anomalous that waged workers are generally denied opportunities for either participation or self-determination in the workplace, even though that is where they spend a large part of their lives.

(b) Citizens at Work

The restrictions placed on the exercise of citizenship in the workplace have venerable historical origins, and may be traced through the development of liberal democracy. As with many historical developments, the emergence of the principles on which modern democratic systems are based was not straightforward and did not take place overnight. Nonetheless, there was a shift in Western Europe “from status to contract,” to use the words of Sir Henry Maine,14 and this shift was reflected not only in political and

12 See, for example, Klare, “Workplace Democracy,” supra, note 3; Summers, “Questioning the Unquestioned,” supra, note 1; Arthurs, “The New Economy and the New Legality,” supra, note 1. 13 I do not intend here to explore the question of whether these characteristics are being fully realized on the general political front. 14 H.S. Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (London: John Murray, 1861). Bilson 11/6/06 1:34 PM Page 303

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 303

economic structures, but in the common law. The principle of freedom of contract was one of the hallmarks of the modern period, and common law judges drew an explicit connection between the rules they formulated concerning contracts, and the primacy of personal freedom (and, of course, the ownership of property). The premise of the common law of contract as it developed in the 18th and 19th centuries was that a contract warranted legal protection and enforcement because it represented an agreement freely entered into by autonomous citizens, and because recognition of such agreements would advance the cause of political and economic free- 2005 CanLIIDocs 206 dom. This idea logically extended to contracts of employment, characterized as agreements that recorded the terms on which willing workers had arranged to provide their skills to serve the needs of employers.15 Yet, however liberating the new contractual paradigm may have been for others, the common law contract of employment failed to fulfill the promise of personal freedom for the waged worker. This was partly because the notion of freedom of contract did not take into account the imbalance of power between individual workers and employers, particularly once technology and urbaniza- tion led to larger-scale workplaces. The paradigm’s failure to achieve freedom for workers was also due to the way in which the common law viewed the nature of the employment relationship. Though the courts may have been inclined to stress personal choice and volition in contract formation, the employment relationship was described in hierarchical terms. Indeed, a number of writers have pointed out that, from the employee point of view, the relationship was characterized by certain remnants from the feudal period, the most obvious being an overriding obligation of loyalty and obedience on the part of the employee.16 While workers may have made gains, through suffrage and otherwise, in the area of political participation, the legal characterization of employment prevented them from being equal partners in that relationship

15 “Recorded” is, of course, the wrong word here, because most employment contracts were not and are not written, and their “terms” are generally the subject of interpretation only when the relationship has broken down. 16 A. Fox, Beyond Contract: Work, Power and Trust Relations (London: Faber and Faber, 1974); K. Orren, Belated Feudalism: Labor, the Law and Liberal Development in the United States (Cambridge, New York: Cambridge University Press, 1991). Bilson 11/6/06 1:34 PM Page 304

304 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

and essentially excluded the workplace from the reach of democratic activity. Given the inequality of bargaining power, and consequences of unchecked employer power that were judged to be unacceptable, 19th- and 20th-century reformers in Britain and North America addressed their efforts to establishing minimum terms and conditions of employment through legislative regulation. This regulatory system was aimed at providing a floor for the economic bargain between workers and employers, and at protecting workers who were particularly vulnerable, such as women and children. The creation of a 2005 CanLIIDocs 206 safety net designed to prevent workers from economic free-fall did not, however, reduce the deficit of democratic values, i.e. the denial of an entitlement — with the possible exception of the moment of contract formation — to participate in or influence decisions affecting the workplace. Even where workers themselves were able to equalize their economic influence through industrial action, this did not translate into an ongoing participatory process. The introduction of collective bargaining legislation in North America was in part aimed at legitimizing the assertion of economic power by workers through unions, and in part at creating legal rules that would promote industrial peace. It was also intended to help correct the lack of self-determination under the common law relating to employment. In introducing the bill which became the Wagner Act, Senator Robert Wagner said that “we must have democracy in industry as well as in government; that democracy in industry means fair participation by those who work in the decisions vitally affecting their lives and livelihood.”17 When Canadian jurisdictions adopted legislation similar to the Wagner Act, there was little explicit discussion of the democratic values underlying collective bargaining; indeed, the passage of the first of these pieces of legislation during the Second World War suggests that industrial peace and economic stability figured most prominently in the deliberations of Parliament.18 Nonetheless, the link between democratic values and

17 Quoted in M. Derber, The American Idea of Industrial Democracy, 1865-1965 (Urbana, Illinois: University of Illinois Press, 1970), at p. 321. 18 Wartime Labour Relations Regulations, Order in Council P.C. 1003, February 17, 1944. For a discussion of the historical evolution of collective bargaining in Bilson 11/6/06 1:34 PM Page 305

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 305

collective bargaining has been drawn by Canadian commentators, and it has formed part of the rationale for the legislative scheme.19 Although it would be a mistake to press too far the assumption that legislative enactments are direct translations of the public will, the adoption of the legislative model embodied in the Wagner Act can be presumed to represent a measure of public consensus that collective bargaining should be encouraged and given legislative support. (Indeed, most of these statutes, though they have undergone some alteration, still make it clear that access to collective bargaining is a “right” and part of worker-citizens’ entitlement to choice.20) From 2005 CanLIIDocs 206 this foundation, it could be predicted that, workplace by workplace, appropriate bargaining unit by appropriate bargaining unit, collective bargaining would eventually become the normal basis of the employment relationship.

As I indicated earlier, for workers who succeeded in forming trade unions and establishing collective bargaining relationships, the promise of Wagner Act-type legislation — i.e. enhanced opportunities for participation and self-determination — was in many respects fulfilled. Notwithstanding ongoing critique of various aspects of the statutes in particular jurisdictions, the structures and processes set

Canada, see J. Fudge & E. Tucker, Labour Before the Law: The Regulation of Workers’ Collective Action in Canada, 1900-1948 (Don Mills, Ont.: Oxford University Press, 2001). 19 One of the best known of these statements is contained in P. Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Methuen/Carswell, 1980), at p. 33: “Rather, collective bargaining is intrinsically valuable as an experience in self-government. It is the mode in which employees participate in setting the terms and conditions of employment, rather than simply accepting what their employer chooses to give them (which, if the employer happens to be benevolent, may be just as generous compensation, just as restrained supervision). If one believes, as I do, that self-determination and self- discipline are inherently worthwhile, indeed, that they are the mark of a truly human community, then it is difficult to see how the law can be neutral about whether that type of economic democracy is to emerge in the workplace.” 20 See, for example, the Saskatchewan Trade Union Act, supra, note 4, s. 3. Bilson 11/6/06 1:34 PM Page 306

306 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

out in the legislation have become a touchstone for unions and employees. For a number of reasons, however, the advent of collective bargaining legislation did not fully enable workers to realize their status as citizens in the workplace. At the outset, the format of collective bargaining legislation adopted in North America had its own logic. The focus on majority choice in an appropriate bargaining unit would provide legitimacy to a labour organization that claimed to represent the interests of employees; this focus would also provide clear and viable targets for organizing. As the system evolved, though, certain 2005 CanLIIDocs 206 side-effects emerged, which were perhaps unanticipated by those who supported the passage of this legislation. One of the most important is the fact that the requirement for majority support in a bargaining unit, as a condition of union certification, has turned employee representation into an all-or-nothing proposition. This gave employers an incentive to resist certification. The format of representation, however, while an important consideration, does not fully explain the hostility to collective bargaining frequently shown by employers. It may be that, since union organization and collective bargaining have been defined primarily as an economic phenomenon, employers view union avoidance as a rational economic decision. While most employers would presumably be reluctant to admit that they do not consider their employees to be citizens, the definition of collective bargaining as a contest of economic clout between parties whose power has been equalized through the certification process relieves them of having to think in such terms. Still, even the perceived threat to the employer’s economic interests does not account for the heated rhetoric that sometimes accompanies union organizing campaigns or bargaining periods. That rhetoric may owe more to the common law traditions of employment. An employer accustomed to norms of fealty, obedience, and paternalism may regard unionization as an unnatural intrusion into management prerogatives. (Perhaps out of recognition of such sensitivities, collective bargaining legislation has generally excluded strategic business or financial decision-making from the sphere of bargaining.) Whatever the reasons for the aggressive response of many employers to the prospect of union representation for their employees, the hope that employers would become well disposed Bilson 11/6/06 1:34 PM Page 307

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 307

towards collective bargaining, and would enter into it in a spirit of partnership, has generally not materialized.21 The aversion to collective bargaining on the part of employers often has the practical result of preventing employees from choosing to be represented by a union. This, in combination with other factors, has disappointed another objective of the Wagner Act’s supporters — that collective bargaining would become widespread, if not universal, as the vehicle for regulating the employment relationship. The restricted coverage of employees through the collective bargaining system has led, in turn, to another all-or-nothing proposition — 2005 CanLIIDocs 206 either employees are represented by a certified trade union, or they do not participate at all in determining terms and conditions of employment, except where employers permit it.22 Though, as we have seen, the proportion of Canadian employees represented by trade unions has remained fairly constant, the majority of waged workers in Canada are without any claim to participation in workplace decision-making. In these circumstances, it appears that a shrinking number of employees will be able to avail themselves of the option of union representation, while a growing majority of citizens will not be able to take part in a meaningful way in decisions about the workplace. There are many reasons, embedded in culture, legal rules and the habits of employers and employees, for the way in which the collective bargaining regime evolved in Canada. I have tried to convey a sense of the features of the legislation that bear reappraisal, and of environmental factors that might affect efforts at legal reform. Statutory amendment of even limited or well-defined issues can be difficult in the face of entrenched legal or cultural inclinations; one would expect changes that require a re-examination of fundamental assumptions to be even more difficult to achieve.

21 This view has often been contrasted to the attitude of employers in many European countries; no one has suggested that labour relations are uniformly harmonious in those countries, but most employers accept that employee participation is a normal constituent of managing the workplace. 22 Of course, workers always have the right to negotiate terms and conditions with the employer at the time they are hired and their contract of employment is put into effect. Bilson 11/6/06 1:34 PM Page 308

308 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

As noted above, in proposing a move towards a system that provides workers with rights to more extensive participation in the determination of terms and conditions of employment, I am proceeding on the basis that this is in keeping with our stated commitment to foster- ing meaningful and vigorous forms of democracy in our society. To be sure, more utilitarian arguments can be marshalled in support of greater employee participation. There is a fairly extensive literature suggesting that workplaces characterized by a greater degree of participation are more effective by a number of measures, including employee commitment, effort and creativity.23 In fact, new working 2005 CanLIIDocs 206 methods focusing on teamwork and consultation have been widely adopted by employers. Although these developments no doubt reflect a genuine interest in promoting job satisfaction among employees, it is clear that employers view employee participation as having a positive effect on “the bottom line.” For this reason, the advent of team- based production, Quality of Working Life circles and similar initiatives has been greeted skeptically by some, who see such innovations as a calculated device for pacifying and co-opting employees rather than as a vehicle for genuine participation.24 Nonetheless, numerous employee advocates as well as employers recognize that the implementation of worker participation can lead to important practical benefits. This line of analysis has its place in persuading employers that their interests would not be fatally compromised if some form of worker participation were to be introduced in the workplace. In my view, however, it should not be the primary argument for extending

23 See, for example, R. Hodson, “Worker Participation and Teams: New Evidence from Analysing Organizational Ethnographies” (2002), 23 Econ. & Ind. Democracy 491. This article is particularly interesting because it provides an analysis of a large number of studies carried out previously on similar themes. The possible links between participation and productivity are also examined in S.A. Levitan & D. Werneke, “Worker Participation and Productivity Change” (1984), Monthly Lab. Rev. (September) 28. 24 In Hodson, ibid., the author concludes that exercises in teamwork which are simply mandated by the employer are much less effective than other forms of participation. The forms studied included worker ownership, traditional teams, and union-management partnerships. For a discussion of options for employee participation in the Canadian context, see D. Taras, “Alternative Forms of Employee Representation and Labour Policy” (2002), Can. Pub. Pol’y 105. Bilson 11/6/06 1:34 PM Page 309

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 309

rights to such participation. As Paul Weiler, among others, has observed,25 one of the premises of a democratic society is that self- determination is inherently worthwhile, and need not depend on proof of practical utility.

3. A PROGRAM FOR REFORM

I noted earlier that whatever hope there was that collective bargaining would become the normal vehicle for regulating the employer-employee relationship was not fulfilled. Rather than an 2005 CanLIIDocs 206 orderly expansion of bargaining rights and an eventual consolidation of bargaining units into more comprehensive entities, the system has resulted in isolated and fragmented bargaining, an adversarial climate in labour relations, and the disenfranchisement of all workers except those who are successful in establishing a majority large enough to permit certification. It is not possible here to outline a detailed program of reform, but I would like to identify several elements that should be included in any serious attempt to expand the range of opportunities for participation by workers in workplace decision-making. The most prominent barrier that must be addressed is the rigid- ity of a system based on exclusive and majoritarian representation. The placing of a legal duty to bargain on the parties, and in particular on employers, was perhaps the most distinctive feature of the Wagner Act generation of legislation, setting it apart from previous statutes that emphasized freedom of association. Under the current legislative scheme, however, that obligation is tied to the representation by a trade union of employees in a defined bargaining unit. Even if the union enjoys the support of a significant number of employees, the employer is not required to recognize the union unless it can establish majority support in the unit.

(a) “Members-Only” Unions

It has been suggested that one way to extend access to collective representation would be the institution of “members-only”

25 Supra, note 19. Bilson 11/6/06 1:34 PM Page 310

310 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

bargaining.26 Under such a regime, an employer would be required to deal with a union if it is able to attract a significant number of employees as members, even if those employees do not constitute a majority. One of the implications of a members-only approach is that employers might be required to recognize and bargain with more than one union. European experience does not suggest that this would lead to unmanageable chaos, as bargaining is likely to follow a pattern set by the dominant union.27 Furthermore, in order to ensure the credibility of bargaining representatives, it would be possible to establish criteria whereby a union must have a minimum number of 2005 CanLIIDocs 206 members as a precondition of obtaining representation rights. Another implication of this approach is that the union would not be obliged to represent — and could not claim to represent — employees who are not members and who are unwilling to become members. Such a proposal presents unions with a serious dilemma. The current system has guaranteed that, where a union is successful in obtaining certification, it represents all employees in the unit, and has the protection of statutory union security provisions. A certified union has a mandate to represent a group of employees who often have a functional relationship with each other. Although the presence of non-members or union opponents can be a source of friction, their inclusion in the bargaining unit gives the union an opportunity to address their concerns and to demonstrate that their interests can be effectively represented; and, in any case, they contribute to the financial resources of the union. In a members-only system, the status of the union would be less certain. On the one hand, such a system would relieve unions of having to establish majority support. Moreover, it could potentially reduce employer opposition to organizing campaigns, and ease

26 Summers, “Questioning the Unquestioned,” supra, note 1; G. Schatzki, “Majority Rule, Exclusive Representation and the Interests of Individual Workers: Should Exclusivity Be Abolished?” (1975), 123 U. Pa. L. Rev. 897; M.W. Finkin, “The Road Not Taken: Some Thoughts on Nonmajority Employee Representation” (1993), 69 Chicago-Kent L. Rev. 195; C. Morris, “Returning Member-Only Collective Bargaining to the American Workplace,” in American Industrial Relations Research Association Proceedings (2003). 27 See Summers, ibid., at p. 796. Bilson 11/6/06 1:34 PM Page 311

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 311

conflict between the union and employees opposed to unionization. On the other hand, moving to a members-only format would require unions to think of representation in a different way. Employees choosing to belong to a particular union might come from a wider range of positions within a workplace, and this could necessitate a more complicated balancing of interests. In addition, unions could lose the support of specialized or highly-skilled groups who may have been included in traditional bargaining units, and whose presence may have given the union added leverage at the bargaining table. 2005 CanLIIDocs 206 Concerns such as this have made the idea of members-only representation controversial, and it is not one that has been embraced wholesale by the labour movement. Nonetheless, the proposal merits careful examination. It would free unions from the need to obtain majority support in order to claim representational rights, and it would permit employees to be represented by a union in their deal- ings with an employer whenever a viable number signify this wish by becoming members of the union.

(b) Broader-Based Bargaining

The establishment of collective bargaining on the foundation of the “appropriate bargaining unit” has given the North American system a distinctively fragmented and decentralized character. As we have seen, this preoccupation with the definition of bargaining units has its own logic, but it has acted as a disincentive to bargaining which involves all of the employees of an employer, even those in a single location. It has been inimical to broad-based bargaining reflecting the circumstances existing across an industry or an economic sector. While sectoral bargaining is common in some areas, such as construction and health care, it has been slow to develop elsewhere, in part due to the fragmented structure now in place. The habits of broader-based bargaining are not easy to acquire. In the case of sectoral bargaining, such factors as competition between employers, the peculiarities of local labour markets, and variations in effectiveness among employee representatives would certainly all have to be taken into account. In Canada, the allocation of constitutional jurisdiction over most labour matters to the Bilson 11/6/06 1:34 PM Page 312

312 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

provinces28 creates a further barrier to broad-based bargaining, even if the objective is limited to the consolidation of bargaining with a single employer. If representation of employees is based on something other than the appropriate bargaining unit, however, attention could be addressed to creating more comprehensive configurations for bargaining, whether simply at the level of joint bargaining for multiple locations of an employer or at the level of an entire industry. This would allow the parties to address more directly those aspects of the terms of employment and working conditions that have implications 2005 CanLIIDocs 206 beyond a single workplace. The bargaining process would still, of course, have to provide for the resolution of issues affecting individual workplaces, but it should be possible to devise a layered system in which issues whose significance crosses the boundaries of a workplace can be dealt with at an appropriate level of generality. This may or may not extend to bargaining at a national level on issues of particular importance, affecting large numbers of workers. The federal structure and the traditions of Canadian industrial relations constitute powerful barriers to such a development. In countries where key issues are bargained at a national level, the government is typically an important player in the process, something which has not been a feature of the Canadian system. Government has played other roles important to labour policy, and has provided support and facilitation to collective bargaining relationships, but has generally remained at arm’s length from the negotiating table. In a system of bargaining based on sectoral concerns, or on issues involving a key employer, governmental interests are more clearly engaged, and a role for government as the spokesperson for a public policy perspective could be formulated. One reason why an expanded role seems less unlikely than it once did is that governments have increasingly recognized the public policy significance of the terms and conditions of employment. The premise underlying the common law contract of employment was that the terms on which an employee chose to offer his or her services to an employer was essentially a private matter. It is not surprising, therefore, that “free collective bargaining” was founded on the

28 Toronto Electric Commissioners v. Snider, [1925] A.C. 396. Bilson 11/6/06 1:34 PM Page 313

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 313

assumption that it was the business of the parties what they chose to agree on; the role of government was largely restricted to ensuring that ground rules were obeyed. Of course, the role of government was never quite this limited — regulatory and minimum standards legislation placed some constraints on the parties — but in general government did not define for itself a role in relation to substantive aspects of collective bargaining, nor did it develop a coherent view of the public policy implications of the terms and conditions of employment. The situation has changed somewhat in recent years, and gov- 2005 CanLIIDocs 206 ernments have been more inclined to place substantive limits on the scope of collective bargaining. This may reflect the pervasive influence of the Charter and human rights legislation; the constitutional or quasi-constitutional nature of these enactments has made it necessary for governments to ensure that the norms of human rights and equality are upheld in all areas of regulatory activity. The political pressures and controversy surrounding globalization and international trade may also have been a factor in bringing about a reassess- ment of the role played by government. Whatever the reasons may be, governments are increasingly looking at policy issues related to employment in a more cohesive way, and asserting a public interest in connection with employment relationships. If bargaining issues have national significance in relation to labour policy or broad economic strategies, the stage may be set for more active involvement by government in setting the parameters in which terms and conditions of employment are determined.

Although Canadian law does not establish fixed categories of mandatory and permissive subjects for bargaining, it has generally been recognized that decisions on major issues of corporate strategy and financial direction are reserved to the employer. Under some circumstances, information about these decisions must be disclosed in order to allow a union to bargain effectively,29 but there is no legally

29 See Westinghouse Canada, supra, note 2; Consolidated-Bathurst Packaging, supra, note 3. Bilson 11/6/06 1:34 PM Page 314

314 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

protected expectation of employee involvement or consultation with respect to the decisions themselves. A study of employee participation in the United States30 noted that, in the context of concession bargaining, unions had been able to assert a limited claim to increased input in strategic decision-making by employers. Since in many instances unions are bargaining in the shadow of financial and administrative decisions that have significant implications for their members, it is not surprising that unions wish to influence those decisions. Indeed, there does seem to be something anomalous about the preclusion of union input into decisions that may categorically deter- 2005 CanLIIDocs 206 mine the terms under which employees work, or make discussion of their future terms of employment irrelevant. The right to participate does not necessarily entail a right to prevail; providing unions with an opportunity to influence corporate decisions does not mean that employers cannot make those decisions in response to forces affecting the fiscal health or future prospects of the organization. It does mean that the interest of employees, as articulated by their representatives, will be taken into account, and that any insights employees may have will be brought to bear on the decision.31

4. NON-MEMBER PARTICIPATION

The changes I have been describing — moving away from the appropriate bargaining unit as the basis of collective bargaining, creating possibilities for broader-based bargaining, and opening up the subject matter of bargaining — could all extend the reach of collective bargaining as an institution, and render it a more robust vehicle

30 G. Strauss & T. Hammer, “Workers’ Participation in the United States,” Institute of Industrial Relations Working Paper Series 002-87 (Berkeley: Institute of Industrial Relations, 1987), at p. 17. 31 The idea that employee participation should extend to strategic corporate decisions is not new in Europe. In Britain, for example, long a bastion of a volun- tarist tradition in industrial relations, new regulations enacted pursuant to EC law provide for consultation with employees on these issues: see M. Hall, “Assessing the Information and Consultation Regulations” (2005), 34 Ind. L.J. 103; K.D. Ewing & G.M. Truter, “The Information and Consultation of Employees Regulations: Voluntarism’s Bitter Legacy” (2005), 68 Mod. L. Rev. 626. Bilson 11/6/06 1:34 PM Page 315

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 315

for employee participation. However, such changes are unlikely to make collective bargaining universal. The question remains of how to devise a form of participation by employees who are not represented by a union. The very idea of participation by non-unionized workers raises formidable conceptual problems, as well as controversies about its implementation in practice. Significant among these is the question of whether mechanisms for participation would permit direct participation by all employees or would involve a representative structure. If the latter, a question arises as to the independence of the represen- 2005 CanLIIDocs 206 tation. The company-dominated organization has been anathema to the labour movement since its beginnings; in the case of non-unionized workers, any specific scheme of representation would lend itself to allegations of employer manipulation. How would such representation establish its legitimacy? What procedural safeguards would be established to ensure that it accurately reflected the views of employees? What relationship would it have to existing unions and bargaining structures? Would it amount to a second-rate system whose main effect is to sap the strength of unions and to further fragment the workforce? All these questions must be answered in order to justify the creation of a system of representation for non-unionized employees.

(a) Existing Models: Health and Safety, and Pay Equity

Despite the concerns noted above, legislatures in Canada have already provided non-unionized workers with opportunities for involvement in two key areas. The first is occupational health and safety, where the legislation of all jurisdictions imposes an obligation on both employers and employees to maintain safe work practices, and provides for joint committees to address health and safety concerns in the workplace. The requirement for joint employer- employee committees is not limited to unionized workplaces; health and safety is assumed to be of vital importance to all employees, whether or not they are represented by a union. The legislation provides for the election of representatives by employees who are not unionized, and precludes the designation of representatives who have not been elected by the employees. The extent to which joint health and safety committees have been effective in reducing rates of injury Bilson 11/6/06 1:34 PM Page 316

316 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

and death in the workplace has been the subject of dispute, but analysis suggests a correlation between the committees and a reduction in the number of work-related accidents.32 In Quebec, non-unionized employees have also been given an opportunity to participate in the formulation of workplace pay equity plans. Legislation passed in 199633 provides for pay equity committees that include representatives of unorganized as well as organized workers. While the joint committees have not been in place long enough to permit an assessment of their effectiveness, the rationale for their establishment was sufficiently persuasive that the federal 2005 CanLIIDocs 206 Pay Equity Task Force recommended that similar committees be included in federal legislation.34 In both cases, the conclusion must be drawn that legislatures considered the subject matter — health and safety in one instance, pay equity in the other — sufficiently important to justify giving non-unionized workers input into the resolution of these matters. The joint employer-employee committees put in place under this legislation are examples of a model that could be considered to facilitate employee participation in the discussion of other vital workplace issues. Indeed, it is not difficult to identify other aspects of the terms of employment or working conditions of non-union employees which might give rise to an equally compelling rationale for allowing them to have input.

(b) The Problem of Ensuring Meaningful Participation

A number of different formats for non-union employee participation have been suggested, including employee share ownership,

32 For a discussion of the consultative model under health and safety legislation, see R. Chaykowski, “Achieving Pay Equity under a Transformed Industrial and Employment Relations System” (2002), unpublished research paper commis- sioned by the Pay Equity Task Force, at p. 34 and ff. See also A.E. Eaton & T. Nocerino, “The Effectiveness of Health and Safety Committees: Results of a Survey of Public Sector Workplaces” (2000), 39 Industrial Relations 265. 33 Pay Equity Act, R.S.Q., c. E-12.001. Note that the Ontario Pay Equity Act, R.S.O. 1990, c. P.7, does not require that province’s employers to consult with non-union employees concerning the pay equity plan. 34 Pay Equity: A New Approach to a Fundamental Right (Ottawa: Pay Equity Task Force, 2004), Chapter 8. Bilson 11/6/06 1:34 PM Page 317

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 317

production teams, and European-type works councils.35 Debate about the advantages and disadvantages of these forms of participation has been extensive, and will no doubt continue. I do not propose here to canvass the arguments made in relation to specific configurations, only to suggest that serious consideration of these and other forms of employee participation should be undertaken. Careful thought must be given to where decision-making authority will reside. On some issues, it may be appropriate to place decision-making authority in the hands of joint employee-employer bodies; on other issues, it may be more appropriate that employers 2005 CanLIIDocs 206 retain decision-making authority. In the case of health and safety committees, mentioned above, the ultimate responsibility for ensuring a safe workplace rests with the employer, and it is therefore appropriate that decisions are made by the employer. However, this does not mean that consultation with employee representatives cannot be beneficial, or that such consultations do not improve the quality and credibility of decisions. I said earlier that the expansion of meaningful employee participation, whether through unions or otherwise, would require a significant cultural shift on the part of employers (and employees too, for that matter). This raises the question of whether the barriers to such a cultural change are simply too formidable to be overcome. For employers accustomed to the traditional common law principles of employment, and to widespread tolerance for employer resistance to collective bargaining, the acceptance of pervasive forms of employee participation would represent a major change in how the employment relationship is conceived. In many workplaces, the nature of the work or the specialized skills of employees have resulted in a high degree of autonomy for individual workers. In many others, employers, drawing on modern human resource management theory, have solicited employee input as a means of building cohesion or improving morale. These developments may stem from a belief in the effect of innovative personnel practices on productivity or the ability to attract employees with valuable skill sets. They are

35 See Adams, “A Pernicious Euphoria,” supra, note 1; Summers, “Questioning the Unquestioned,” supra, note 1; Strauss & Hammer, “Workers’ Participation,” supra, note 30. Bilson 11/6/06 1:34 PM Page 318

318 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

rarely, I think, rooted in a well-developed concept of industrial citizenship, and many employers might have difficulty with the extension of this vision of citizenship into the workplace. On the other hand, the history of the workplace suggests that attitudinal change is possible over time. Norms that once seemed as well-entrenched as the phases of the moon have been questioned, shaken and overthrown. Regulatory changes with respect to such issues as child labour, health and safety standards, paid holidays and hours of work have significantly altered the working conditions of employees. Evolution in the common law has cast doubt on the legit- 2005 CanLIIDocs 206 imacy of unilateral employer action that does not conform to societal standards of humane conduct. The achievement of equality and the elimination of discrimination have emerged as part of the management agenda in many workplaces. I do not suggest that the picture is one of inexorable progress or universal enlightenment. However, the Canadian workplace is not what it was a century ago. The possibility that employers could also accommodate more effective forms of employee participation should not be ruled out.

For unions, fundamental changes in existing structures would, in some ways, entail considerable risk. The current regime of defined bargaining units, exclusivity of representation and union security provisions clarifies the representational claims of unions and gives their mandate specific shape. In the absence of this structure, the degree of influence unions have gained would be imperilled. The introduction of forms of participation by unorganized workers could also be seen as a threat to the status of unions, and a means of ensuring that workers remain uninterested in union representation. Canadian unions have in fact expressed these concerns, pointing out that a European-style system cannot be transplanted without modifi- cation. They are skeptical about the motives of employers in supporting certain forms of employee participation.36

36 For example, in a table of “Labour Related Definitions” on the website of a local of the Canadian Auto Workers, the term “Reorganization” is defined as follows: “Employer promulgated movement to alter the organization of work by pushing a ‘co-operative,’‘worker empowerment’ strategy in both union and non-union Bilson 11/6/06 1:34 PM Page 319

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 319

Unions in Canada recognize, however, that they must take new approaches to worker participation, and have made efforts to formulate innovative strategies for extending union representation into non-traditional workplaces. These strategies include working more closely with other unions and labour organizations, both inside and outside Canada, and with unorganized workers. At the level of anec- dote, my experience in discussions with representatives of major labour organizations as part of the work of the Pay Equity Task Force suggests that the leadership of these unions is seeking new and creative ways to represent Canadian workers. In relation to certain 2005 CanLIIDocs 206 issues, they accept that it may be necessary for unions to play a leadership role in facilitating participation by non-union workers.37 Though unions are understandably anxious about changes to the legal structure of collective bargaining, they are also realistic about the limitations of that structure. They insist that representation by strong and independent trade unions continues to be the most effective way for workers to participate in the determination of terms and conditions of employment. In sum, unions must be persuaded that new participatory structures would genuinely enable workers to influence their working environment, but their orientation towards practical solutions creates an opening for serious discussion of reform.

workplaces. Worker incorporation and a more ‘flexible’ labour force are combined with the introduction of new technologies which are fundamentally changing the nature of work. The result is a significant shift in the balance of power away from labour and toward management”: see . 37 Canadian unions have been wary about proposals for European-type works councils, a forum that includes both unionized and non-unionized workers, but there are signs that they are willing to consider similar consultative mechanisms. A CAW report to the 1999 Collective Bargaining and Political Action Convention contained the following comment: “Under the legislation of the European Union employers are required to set up ‘Works Councils’ and organize a once a year Works Council Forum. At this forum representatives from locations all over Europe come together and exchange information. These councils are in no way a replacement for union structures and in some instances just a company based ‘talk shop.’ However, stronger unions are using them as an opportunity to advance a workers’ agenda and we should seize the opportunity to find out first hand if there are advantages as well as drawbacks.” See . Bilson 11/6/06 1:34 PM Page 320

320 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

And what about workers themselves? Those who are skeptical about the value of employee participation argue that workers do not really want a role in the direction of the workplace: only the cranky or individuals with a suspect agenda come forward, thereby putting worker participation in a negative light. There is some substance to this argument. Trade unions themselves make extensive provision for member participation — indeed, vigorous participation by members is vital to the health of unions as organizations — but they are often frustrated by the unwillingness of members to contribute to debate or to assist in union affairs. Concern 2005 CanLIIDocs 206 is regularly expressed about the apparent apathy and disengagement from the democratic process evident in society as a whole. It is worth asking whether employees would actually make anything of opportunities for workplace self-determination. The possibility that workers will be apathetic, reluctant or ill-informed is real, and to the extent that these characteristics are manifested, the mechanisms for worker participation will be less effective. Furthermore, employers have understandable reasons for concern about the inefficiencies and confusion that might arise from ineffective or unrepresentative employee participation. However, if one thinks of worker participation as having inherent value rather than as a means to an end, if it is seen as a right rather than an element of human resource management, then these are not arguments for abandoning the idea, but for strengthening and invigorating worker involvement. If worker participation is an exercise in citizenship, reform should lie in the direction of inculcating the values and skills of citizenship more strongly, not in the direction of reinforcing the authority of employers to act unilaterally.

5. GLOBALIZATION AND LABOUR LAW REFORM

A comment should be made about the viability of labour law reform in the face of globalization. Just as observers of the Canadian labour law system have voiced concern about the limited impact of collective bargaining as a means of participation, so too have they expressed anxiety about the adequacy of any domestic system to protect workers against a deterioration of labour standards as a result of economic forces that cannot be contained within the borders of a Bilson 11/6/06 1:34 PM Page 321

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 321

single nation.38 The inability of domestic law to restrain or even affect the decisions made by global corporations has become a familiar theme in discussion of labour standards and collective bargaining legislation. Canadian governments have faced increasing pressure to modify legislative programs in order to appease transnational employers, the alternative being the transfer of operations or invest- ments to a jurisdiction with less onerous labour laws. This scenario raises the question of whether, in a world where the mobility of employers permits them to ignore the voices of employees, trade unions and domestic governments, there is any point in seeking to 2005 CanLIIDocs 206 increase worker participation. Will a future characterized by capital mobility and corporate consolidation necessarily be as bleak as it is sometimes portrayed? There are at least two reasons, in my view, for guarded optimism about the future prospects of worker participation. For one thing, despite cause for concern about the ability of domestic governments to retain their regulatory grip on the workplace, there are encouraging examples of initiatives at the multinational and international levels aimed at developing standards for new configurations of capital and labour.39 To date, admittedly, the effectiveness of multilateral initiatives is open to question. It is doubtful that the North American Agreement on Labour Co-operation (the NAFTA “side agreement”), for example, has had much influence on the direction of labour policy in the NAFTA countries,40 or that reference to this or

38 In his inaugural Koskie Minsky lecture, Harry Arthurs raises the question of whether the constitutional status of Canadian labour jurisdiction should be revis- ited in light of the fragmenting effect of the current system, under which responsibility is assigned to multiple governments: see “Who’s Afraid of Globalization? Reflections on the Future of Canadian Labour Law” in J. Craig & M. Lynk, eds., Globalization and the Future of Labour Law (Cambridge: Cambridge University Press, 2006), at pp. 51-76; E. Tucker, “‘Great Expectations’ Defeated? The Trajectory of Collective Bargaining Regimes in Canada and the United States Post-NAFTA” (2004), Comp. Lab. L. & Pol’y J. 97. 39 See, e.g., P. Macklem, “Labour Law Beyond Borders” (2002), 5 J. Int’l Econ. Law 605; P. Fairbrother & N. Hammer, “Global Unions: Past Effects and Future Prospects” (2005), 60 Relations Industrielles/Industrial Relations 405. 40 In “Who’s Afraid of Globalization?”, supra, note 38, Arthurs refers to a study he conducted which suggested that management-side labour lawyers have had little involvement with multilateral or international attempts at labour regulation. Bilson 11/6/06 1:34 PM Page 322

322 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

other multilateral arrangements has become commonplace in discussion of workplace issues. On the other hand, the experience of Europe over the past several decades suggests that multilateral efforts to maintain regulatory standards and to protect employee access to vehicles for participation can have some effect. While progress has been slow, regulatory measures taken by the European Union have had a noticeable influence at the domestic level in member countries. The second reason for optimism is that alluded to by Harry Arthurs in his inaugural Koskie Minsky lecture:41 the history of labour law and labour protection is a story of pressure from the bot- 2005 CanLIIDocs 206 tom up, not from the top down. Workers live and work in fixed geo- graphical areas and within settled political boundaries; unlike capital, they do not have a virtual existence without reference to dimensions of place and community. Although this can be a disadvantage in the face of capital mobility and multinational corporate decision-making, it does mean that workers will continue to have opportunities to cultivate solidarity and to assert pressure for the improvement of working conditions.

6. CONCLUSION

The promise to workers that their status as citizens would be accommodated in the legal framework of employment has been broken to a significant degree, at least at two important junctures. Liberal individualist rhetoric was closely tied to the development of the principles of the common law of contract; the nature of the employment relationship, however, meant that the individual choices or preferences of workers did not shape the employment contract to the same extent as those of employers. Though the North American collective bargaining regime created greater opportunities for unionized workers to influence their terms and conditions of employment, the peculiar features of the Wagner Act system excluded the majority of workers from these opportunities. I have alluded only briefly to some of the innovations that have been suggested to give more workers a chance to participate in the determination of workplace issues. Some of these, such as broader-

41 “Who’s Afraid of Globalization?”, supra, note 38. Bilson 11/6/06 1:34 PM Page 323

FUTURE TENSE: SOME THOUGHTS ABOUT LABOUR LAW REFORM 323

based or members-only bargaining, could potentially enhance the appeal and the inclusiveness of collective bargaining. Other possibilities, such as the extension to other issues of statutory joint consultation models, do not depend on the collective bargaining structure in its current form. All of these options merit further examination. Whether the most promising direction lies in the reform of collective bargaining or in a system that is inclusive of all workers, unionized and non-unionized, it seems unlikely that change will be achieved on a purely voluntary basis; some form of legislative intervention will almost certainly be required. 2005 CanLIIDocs 206 It may seem that the obstacles to enhanced worker participation are so overwhelming as to be insurmountable; that the risks of abandoning the current collective bargaining structure are so great as to prevent any serious contemplation of such an option by unions; and that the position of employers is so invulnerable as to discourage serious interest on their part in a system that might oblige them to hear the voices of their employees. The challenges of taking the direction sketched out here would be formidable, and I do not mean to underestimate them. What I have tried to suggest is that the potential for addressing the interests of workers as citizens within the current system is limited, and that efforts to ameliorate the limitations of the system have not succeeded in overcoming the democratic deficit. The difficulties of extending opportunities for participation are undeniable. However, these difficulties cannot justify giving up on the belief that employees, for the significant portion of their lives they are at work, are entitled, as citizens, to have their interests considered and their right to self-determination realized. Bilson 11/6/06 1:34 PM Page 324 2005 CanLIIDocs 206 Burkett 11/6/06 1:35 PM Page 325

Reflections on Tripartism and Labour Law Reform

Brian W. Burkett*

In recent years, labour law reform initiatives by some provincial governments in Canada have reflected a highly partisan, one-sided approach that promoted only the interests of the governing party’s supporters. The author, a senior member of the management bar, is critical of this trend. He argues that it disturbs the balance that is required in the labour relations system, sets in 2005 CanLIIDocs 206 motion disruptive “pendulum swings,” and undermines the legitimacy of labour laws and institutions. In his view, only by taking a tripartite approach, based on meaningful consultation with both unions and employers, can governments achieve successful, enduring reform. The author sets out the basic principles of tripartism, as developed by the International Labour Organization, and explains how those principles have been applied in the Summit of the Americas process. He then turns to a consideration of two examples of a tripartite process that resulted in effective, consensus-driven reform at the federal level: the Woods Task Force, and the Sims Task Force. The author contrasts those processes to the short-lived, politically motivated reforms enacted in Ontario in the 1990s, first by the NDP government and then by the successor PC government, both of which made far-reaching changes to labour legislation without meaningful consultation with all of the stakeholders. He concludes by express- ing the view that employers have largely come to embrace tripartism, because they have realized that it is in their best interests to do so.

1. INTRODUCTION I believe that in the long run — when, as Keynes reminded us, we will all be dead — the most satisfying, productive, efficient and equitable societies will be those where public policy is formulated in a truly collaborative manner — where governments, management and labour sit down together and work through a policy agenda where the interests of stakeholders are, to the extent possible, balanced and reconciled in a fair and workable manner. — Tim Armstrong1

* Partner, Heenan Blaikie LLP; Executive Director and Counsel, Canadian Employers Council. I acknowledge with gratitude the contributions of the members of Heenan Blaikie’s International Labour Law Practice Group, and specifically John Craig, Stephanie Montgomery-Graham, Jodi Gallagher, Sonia Regenbogen and Kevin Inwood. 1 T. Armstrong, “Contemporary Collective Bargaining: How Well Is It Working?” (paper presented at the Larry Sefton Memorial Lecture, March 6, 2003), online: Centre for Industrial Relations and Human Resources, . Burkett 11/6/06 1:35 PM Page 326

326 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

As Armstrong suggests, labour law reform should proceed on the basis of tripartite participation and consensual decision-making that involves representatives of government, employers and workers. Yet a commitment to true tripartism has been notably absent from some recent labour reform initiatives in Canada. In particular, we have seen politically motivated fluctuations, or “pendulum swings,” in provincial labour laws, with little thought as to whether these reforms are workable in the long term. Experience suggests that highly partisan reform initiatives have generated short-sighted, disruptive changes which have provoked partisan responses by succeed- 2005 CanLIIDocs 206 ing governments. As Paul Weiler has explained, when the labour law pendulum swings to one side of the political spectrum, it has a tendency to swing back to the other side, creating an unstable labour relations atmosphere.2 In this paper, I have two objectives. First, I will consider the meaning of tripartism in the unique context of labour relations. I will look at the origins of tripartism in the International Labour Organization, and will consider how the principles of tripartism have been applied domestically in Canada. My purpose here is to demonstrate the crucial importance of the process of tripartism in our labour relations system, and to suggest that the legitimacy of labour law reform depends largely on the effective use of that process. Second, and in that light, I will discuss examples of labour law reform in Canada. It is at the federal level where we see instances of effective, non-partisan use of tripartism in labour law reform, particularly in the case of the 1968 Woods Task Force3 and the 1996 Sims Task Force,4 which relied on broad consultation to achieve enduring reforms. Those reform initiatives stand in stark contrast to some of the partisan, short-term, and misguided initiatives that we have seen in recent decades, particularly in Ontario.

2 P.C. Weiler, “The Process of Reforming Labour Law in British Columbia,” in J.M. Weiler & P.J. Gall, The Labour Code of British Columbia in the 1980s (Vancouver: Carswell, 1984). 3 The Woods Report on Canadian Industrial Relations (Don Mills, Ont.: CCH Canadian, 1969). 4 A.C.L. Sims, R. Blouin & P. Knopf, Seeking a Balance: Canada Labour Code Part One Review (Quebec: Minister of Public Works and Government Services Canada, 1996) (“Sims Report”). Burkett 11/6/06 1:35 PM Page 327

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 327

After exploring the concept of tripartism and how it was or was not applied in specific instances of labour law reform in Canada, I will conclude by considering the perspective of the employer community on tripartism and labour law reform. In my view, Canadian employers have come to embrace tripartism, and rightly so. I will try to explain why.

2. TRIPARTISM IN THE INTERNATIONAL LABOUR ARENA 2005 CanLIIDocs 206 (a) What Is Tripartism?

Tripartism refers to a model of decision-making that relies on consultation and cooperation among representatives of the three “social partners,” namely employers, workers and government. While achieving a consensus is an important goal of tripartism, this does not mean that labour laws must be frozen until a consensus on reform is reached. In some circumstances, consensus will be difficult if not impossible to achieve because the competing interests of workers, employers and the state cannot be reconciled. Instead, tripartism is focused on the process leading to substantive labour law reform, and dictates that both workers and employers must have an equal opportunity to be consulted and to express their views. The hallmarks of the tripartite process in labour relations are equal access, meaningful consultation, compromise, and the pursuit of a consensus where possible. As discussed below, the International Labour Organization’s elaboration of the principles of tripartism in the international sphere assists in understanding the importance of the concept in domestic labour law reform. I therefore begin my consideration of tripartism by turning to the ILO.

(b) The International Labour Organization

(i) Tripartism in the ILO’s Structure

The ILO, a specialized agency of the United Nations with a mandate to deal with global labour issues, has promoted the model of Burkett 11/6/06 1:35 PM Page 328

328 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

tripartism ever since the agency was founded in 1919. The ILO constitution, which was adopted by the Versailles Peace Conference in April 1919, was notable for its clear commitment to a tripartite structure. For example, Article 3(1) provided that the ILO General Conference was to have four representatives from member states, two of them representing the government, one representing employers, and one representing workers. Similarly, Article 7 stipulated that the annual International Labour Conference was to be composed of 28 state representatives, 14 employer representative and 14 worker representatives.5 ILO initiatives since 1919 have strengthened its 2005 CanLIIDocs 206 overarching commitment to tripartism. For instance, the 1944 Declaration of Philadelphia affirmed the Organization’s dedication to a “continuous and concerted international effort in which the representatives of workers and employers, enjoying equal status with those of governments, join with them in free discussion and democratic decision with a view to the promotion of the common welfare.”6 The ILO’s basic tripartite structure has survived for almost 90 years; indeed, the International Labour Conference continues to meet each year in Geneva. Representatives of governments, employers and workers participate in committees and develop international labour standards through a unique process based on consultation and open, frank discussion.7 They deal with social and labour questions of global importance, and adopt international standards as well as reso- lutions that provide guidelines for the ILO’s policies and activities. Every delegate has the same rights, and all can express themselves freely and vote as they wish. In practice, this means that a country’s worker and employer delegates sometimes vote against their government’s representatives or against each other. This diversity of view- points, however, does not prevent decisions from being adopted by very large majorities, and in some cases even unanimously. Canada’s tripartite delegation to the International Labour Conference is always headed by the federal Minister of Labour. It

5 ILO constitution, online: . 6 Online: . 7 Human Resources and Skills Development Canada, online: . Burkett 11/6/06 1:35 PM Page 329

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 329

also includes federal and provincial government representatives, as well as worker representatives designated by the Canadian Labour Congress (CLC) and the Confederation des syndicates nationaux (CSN), and employer representatives nominated by the Canadian Employers Council (CEC).

(ii) ILO Conventions and Recommendations on Tripartism

The ILO generally uses two types of instruments to promulgate international labour standards: conventions, which are legally bind- 2005 CanLIIDocs 206 ing international treaties, upon ratification by member states; and recommendations, which are not intended to have binding effect. There are three important ILO instruments that explicitly promote tripartism: Recommendation 113 (1960),8 Convention 144 (1976),9 and Recommendation 152 (1976).10

(A) RECOMMENDATION 113

The Tripartite Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113) (Recommendation 113) was the first ILO instrument to expand upon the concept of tripartism. It essentially proposes that domestic labour relations systems promote effective consultation and cooperation between public authorities and employers’ and workers’ organizations. Of particular importance is that the consultation and cooperation should have the general objective of promoting mutual understanding and good relations, with a view to developing the economy, improving conditions of work, and raising standards of living. The overall goal is thus the meaningful contribution of employers and workers to decision-making processes touching on labour relations issues.

8 Tripartite Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113). 9 Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144). For a comprehensive listing of all ILO conventions and recommendations, see online: IOLEX Database of International Labour Standards, . 10 Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152). Burkett 11/6/06 1:35 PM Page 330

330 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

(B) CONVENTION 144

The Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144) requires ratifying states to implement procedures to facilitate national tripartite consultations. However, Convention 144 is limited to matters respecting the ILO; it relates to the development, implementation and review of international labour standards based on a tripartite model at the national level. In fact, the Convention, in Article 5, sets out five subject areas corresponding to each stage of the ILO’s standards-related activities, on which tripar- 2005 CanLIIDocs 206 tite consultations are to take place nationally. Those subject areas are: preparation of replies to questions on agenda items and comments on draft standards and other texts; sub- mission of new conventions and recommendations to domestic processes for ratification or implementation; periodic recommendations on whether unratified standards should be ratified and applied; periodic reports to the ILO on how ratified conventions are being implemented; and consideration of whether ratification of a convention should be withdrawn. Convention 144 affords national governments considerable flexibility in determining what tripartite structures and processes to use. Institutional arrangements may be formal or informal, permanent or ad hoc. The ILO has, however, recommended the following options:11

¥ A committee specifically constituted to consider questions concerning the activities of the ILO. ¥ A body with general competence in the economic, social or labour field. ¥ A number of bodies with responsibility for particular subject areas (for example, maritime affairs, occupational safety and health, social security). ¥ Written communications. ¥ Ad hoc committees and meetings.12

11 Tripartite Consultation Ratify and Apply Convention 144, online: , at p. 3. 12 Ibid., at p. 4. See, as well, the Tripartite Consultation (Activities of the Inter- national Labour Organisation) Recommendation, 1976 (No. 152), supra, note 10, Article 2(3), ss. (a) through (d). Burkett 11/6/06 1:35 PM Page 331

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 331

The Tripartite Consultation (Activities of the International Labour Organisation) Recommendation, 1976 (No. 152) (Recom- mendation 152) elaborates on Convention 144. It proposes the use of tripartite consultation in the preparation and implementation of legislative or other measures designed to give effect to ILO conventions and recommendations, as well as in dealing with questions arising out of reports to be made under Article 19 of the ILO constitution (which sets out the procedural steps required to adopt proposed con- 2005 CanLIIDocs 206 ventions or recommendations).13 Recommendation 152 also provides that tripartite consultation should be extended to cover the preparation, implementation and evaluation of technical cooperation activities in which the ILO participates.

(iii) The Nature and Scope of Tripartism at the ILO

In its General Survey on Tripartite Consultation conducted in 2000, the ILO specified that the term “consultation” should be distinguished from both “information” and “codetermination.”14 It must also be distinguished from “negotiation,” a term which implies initiatives taken by parties with conflicting or differing interests with a view to reaching an agreement. An important consequence of this distinction is that the consultations required by the instruments discussed above are intended to assist governments in making decisions, rather than to lead to agreement. For consultations to be meaningful, they should not be merely a token gesture, but should be given serious consideration by the state. Although the public authorities must undertake consultations in good faith, they are not bound by any of the opinions expressed and remain entirely responsible for the final decision. A second important consequence of the distinction between consultation and negotiations is that participating representatives of

13 “ILO Standards on Tripartite Consultation,” online: . 14 “ILO General Survey on Tripartite Consultation,” online: , under “2000, Tripartite Consultation: 2. Defini- tions and methods of implementation.” Burkett 11/6/06 1:35 PM Page 332

332 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

employers and workers must in no way be bound by the government’s final decision or position. It would be contrary to the autonomy of employers and workers if either was held responsible for the government’s decision simply because they had been consulted in the process of reaching the decision. Nevertheless, one objective of the consultation process should be to reach a consensus between the various parties, while respecting their autonomy. To be effective, consultations must take place before final decisions are made. Depending on national practice, consultation can mean either submitting the government’s proposed decision to 2005 CanLIIDocs 206 employer and worker representatives for their input, or asking those representatives to help formulate the proposal itself. The important point is that the groups consulted should be able to put forward their opinions before the government makes its final decision.

The ILO’s tripartite approach has recently been adopted in the labour and social talks mandated by the Summit of the Americas process. I have been involved in this process since 2002, and I think it is notable for at least two reasons: because the tripartite model adopted within the Summit process has in my view been very successful, and because Canada has taken a leadership role in the Summit process and has been a major supporter of Summit tripartism. It should be noted that the term “Summit of the Americas” describes both periodic conferences of democratically-elected governments in the western hemisphere, and the process of further discussion and consultation that is mandated by those conferences. The Summit is currently the only forum in which labour issues common to all countries of the Americas are continually addressed.15 The first Summit of the Americas, convened by United States president Bill Clinton, took place in Miami in 1994. The meeting produced a Declaration of Principles and a Plan of Action signed by all 34 heads of state and governments in attendance. The Declaration of Principles established a pact for development and prosperity based

15 Summit of the Americas, online: . Burkett 11/6/06 1:35 PM Page 333

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 333

on the preservation and strengthening of democracy in the Americas. The Miami Declaration set ambitious goals, including the expansion of prosperity through economic integration and free trade, the eradi- cation of poverty and discrimination in the hemisphere, and the promotion of sustainable development and environmental protection. One of the most important initiatives to emerge from the Miami Summit was an agreement to work toward creating a Free Trade Area of the Americas (“FTAA”) by 2005.16 At the Second Summit in Santiago, Chile in 1998, the groundwork was laid for the institutionalization of the Summit as a 2005 CanLIIDocs 206 process.17 The Santiago Plan of Action committed governments of the Americas to continue to meet periodically to “deepen cooperation and understanding.”18 Labour and social issues have emerged as a pivotal aspect of the Summit process. These issues are largely brought to the Summit through the Inter-American Conference of Ministers of Labour (“IACML”), which was established by the Organization of American States to facilitate meetings and discussions of the Ministers of Labour. Like the ILO, which serves as an advisory body to the IACML, the IACML is organized on a tripartite model. The Business Technical Advisory Committee on Labour Matters (“CEATAL”) represents employer interests, while the Trade Union Technical Advisory Council (“COSATE”) promotes the interests of workers. Both CEATAL and COSATE are permanent advisory bodies to the IACML. Initially, the principal function of the IACML was to study and consider labour and social issues relevant to the proposed FTAA. However, by 2003 it became clear that the FTAA was unlikely to be achieved by 2005. The IACML now focuses on professionalizing labour administration and enhancing the capacities of labour min- istries. It has also begun to promote the development of hemispheric best practices in areas such as unemployment insurance, skills development, and placement services. The theme of the Fourth Summit of the Americas, held in Argentina in November 2005, was “Creating Jobs to Fight Poverty

16 Ibid. 17 Ibid. 18 Ibid. Burkett 11/6/06 1:35 PM Page 334

334 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

and Strengthen Democratic Governance.” The notion of labour and social issues as an addendum to trade liberalization was effectively abandoned, in favour of an approach that treats social development as a crucial component of democratic development. At the same time, many hemispheric leaders (most notably Hugo Chavez of Venezuela) were declaring that the FTAA was “dead.” The social dimension that first emerged as a counterbalance to trade liberalization now appears to have supplanted trade as a matter of concern within the Summit process. The IACML’s activities from 2006 to 2008 will be based on the 2005 CanLIIDocs 206 Declaration and Plan of Action adopted at the Fourth Summit,19 both of which focus almost exclusively on hemispheric social and labour issues, including the promotion of “decent work” and job creation. The unique role of the IACML is recognized in both the Declaration and the Plan of Action, where tripartism is accepted as a guiding principle for hemispheric initiatives.20 On this basis, CEATAL and COSATE are expected to continue to play key roles in all IACML activities, in furtherance of the objectives established at the Fourth Summit.

3. TRIPARTISM IN CANADA

(a) Canada, Tripartism and Convention 144

Canada has always been an enthusiastic and active member of the ILO, working consistently in support of the Organization’s aims, values, and tripartite structure. Responsibility rests today with the Labour Program of Human Resources and Skills Development Canada to manage Canada’s participation in the ILO and to develop the government’s positions on ILO-related issues in consultation with the provinces, territories, and the other social partners (as

19 Fourth Summit of the Americas, online: . 20 See subparagraphs 11 and 24 of the Plan of Action, and subparagraphs 37 and 73 of the Declaration. Burkett 11/6/06 1:35 PM Page 335

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 335

represented by the CEC and the CLC/CSN).21 Canada’s role in the ILO is matched by its strong leadership role in the IACML. Canada chaired the IACML from 2001 to 2003, during which time significant strides were made in refocusing the IACML from the trade-labour linkage to issues of labour administration and social protection. Both the CEC and the CLC have actively participated in IACML events. It is notable, however, that Canada’s commitment to tripartism in the international sphere has not translated into ratification of Convention 144. The principal reason may be the complexity of achieving consensus on ratification within Canada’s federal system.22 2005 CanLIIDocs 206 While the federal government has the authority to ratify ILO conventions, the implementation of many conventions falls largely to the provinces, and conventions on issues within both federal and provincial jurisdiction can be ratified only if all of the governments agree to implement them without reservation.23 As discussed below, it appears that the commitment to tripartism is strong at the federal level but is relatively weak in some of the provinces. I suggest that there are two reasons for this. First, the federal government has been exposed to tripartism at the ILO since 1919, and therefore has had long first- hand experience with it. The provinces have not been as close to the ILO process, and have not seen the need to reproduce it in their labour relations processes. Second, we have seen more radical political shifts in provincial governments than we have federally. The federal system is dominated by brokerage politics, and both parties that have historically governed at the federal level — the Liberals and the Conservatives — have tended to adopt moderate approaches to industrial relations that sought to balance competing interests. Tripartism is quite consistent with a moderate, balanced approach. Politics at the provincial level have been more ideologically charged, with frequent swings between right and left in some provinces. Labour law has emerged as a major focus of those ideological battles, leaving little room for tripartism.

21 A.J. Torobin, “The Labour Program and the International Labour Organization: Looking Back, Looking Ahead” (2000), 2 Workplace Gazette 85, at p. 86. 22 Ibid. 23 Ibid., at p. 88. Burkett 11/6/06 1:35 PM Page 336

336 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

(b) Tripartism in Domestic Labour Law Reform

(i) Reform Pursuant to the Tripartite Model

In the 28 years I have been practising as a management-side labour lawyer, I have had the benefit of witnessing a number of labour law reform processes that were consistent with tripartite principles, and others that were antithetical to them. Based on my own experience and observations, I start from the assumption that successful and enduring labour law reform requires the participation of 2005 CanLIIDocs 206 workers and employers, consultation with acknowledged experts in the field, and in-depth comparative study and analysis of the existing collective bargaining system.24 A one-sided approach to labour law reform that simply rewards the supporters of a particular political party is both short-sighted and inconsistent with the balance that needs to be fostered within the labour relations community. For this reason, I believe that the concept of tripartism is central to achieving effective solutions to labour issues. The governing principles of labour law reform must be the core principles of tripartism: equal access, meaningful consultation, compromise, and the pursuit of a consensus where possible. Paul Weiler has identified three problems arising from the politicization of the labour law reform process.25 First, a governing political party’s use of its legislative majority to push through one- sided reform will inevitably serve as a precedent for an opposition party to reciprocate when it takes office. This “pendulum effect” inevitably leads to uncertainty among stakeholders. Second, such swings mean that the law is seen as unfair to certain groups, at least some of the time. This undermines the voluntary acceptance and legitimacy of labour laws and institutions. Third, a labour tribunal’s greatest challenge is to establish confidence among all stakeholders that unfair behaviour will not be tolerated. Stakeholder commitment to, and participation in, the process will not be fostered if the tribunal is attempting to enforce laws that are seen as unfair. Conversely, the risk that labour law reform will be politicized is substantially reduced

24 My assumption is informed by K.M. Burkett, “The Politicization of the Ontario Labour Relations Framework in the 1990s” (1998), 6 C.L.E.L.J. 161. 25 Weiler, supra, note 2. Burkett 11/6/06 1:35 PM Page 337

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 337

if employer and worker groups are brought into the process through tripartite consultation. Equal participation of employers and workers has a moderating impact on reform outcomes, thereby promoting stability in the labour relations system. In the federal jurisdiction, we see two notable instances of a balanced and consultative tripartite approach to labour law reform — the Woods Task Force26 in the late 1960s, and the Sims Task Force27 in the mid-1990s.

(ii) Woods Task Force 2005 CanLIIDocs 206

In 1968, the Woods Task Force was given the mandate to assess the federal collective bargaining regime and make recommendations on public policy and labour legislation.28 The Task Force itself was not tripartite in composition, consisting of four eminent labour relations and labour law policy scholars: H.D. Woods, A.W.R. Carrothers, John Crispo, and Gérard Dion. It conducted a full inquiry into federal and provincial labour laws in Canada, drawing on the experience of both sides of the labour bar as well as the expertise of academics. A tripartite Consultative Committee representing labour, management and government was struck to work with the Woods Task Force. The membership of the Consultative Committee was diverse, and included officers of the Canadian Pulp and Paper Association, the Canadian Labour Congress, the Canadian Railway Labour Executives and the International Brotherhood of Electrical Workers. On that committee’s advice, the Task Force concluded that private meetings with interested parties, and a general invitation to submit briefs, would be preferable to public hearings.29 The 40 groups with whom the Task Force met included national union and management organizations, union officers in industries under federal jurisdiction, and federal and provincial government officials.30 The informal, private and confidential nature of the meetings enabled the stakeholders

26 Woods Report, supra, note 3. 27 Sims Report, supra, note 4. 28 Woods Report, supra, note 3, at paras. 219-221. 29 Ibid., at para. 228 (Appendix H). 30 Ibid. Burkett 11/6/06 1:35 PM Page 338

338 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

to speak frankly about their particular industrial relations problems as well as about the broader problems facing the country. This tripartite approach gave the Task Force deeper insight into the issues that labour, management and government officials believed to be important, and gave the stakeholders the sense that their interests and concerns had been fully considered. The recommendations in the Task Force’s report (the Woods Report) focused on the central role that collective bargaining should play in labour market regulation: 2005 CanLIIDocs 206 Collective bargaining is the mechanism through which labour and management seek to accommodate their differences, frequently without strife, sometimes through it, and occasionally without success. As imperfect an instrument as it may be, there is no viable substitute in a free society. For this reason the emphasis in the remainder of this Report is placed on how the existing system can be improved, extended and preserved by a combination of parliamentary support, federal-provincial cooperation and voluntary action by the parties of interest.31 The Woods Report cited a number of impediments to effective collective bargaining. For example, trade union membership evidence requirements were too high, and unfair labour practice remedies were too weak. As well, the administrative practices of labour boards were too sluggish and overly judicial. The Report also suggested that the Canada Labour Relations Board (the predecessor to the Canada Industrial Relations Board) be given broad jurisdiction over all aspects of industrial relations conflict, in contrast to its then-limited jurisdictional reach. The Woods Report reviewed three alternative models of decision-making in the labour relations context. The first is “unilateral,” in which all power in the industrial relations system resides in one entity, be it the state or the employer. A second model is “bilateral,” in which at least one of the interested parties — labour, management, or the public as represented by government — is excluded from the process. The third model is “multilateral” (or tripartite), meaning that it recognizes the inevitable interplay of market and institutional forces in a mixed enterprise economy operating within a liberal democratic political system.

31 Ibid., at para. 431. Burkett 11/6/06 1:35 PM Page 339

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 339

The central focus of the Report was on collective bargaining and trade unionism, which it saw as indispensable elements of the Canadian industrial relations system. According to the Woods Report, “unions serve as a countervailing power to management; and within the wider socio-economic political sphere, they function as potential agents for transformation in an increasingly pluralistic society.”32 The Report praised the tripartite tradition within the Canadian industrial relations system, noting that this tradition enabled a high degree of trade union participation, employer determination, and government involvement. 2005 CanLIIDocs 206 The Woods Report was an important document that laid the groundwork for labour law reform across Canada through the 1970s, at both the federal and provincial levels. Almost every collective bargaining statute in Canada was reformed on the basis of the course charted by the Woods Report.33

(iii) Sims Task Force

Twenty-seven years after the Woods Report, in 1995, the Sims Task Force was established by the federal Minister of Labour to conduct a comprehensive review of Part I of the Canada Labour Code (the part dealing with collective labour relations). The objective was to identify options and make recommendations for legislative change, with a view to improving collective bargaining and reducing conflict, facilitating labour-management cooperation, ensuring effective and efficient administration of the Code, and addressing the changing workplace and employment relationship.34 Like the Woods Task Force, the Sims group itself was not tripartite in composition, consisting of two adjudicators (Andrew Sims and Paula Knopf) and a labour law scholar (Rodrigue Blouin). The Sims Task Force held public consultations across the country, met with labour and management groups governed by the Code, and received numerous written submissions. It conducted informal

32 Woods Report, supra, note 3, at para. 1. 33 G. Adams, “Towards a New Vitality: Reflections on 20 Years of Collective Bargaining Regulation” (1991), 23 Ottawa L. Rev. 139, at para. 11. 34 Sims Report, supra, note 4, chap. 1. Burkett 11/6/06 1:35 PM Page 340

340 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

meetings with labour law practitioners and more formal academic roundtables at several universities. Senior federal government officers met with a labour-management consensus group, comprising representatives of major union federations and associations of federally regulated employers. The Sims Task Force submitted its final report to the Minister of Labour on January 31, 1996. The Sims Report was timely for a number of reasons. In the mid-1990s, rapid socio-economic changes were having an inevitable impact upon labour relations. Until the mid- 1980s, workplaces governed by the Code had been largely govern- 2005 CanLIIDocs 206 ment-owned and highly regulated, with little direct competition. In the decade leading up to the Sims Report, regulation and government ownership diminished rapidly, while competition increased. To reduce costs, the government transferred jobs to the private sector or eliminated them completely. This put public-sector unions in a defen- sive mode, as the transfer of work tended to benefit smaller employers, where unionization rates were lower and organizing tended to be more difficult. The negotiation of the Canada-United States Free Trade Agreement, and later the North American Free Trade Agreement, added a further competitive element to the Canadian labour market. As North American trade barriers fell, Canadian businesses and employees came under mounting pressure to remain competitive with their American counterparts. This had a profound impact on collective bargaining in the federal sector. A strike or lockout which might in the past have carried little or no risk of loss of market share could now result in a major loss of business. Both unions and management had to adjust their strategies to this new industrial relations reality. Amidst all of the socio-economic changes taking place in Canada, the Sims Report tried to balance the competing interests at play: Our approach has been to seek a balance: between labour and management; between social and economic values; between the various instruments of labour policy; between rights and responsibilities; between individual and democratic group rights; and between the public interest and free collective bargaining. We seek a stable structure within which free collective bargaining will work. We want legislation that is sound, enactable and lasting. We see the Burkett 11/6/06 1:35 PM Page 341

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 341

too-frequent swinging of the political pendulum as being counter-productive to sound labour relations. We looked for reforms that would allow labour and management to adjust and thrive in the increasingly global workplace.35 Bill C-66, the federal government’s legislative response to the Sims Report, included a number of procedural and substantive elements recommended by that Report. In keeping with the crucial importance of tripartism in labour relations, the Bill instituted what is now s. 104.1 of the Canada Labour Code, requiring the Minister of Labour to meet periodically with representatives of employers and trade unions to discuss industrial relations issues. A host of substan- 2005 CanLIIDocs 206 tive reforms were also put into place:

¥ Amendments to the unfair labour practice provisions of the Code explicitly recognized an employer’s right to communicate with employees, if the employer did not use “coercion, intimida- tion, threats, promises or undue influence” (now s. 94(2)(c)). ¥ The CIRB was empowered to certify a union despite a lack of evidence of majority support, where the Board found that the employer had committed an unfair labour practice which prevented the union from obtaining such support (now s. 99.1). ¥ Employees who were dismissed or disciplined after certification, but before the first collective agreement was reached, were given just cause protection, enforceable through arbitration (now s. 36.1). ¥ The Bill did not impose a blanket ban on the use of temporary replacement workers during work stoppages, but prohibited their use if the purpose was to undermine the union’s representational capacity (now s. 94(2.1)). It should be noted that one member of the Sims Task Force, Rodrigue Blouin, dissented on this issue and recommended a ban on temporary replacement workers. ¥ During work stoppages, employees retained their entitlement to benefit and insurance programs that had been in effect before the dispute (now s. 94(3)).

35 Ibid., at p. ix. Burkett 11/6/06 1:35 PM Page 342

342 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

¥ The right to strike or lock out was made subject to the requirement that 72 hours notice be given to the other party (now s. 87.2(1)).

Overall, the Woods Task Force and the Sims Task Force are examples of a tripartite process committed to promoting stable, long- term labour law reform. They show that real consultation between employers, workers and government representatives, with contributions from experts in the field, can lead to enduring, consensus- driven legal reform. 2005 CanLIIDocs 206 Recent reforms at the provincial level stand in stark contrast to the tripartite approach of the two federal task forces. I now turn to consider the experience in Ontario which, though not unique, use- fully illustrates an overly politicized approach.

In retrospect, Ontario enjoyed relatively amicable, balanced labour relations throughout much of the 1970s and the 1980s. Trade unions and employers were fairly accommodating of one another’s interests, and the social partners shared a fundamental respect for the collective bargaining process itself, even in the face of disagreements on contentious issues. During the 1980s, strikes became less frequent, conflict at the bargaining table diminished, and settlements were generally achieved with less difficulty and rancour.36 Typical of the era, Premier Bill Davis (1971-1985) established the Premier’s Council, which consisted of a broadly representative group of leaders from various sectors of the industrial relations bar.37 During the Council’s tenure, the government genuinely sought significant input from both labour and management as part of the policy process. Tim Armstrong, Deputy Minister of Labour in Ontario from 1976 to 1986, describes a successful instance of balanced, tripartite public policy-making.38 In the early 1980s, there was a series of

36 Armstrong, supra, note 1, at p. 35. 37 Ibid., at p. 31. 38 Ibid., at pp. 32, 33. Burkett 11/6/06 1:35 PM Page 343

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 343

collective bargaining failures, accompanied by picket line violence, which resulted from disputes about the automatic dues check-off. In a new collective bargaining relationship, Radio Shack offered a voluntary revocable check-off of union dues, which was the statutory minimum at the time. The union representing Radio Shack employees sought the Rand formula,39 arguing that every member of the bargaining unit benefited from negotiated terms and should therefore contribute to the cost of collective bargaining. Since an automatic dues check-off was not an expense for the employer, unions argued that it should be legislated as a matter of right flowing from certifica- 2005 CanLIIDocs 206 tion, rather than be made subject to bargaining. To achieve a resolution, the Ontario government openly discussed the issue with labour and management. During the consultations, it became apparent that if the dues check-off was to be legislated, employers expected some meaningful statutory quid pro quo. Management representatives expressed concern that unions sometimes did not put employer “final offers” to bargaining unit employees for ratification, even though these offers might well be acceptable to them, and that as a result work stoppages were being unnecessarily and wastefully prolonged. The Ontario government saw theoretical and practical merit in both the union-side proposal for a legislated Rand formula and the management-side proposal requiring that employer final offers be put to an employee vote. The government therefore enacted an amendment package embodying both points of view. Neither side was completely satisfied, but the tradeoff was accepted without acrimony. According to Armstrong, this tradeoff would have been impossible were it not for the collaborative, non-polarized environment culti- vated by the Davis government’s tripartite approach. Since the Davis era, Ontario has moved away from the tripartite model of labour law reform. Over a period of ten years, the majority in the legislature shifted back and forth dramatically. The political pendulum moved to the left in 1990, when the pro-labour NDP came to power, then shifted to the right in 1995 with the election of a new Progressive Conservative government and its “Common Sense Revolution.” These sharp political changes were accompanied by a

39 See Radio Shack and U.S.W.A. (1980), 27 L.A.C. (2d) 246 (Simmons). Burkett 11/6/06 1:35 PM Page 344

344 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

scattered and disorganized process of labour law reform that left many mistrustful of the governance of industrial relations in the province.

(i) Reform under the Rae NDP Government

The NDP, led by Bob Rae, won a rather unexpected majority in September 1990. Ontario’s labour laws had not been substantially overhauled since 1975. In the intervening 15-year period, the demo- graphics of the Ontario workforce had changed considerably. The 2005 CanLIIDocs 206 number of part-time workers had almost doubled, from 430,000 in 1975 to 806,000 in 1991.40 One million more women had joined the Ontario labour force, and visible minorities were making up an ever- larger percentage of it. The proportion of workers employed in the service sector rose from 63% in 1971 to 71% in 1991, and the occupational segregation of women and visible minorities in that sector still plagued the Ontario workforce.41 In its first throne speech in November 1990, the NDP announced its intent to embark upon labour law reform. What followed over the next two years were committees, reports, cabinet submissions, discussion papers, an economic impact study, three months of consultation on a set of legislative proposals, and an all-party legislative committee consultation.42 Unfortunately, the employer community saw the labour law reform process as one-sided, and believed that the outcomes were pre-determined. In response, the government in March 1991 struck a committee of three management and three labour representatives, chaired by arbitrator Kevin Burkett. However, rather than being asked to review the Labour Relations Act and make recommendations for reform, the Burkett committee was given a list of 30 “reform topics” by the Minister of Labour, all of which were seen as highly favourable to the labour movement.43 The committee

40 H.C. Jain & S. Muthu, “Ontario Labour Law Reforms: A Comparative Study of Bill 40 and Bill 7” (1997), 4 C.L.E.L.J. 311, at p. 315. 41 Ibid., at p. 316. 42 Ibid., at p. 320. 43 Burkett, supra, note 24, at p. 168. Burkett 11/6/06 1:35 PM Page 345

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 345

was provided with neither staff nor a research budget, and was given only 30 days to produce its report.44 With the Minister having already set the agenda for a reform package along pro-union lines, there was little scope for meaningful negotiation and compromise. Indeed, the committee’s April 1991 report was a far cry from the consensus- driven, tripartite reports of the federal Woods and Sims task forces. It comprised two diametrically opposed documents: one from the union-side members, setting out 60 reform proposals, and one from the management-side members, essentially recommending preservation of the status quo. 2005 CanLIIDocs 206 In June 1992, the Ontario Minister of Labour tabled Bill 40,45 which came into force in January 1993.46 The preamble to the Labour Relations Act was repealed, and a purpose clause was inserted outlining the objectives of the Act, which focused on the promotion of freedom of association and the protection and enhancement of collective bargaining. A host of changes were made to many parts of the Act. Some of the most important amendments with respect to union certification were these:

¥ The Act’s coverage was expanded to include domestics and certain professionals (lawyers, architects, dentists). ¥ Full-time and part-time employees were to be included in the same bargaining unit at the time of certification. This allowed unions to apply for certification of small, easily organized units, and then to consolidate them into larger, more powerful units. ¥ Faster OLRB processes were provided for complaints arising from discipline or discharge during organizing campaigns. ¥ The OLRB was given authority to certify a trade union without evidence of majority support whenever an employer unfair labour practice meant that the true wishes of the employees were not likely to be ascertained by a vote, even if the Board was not satisfied that the union had membership support adequate for collective bargaining.

44 Ibid., at p. 169. 45 S.O. 1992, c. 21. 46 Ibid. Burkett 11/6/06 1:35 PM Page 346

346 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Bill 40 also made significant changes to the collective bargaining process:

¥ The use of temporary strike replacements was generally prohibited. An employer could not use bargaining unit employees or replacement workers to do the work of striking or locked-out employees or the work of managers. ¥ Employees were given just cause protection in cases of disciplinary action or dismissal following certification, or during bargaining to renew a collective agreement. 2005 CanLIIDocs 206 ¥ After a strike, returning employees were to have priority in filling the positions they held when the stoppage began. If there was insufficient work for all of them, they would be reinstated as work became available, according to seniority.

Subsequently, in 1994 the NDP government enacted the Agricultural Labour Relations Act, 199447 (the “ALRA”), which ended the historic exclusion of agricultural workers from collective bargaining. Notably, the ALRA was enacted following consultations with worker and employer representatives, and it included a number of compromises designed to address the concerns of farm employers. For example, it prohibited strikes in agriculture, and imposed binding arbitration through a final offer selection process. Nevertheless, the consultations clearly proceeded on the premise that collective bargaining would be extended to the agricultural sector. Farm employers fundamentally objected to this premise, but they concluded that the political climate in Ontario made it futile to press that objection, so they focused on seeking modifications to accommodate the unique characteristics of agriculture. In retrospect, it is clear that the NDP’s labour agenda was designed to respond only to trade union interests. While there was the appearance of tripartite consultation (e.g., the Burkett committee, the ALRA consultations), pro-union changes were in reality made unilaterally, without meaningful consultation with management. If tripartite consultations are to be useful, the interests of all parties must be given serious consideration, and the outcome must not be predeter- mined at the outset. Otherwise, highly politicized reform results, and

47 S.O. 1994, c. 6. Burkett 11/6/06 1:35 PM Page 347

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 347

the credibility of the governance process is tarnished in the eyes of the “losing” side.

(ii) Reform under the Harris PC Government

When the Progressive Conservative party came to power in Ontario in 1995 with Mike Harris as premier, one of its first priorities was to reform labour laws. Its campaign platform had promised to repeal virtually every one of the NDP’s labour law amendments or initiatives. It promised to reduce workers’ compensation premiums; 2005 CanLIIDocs 206 eliminate the employer payroll tax; make substantial amendments to the Pay Equity Act; and repeal the Employment Equity Act, Bill 40, and the ALRA.48 The labour movement was concerned not only by the lightning speed of the proposed legislative changes, but also by the lack of consultation before the changes were made. In contrast to the numerous (if token) consultations of the previous NDP government, the Conservatives pushed their amendments through the legislature in a mere three months.49 The PC statute, Bill 7, eradicated many of the key elements of Bill 40.50 For example:

¥ It eliminated access to collective bargaining for domestics, lawyers, architects, and dentists. The Agricultural Labour Relations Act was repealed. ¥ It removed the OLRB’s power to combine bargaining units. ¥ It removed the guarantee of union access, for organizing and picketing purposes, to private property to which the public normally had access. ¥ It removed the protection against discipline or discharge without just cause following certification and before the conclusion of a first collective agreement, as well as during the term of a collective agreement and during a strike or lockout. ¥ It removed the prohibition on the use of temporary replacement workers.

48 Ontario Progressive Conservative Party, The Common Sense Revolution (1995), online: . 49 The reform package was given royal assent on November 10, 1995: Jain & Muthu, supra, note 40, at p. 320. 50 S.O. 1995, c. 1. Burkett 11/6/06 1:35 PM Page 348

348 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

¥ It removed the OLRB’s power to certify a trade union without majority support in the bargaining unit, if the Board found that the true wishes of the employees were not likely to be ascertained due to an employer unfair labour practice.

Bill 7 also made other major changes which went beyond rolling back the NDP amendments. Most important was the move from a card-check system of measuring union support in organizing campaigns to a system of compulsory certification votes. Not surprisingly, the 1995 labour law reform process provoked 2005 CanLIIDocs 206 a great deal of dissatisfaction in the industrial relations community. Gord Wilson, president of the Ontario Federation of Labour, described the new amendments as doing “nothing more than empow- ering employers to harass and intimidate and discourage and eventually defeat workers who want to join a union.”51 Roy Adams criticized the Conservatives’ labour law reform process in these terms: The issue needs a lot of public exposure and debate. Instead, we get the accelerated passage of a vengeful Act, condemned by most labour-relations experts, and without consultation. This episode is the antithesis of the good government on which the Ontario Tories once prided themselves.52 Writing in 1998, Kevin Burkett, who had led the NDP-appointed committee in 1991, characterized the changes of the NDP-PC era as . . . one-sided labour law reform produced without meaningful consultation that has since spawned a second round of one-sided labour law reform, also produced without meaningful consultation, which has left a legacy of division, one-upmanship and uncertainty.53

51 The Globe and Mail, October 17, 1995. 52 “Why Harris Labour Policy is Bad for Ontario’s Economy,” The Globe and Mail, November 13, 1995, p. A-15. 53 Burkett, supra, note 24, at p. 168. For another viewpoint, see J. McCormack, “Comment on ‘The Politicization of the Ontario Labour Relations Framework in the 1990s’”(2000), 7 C.L.E.L.J. 325. Burkett 11/6/06 1:35 PM Page 349

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 349

(iii) Reform under the McGuinty Liberal Government

Having witnessed a tumultuous decade of labour law reform under its predecessors, the current Ontario Liberal government led by Premier Dalton McGuinty has made a commitment to promoting fair and balanced labour relations laws, which it sees as necessary to long-term productivity and prosperity. In this spirit, the Labour Relations Statute Law Amendment Act, 2005 has repealed some of the more controversial PC reforms. First, the 2005 legislation has eliminated the requirement that 2005 CanLIIDocs 206 unionized businesses post information outlining the procedures for union decertification. This requirement was provocative, as there was no corresponding requirement that employers post information about certification procedures in non-unionized workplaces. Even some members of the employer community were uncomfortable with it. Second, the new legislation repeals the requirement that unions disclose the names and remuneration of all union employees earning over $100,000 per year. The Liberal government viewed this provision as one-sided, and as an attempt to undermine relationships between unions and their members, since companies are not required to disclose equivalent information on management remuneration. Third, the Liberals have broadened the OLRB’s powers. The new legislation restores the OLRB’s long-standing authority to certify a union where employer unfair labour practices during an organizing campaign preclude the free expression of employee wishes regarding union representation. It also restores the Board’s power to dismiss an application for certification if the union’s violations of the Act preclude the free expression of employee wishes. Fourth, the amendments restore the OLRB’s power to order interim reinstatement of workers who are fired or disciplined during an organizing campaign because of their support for the union. Employers can still dismiss or discipline for misconduct that occurs during this period, if the dismissal or disciplinary action is not related to the organizing campaign. The Liberals’ agenda on labour relations in the agricultural sector provides some evidence that they are seeking a middle ground and are using a modified tripartite model to do so. As discussed Burkett 11/6/06 1:35 PM Page 350

350 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

above, the NDP enacted the Agricultural Labour Relations Act, extending collective bargaining rights to agricultural workers in Ontario, and the Conservative government repealed the legislation in 1995. After the Supreme Court of Canada’s decision in Dunmore v. Ontario (Attorney General),54 the Harris government enacted the Agricultural Employees Protection Act (“AEPA”), which, while protecting agricultural workers’ freedom of association, did not give them collective bargaining rights.55 The current Liberal government has endorsed the AEPA as a compromise solution, but has also moved to enhance the rights of farm workers by developing new health and 2005 CanLIIDocs 206 safety standards for agricultural workplaces. The Ministers of Agriculture and Labour, the Labour Issues Co-Ordinating Committee (which is a coalition of 14 farm and commodity groups), and the Farm Safety Association are currently working on standards that incorporate the principles of the Ontario Occupational Health and Safety Act.56 The former Agriculture Minister, Steve Peters (who is now Minister of Labour), has invited farmers and worker representatives to make their views known. On the whole, the current Liberal government may be seeking to move back to the province’s prior commitment to stability in labour law and to tripartism. Whether there will in fact be a return to the approach of the Davis era remains to be seen.

4. CONCLUSION: EMPLOYERS AND TRIPARTISM

Having discussed the importance of tripartism in the international labour sphere, and the appropriate role of tripartite principles in labour law reform in Canada, I would like to conclude by offering some thoughts about the perspective of Canadian employers on tripartism. Based on the historical influence of the business sector on policy-making, one might think that employers would prefer to have

54 [2001] 3 S.C.R. 1016. 55 Recently, in Fraser v. Ontario (Attorney General), [2006] O.J. No. 45 (QL) (Sup. Ct. J.), the AEPA was held not to violate s. 2(d) of the Canadian Charter of Rights and Freedoms. 56 R.S.O. 1990, c. O.1. On June 30, 2006, a newly promulgated regulation to the Occupational Health and Safety Act will bring farming under the purview of the statute, subject to certain limitations and conditions. See O. Reg. 414/05. Burkett 11/6/06 1:35 PM Page 351

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 351

an exclusive relationship with governments in the area of labour relations (i.e., a bipartite relationship). One might further conclude that tripartism principally benefits workers, by giving their representatives a formalized voice that can dilute the historic influence of employers. However, I believe that employers are more supportive of tripartism now than ever before. In my view, there are a number of reasons for this, and I will discuss three of them. First, the recent reform experiences in Ontario have made it clear that the interests of employers can be ignored where the government of the day is ideologically aligned with trade union interests. 2005 CanLIIDocs 206 If employers wish to have their interests fully considered at all times regardless of the prevailing government’s ideological leanings, they can hardly advocate the exclusion of worker representatives from the policy process. This point is well illustrated by the ongoing debate about whether the Canada Labour Code should be amended to prohibit the use of temporary replacement workers during a work stoppage. The Sims Task Force fully examined the issue, and a majority of its members recommended against an outright prohibition, proposing instead a compromise prohibiting the use of such workers only where they would be utilized “for the purpose of undermining the union’s representative capacity.”57 As noted earlier in this paper, that compromise was subsequently embodied in s. 94(2.1) of the Code. In the present minority Parliament, a private member’s bill has been advanced that would prohibit the use of temporary replacement workers to perform the duties of employees who are on strike or are locked-out. Bill C- 257,58 which appears to be broadly supported by the Bloc Québécois and the NDP, is designed to attain a long-term objective of the labour movement by making it impossible for employers to maintain operations during a strike or lockout. Obviously, achieving this objective runs counter to the interests of employers, who would certainly be rendered more vulnerable from an operational and economic perspective. Bill C-257 is entirely at odds with the recommendation of the majority of the Sims Task Force, which considered the interests

57 Supra, note 4, at p. 131. 58 Bill C-257, An Act to Amend the Canada Labour Code (replacement workers), First Reading May 4, 2006. Burkett 11/6/06 1:35 PM Page 352

352 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

of both employers and trade unions on the question of replacement workers, and formulated the compromise found in the current Code. In my view, the enactment of a ban on temporary placement work- ers59 would be an example of politically-motivated labour law reform divorced from tripartism. Employers can and should rely on tripartite principles to oppose the process leading to such a reform. However, if their opposition is to rest on a credible basis, employers must demonstrate support for the principles of tripartism all the time, not just when it is opportune. A second reason why employers have become supportive of tri- 2005 CanLIIDocs 206 partism is that their interests are always best served by a labour relations system which is stable, certain and predictable. Too much change, especially fundamental change, creates uncertainty that hin- ders business planning. For this reason, I believe that the employer community has embraced (and should continue to embrace) an effective model of tripartism that transcends political differences and con- templates long-term, stable solutions based on gradual and incremental change. Employers might not always achieve their desired outcomes through a tripartite reform process, but at least they will not have to endure continuous shifts in the law. Third, Canadian employers have become quite sophisticated in their approach to international labour issues. Through the Canadian Employers Council, they are playing a greater role at the ILO and in the Summit of the Americas process, where tripartite principles govern. Canadian employers are thus becoming increasingly familiar with the role of tripartism in the international sphere. This, in turn, is helping to make them more comfortable with tripartism in the domestic milieu, and the labour law reform process. Ultimately, it seems to me that workers and employers can find considerable common ground when it comes to labour law reform and tripartism. Quite simply, neither side can afford to be excluded from the policy process. Politically-motivated reforms for the benefit

59 There have been a number of attempts over the past three years to enact federal legislation banning temporary replacement workers. In 2005, a bill similar to Bill C-257 was defeated by only 12 votes. MPs from the NDP, the Bloc Québécois, and some Liberals voted in favour, while Conservatives and most Liberal MPs voted against. Even if Bill C-257 is defeated, one can anticipate further attempts in the future to ban replacement workers. Burkett 11/6/06 1:35 PM Page 353

REFLECTIONS ON TRIPARTISM AND LABOUR LAW REFORM 353

of one side or the other may have short-term appeal for the immediate beneficiary, but these reforms generally do not survive beyond one or two election campaigns. Moreover, they contribute to political pendulum swings, which are detrimental to the long-term best interests of both sides. Tripartism promotes the stability and legitimacy of the labour relations system by encouraging consultation, rational discussion, and the pursuit of a consensus. As I have explained above, tripartism is a procedural rather than a substantive concept. However, the substance of labour law will be more readily accepted by the social partners when the process leading to its enactment is fair and 2005 CanLIIDocs 206 inclusive. I realize that this is hardly a groundbreaking proposition, but the failure of past rounds of labour law reform indicates that the importance of a tripartite approach has not been so obvious. If such failures are to be avoided in the future, worker and employer representatives must look beyond short-term political advantage and focus on long-term interests, which include the health of the labour relations system as a whole. Burkett 11/6/06 1:35 PM Page 354 2005 CanLIIDocs 206 Slinn 11/6/06 1:35 PM Page 355

The Limitations of Pieces of Paper: A Role for Social Science in Labour Law

Sara Slinn*

In this paper, the author argues that social science research should be given a more prominent role in formulating, applying, and evaluating labour laws. Unlike traditional legal research, which has a limited scope and tends to be based on rhetoric and the adversarial approach, social science research is characterized by systematic observation or experimentation intended to obtain 2005 CanLIIDocs 206 positive knowledge or empirical evidence. It can therefore provide information that is more accurate and objective than the assumptions, inferences and untested beliefs on which the traditional approach is often founded (for example, those relating to the behaviour of the so-called “normal” or “reasonable” employee when employer unfair labour practices are alleged). The author also provides an introduction to the methods of social science research, both qualitative and quantitative, and illustrates the application of the latter to a labour law question (the effect of statutory “ability to pay” criteria on wage awards in interest arbitration). She explains, however, that one of the important limitations of social science research lies in the fact that it cannot answer the normative questions, or dictate the value judgments, which underlie the drafting and interpreting of laws.

1. INTRODUCTION

Nearly 50 years ago, John Dunlop called for greater emphasis on what actually happens in employment relations, and less on cases and legislation. In his words: “We need a greater sense of the limitations of pieces of paper.”1 For the most part, lawyers, legal academics and law-makers have been unresponsive to Dunlop’s appeal. Many debates in labour law and much labour law reform continue to be informed more by rhetoric and assumptions than by evidence or facts. As James Gross has said of the U.S. experience “[labour law is made] often in ignorance, on emotion, or simply as part of the political bargaining process.”2 This is also true in Canada.

* Assistant Professor, Faculty of Law, Queen’s University. 1 J. Dunlop, “Consensus and National Labor Policy,” in Proceedings of the 13th Annual Meeting of the Industrial Relations Research Association, Presidential Address (December 1960), at p. 7. 2 J.A. Gross, The Reshaping of the National Labor Relations Board (Albany, N.Y.: State University of New York Press, 1981), at p. 264. Slinn 11/6/06 1:35 PM Page 356

356 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Labour law is broader and richer and more complex than what is contained in statutes and case reports. The workplace is the “real world” of labour law, where the legal rubber hits the road. This is where, as Dunlop has urged, we should be looking to see how our laws function or fail, and where we should look when we come to create, apply or amend laws. It is in exploring this “real world” dimension of labour law that social science can help. Social science research can be useful in at least two ways: by alleviating the shortcomings of legal research, and by providing benefits that arise from its own unique character. It can 2005 CanLIIDocs 206 help us discover whether there is a difference between what the law says and what it actually achieves. It can help to replace assumptions and beliefs with facts and evidence, which can be used to formulate and apply the law. Labour law affects the lives of many people as well as the economy and society. It is therefore important to make well-informed decisions about how this law is to be formulated and applied. This article is a brief foray into the uses and limitations of social science in assessing labour laws. The article is organized into six sections. First, social science research is briefly introduced and described, and the objects and approaches characterizing social science research are described and contrasted to traditional methods of legal research. The next part offers particular examples of uses of social science research in formulating, applying and evaluating labour laws. Part four provides a more detailed explanation and examples of the uses of social science research in law. The fifth part considers some of the limitations of such research. As valuable as social science evidence may be, it is not a cure for all that ails labour law, and will not provide the answer to all its questions.3 The article concludes by urging the labour law community to engage with social science to help achieve better, clearer, more effective laws.

2. WHAT IS SOCIAL SCIENCE RESEARCH?

Social science research differs substantially from traditional methods of legal research, and it is out of these differences that much

3 See B. Townley, Labor Law Reform in U.S. Industrial Relations (Aldershot, England: Gower, 1986), at p.118, for a thorough discussion of this point. Slinn 11/6/06 1:35 PM Page 357

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 357

of its potential to contribute to law-making arises. As one commenta- tor describes it: “A trenchant if somewhat unfair way of comparing legal scholarship to that in the social sciences is that while lawyers tell stories, social scientists test hypotheses.”4 The approaches and objectives of legal professionals and scholars are distinctly different than those of researchers engaged in social sciences, and many of these differences can be linked to the traditions of the “legal method.” These differences include their fundamental approaches to research, to seeking truth, and to assumptions, inferences and normative judgment. 2005 CanLIIDocs 206

(a) Research Approach

Social science research is characterized by systematic observation or experimentation to obtain positive knowledge (or empirical evidence), and can serve a variety of purposes.5 Social science research aspires, at least, to find objective truths, free of illusions, biases and faulty knowledge.6 As Myrdal describes it, perhaps ideal- istically: The ethos of social science is the search for “objective” truth. The faith of the student is his conviction that truth is wholesome and that illusions are damag- ing, especially opportunistic ones. He seeks “realism,” a term which in one of its meanings denotes an “objective” view of reality.7 This type of research requires explicit definition of factors, open identification of biases and limitations in research, and express identification of assumptions. It also involves seeking data from a wide range of sources.

4 R.S. Thomas, “The Increasing Role of Empirical Research in Corporate Law Scholarship: A Review of Mark Roe, The Political Determinants of Corporate Governance: Political Context, Corporate Impact” (2004), 92 Geo. L.J. 981, at p. 992. 5 T. Palys, Research decisions: quantitative and qualitative perspectives, 3d ed. (Scarborough, Ont.: Thomson Nelson, 2003), at pp. 77-82. This description of the purposes of social science research is drawn from Palys’ typology of descriptive, explorative, relational and explanatory purposes of research. 6 G. Myrdal, Objectivity in Social Research (London: Duckworth, 1970), at pp. 3-6. 7 Ibid., at p. 3. Slinn 11/6/06 1:35 PM Page 358

358 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Data for analysis are collected in a variety of ways, ranging from use of existing data sets to observational data, to experimental data elicited by the researcher’s own experiments. Observational research involves collection and analysis of data, often from primary sources, such as information from a labour relations board about cases processed. It includes using surveys to obtain information and, most innovatively, using computer simulations of parties’ interactions.8 Data can also be generated by the researcher through controlled human experiments, such as surveys in which participants are asked to respond to hypothetical scenarios. These experiments can 2005 CanLIIDocs 206 investigate behavioural assumptions or economic theories.9 Different types of experimental research have, as their common thread, the introduction of a change or “manipulation” to the research subject in order to analyze the effects of the change.10 The sources for social sciences data are practically infinite. In contrast, the scope of traditional legal research is very limited. Because the object of legal training is to learn to interpret legal doctrine, students are taught to find the law through primary and secondary sources (generally legislation, cases and commentary), then how to interpret and apply the doctrine to a factual pattern.11 Thus, traditional legal research can aptly be described as “begin[ning] and end[ing] at the door of the law library,”12 and is likely to overlook many influences on law which could be captured by social science research. The result is often to foster reliance on untested assumptions and unfounded inferences.

(b) Different Truths

As noted above, social science research is distinguished by its use of systematic analysis to obtain knowledge, with the aim of

8 R. Croson, “Why and How to Experiment: Methodologies from Experimental Economics,” [2002] U. Ill. L. Rev. 921, at p. 923. 9 Ibid. 10 Ibid. 11 S. Hammond & P. Ronfeldt, “Legal Methods: Asking New Questions about Law and the World of Work,” in K. Whitfield & G. Strauss, eds., Researching the World of Work (Ithica and London: Cornell University Press, 1998) 227, at p. 228, citing G. Williams, Learning the Law (London: Stevens, 1982). 12 Ibid., at p. 229. Slinn 11/6/06 1:35 PM Page 359

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 359

discerning objective truths. In contrast, and drawing from the practising lawyer’s arsenal of skills, traditional legal research focuses on persuasion, often through the tool of rhetoric and adversarialism, rather than on objective truth. Epstein and King, authors of a lengthy critique of the existing methods of empirical legal research, contend that “persuasion and advocacy are appropriate to the courtroom, but ... ‘the faculty commons’ is a place in which the truth, and not just a particular version of it, matters.”13 Goldsmith and Vermeule provide a spirited reply to this criticism, arguing that the traditional legal approach may simply be a different, more roundabout, means to the 2005 CanLIIDocs 206 truth: [T]he contest of “particular versions” of truth ventilated by legal articles that are tendentious when taken separately may, at the systemic level, produce increasingly accurate approximations of truth, as scholar-advocates criticize the work of opposing camps. That possibility transposes the standard justification for the adversary system from the courtroom to the faculty commons.14 Social science also deals with facts very differently than does the legal world. Though lawyers and traditional legal researchers are trained in the use of facts and evidence in the courtroom, this does not include training in the interpretation, analysis, or critical assessment of evidence as practised in social science.15 Therefore, while rhetoric and argumentation may be able to address issues that can be resolved through logic and deduction, some questions require observation, testing, and empirical data.16 It is on these latter types of questions that social science research is best suited to contribute to law.

The prime importance of objectivity and accuracy in social sciences is reflected in efforts to minimize bias and unnecessary assumptions, to account for all factors that may influence the process

13 L. Epstein & G. King, “The Rules of Inference” (2002), 69 U. Chicago L. Rev. 1. 14 J. Goldsmith & A. Vermeule, “Empirical Methodology and Legal Scholarship” (2002), 69 U. Chicago L. Rev. 153. 15 Hammond & Ronfeldt, supra, note 11, at pp. 233-234. 16 T.S. Ulen, “A Nobel Prize in Legal Science: Theory, Empirical Work, and the Scientific Method in the Study of Law,” [2002] U. Ill. L. Rev. 875, at p. 879. Slinn 11/6/06 1:35 PM Page 360

360 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

being measured, and to clearly identify the assumptions that are being made. In contrast, the legal approach tends to make a number of assumptions about how law is made and interpreted. Such assumptions are often disguised, perhaps even by law-makers themselves, as “objective tests” or “reasonable inferences.” The assumptions, often implicit, may lead legal researchers to overlook important sources of and influences on law, and can lead to biased outcomes and inaccu- rate conclusions.17 For example, labour boards are allowed substantial discretion in decision-making, based on their labour relations expertise. However, 2005 CanLIIDocs 206 speaking of the National Labor Relations Board’s decisions on employer campaigns against unionization, Getman points out that the “the source of the Board’s presumed special knowledge has never been identified.”18 The fact that the NLRB has experience in interpreting and applying the law does not provide it with knowledge of the validity of behavioural assumptions on which it founds its decision, and the NLRB has no means of actually measuring the effect, for instance, of different employer tactics on employee free choice.19 Not only is the application of the law based on untested beliefs and assumptions, but lawyers tend to evaluate the effects of law based on impressions and anecdotal evidence. As Hammond and Ronfeldt contend, “such evaluations tend to be based on untested behavioural assumptions and are more or less fact-free.”20 Assumptions in labour law that are rarely tested fall into three categories: assumptions about the politics of law-making, assumptions arising from the failure to recognize informal sources and institutions of law, and behavioural and factual assumptions that affect law-making.21 Such assumptions make it possible to ignore important influences on the creation of legislation, and its interpretation and application. The first two categories are discussed below, while behavioural and factual assumptions are dealt with at greater length in the third part of this article.

17 Much of this is drawn from Hammond and Ronfeldt, supra, note 11. 18 J.G. Getman, S.B. Goldberg & J.B. Herman, “NLRB Regulation of Campaign Tactics: The Behavioural Assumptions on Which the Board Regulates” (1975), 27 Stan. L. Rev. 1465, at p. 1467. 19 Ibid., at p. 1468 [footnote omitted]. 20 Hammond & Ronfeldt, supra, note 11, at p. 233 [emphasis in original]. 21 Ibid. Slinn 11/6/06 1:35 PM Page 361

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 361

The traditional legal approach assumes that legislation and case law are insulated from, and therefore untouched by, social and political forces, such that changes in legal doctrine result from liberal democratic processes, and statutory law is an expression of democratic will which, in turn, promotes the public interest.22 This approach regards courts as employing liberal democratic ideals in applying and interpreting legislation, deferring to the will of the legislature, and otherwise being unbiased in their interpretation and application of the law.23 Similarly, decision-makers are assumed to be unbiased in their interpretation and application of law.24 As a result, 2005 CanLIIDocs 206 the traditional legal approach ignores numerous factors that influence and are affected by law — factors which may, however, be recognized by social scientists. One of the many informal sources and institutions of law is the array of interactions between the parties before any formal hearing takes place. These interactions (all of which may be accompanied by facilitation or negotiation) may well determine whether a dispute will be brought to a tribunal or courtroom, how the dispute might be processed before reaching the legal forum, or if the claim will be withdrawn or settled.25 In general, legal scholars ignore these processes (which in labour law are typically embodied in the grievance procedure), and focus only on legislation and formal decisions of tribunals and courts.

3. USING SOCIAL SCIENCE IN LABOUR LAW-MAKING

Social science research and evidence may be useful at many stages of the law-making process. It can help to measure the effectiveness of a law, to determine whether the law has achieved its intended purpose, or whether it has had unintended and possibly undesirable consequences. Similarly, it can help us to predict or anticipate the effects of changing the law. In addition to measuring legislative and judicial outcomes, social science evidence can be used to guide normative choices in

22 Ibid., at p. 230. 23 Ibid., at pp. 230-231. 24 Ibid., at p. 231. 25 Ibid. Slinn 11/6/06 1:35 PM Page 362

362 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

drafting and applying legislation — that is, in how we choose to shape the law in the first place. It can be of assistance in drafting, creating and reforming law by providing information to replace common-sense generalizations about human nature and assumptions about what is “normal” or “reasonable” behaviour.26 Set out below are examples of how social science research can be used to formulate, apply, and evaluate labour law at each stage of the law-making process.

(a) Formulating Law 2005 CanLIIDocs 206

At many points in the process, law-makers rely on untested behavioural and factual assumptions. Policymakers, drafters and legislators generally begin by debating and identifying the goals of the legislation or the principles it is to embody. (For example, one of the goals or underlying principles of labour legislation may be to encourage union representation.) Often, though, this is a policy decision that is not based on facts or assumptions. Rather, it is a normative choice. At the same time, the objectives of legislation may involve different, and sometimes competing, goals and principles, which decision-makers are left to reconcile or balance. For instance, the Ontario Labour Relations Act contains the conflicting purposes of giving employees the right to choose to join and support a union,27 encouraging communication between employers and employees in the workplace,28 and protecting employer communications.29 The legislation provides little or no guidance to the Labour Relations Board on how to reconcile these principles; it is up to the Board to determine the proper balance.

(b) From Goals to Rules

In the next stage of law-making, goals or principles must be translated into rules that can be applied. This step often leads

26 See T.L. Meares, “Three Objections to the Use of Empiricism in Criminal Law and Procedure — and Three Answers,” [2002] U. Ill. L. Rev. 851, at p. 872. 27 Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 2 and 5 (“OLRA”). 28 OLRA, s. 2. 29 OLRA, s. 70. Slinn 11/6/06 1:35 PM Page 363

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 363

law-makers to make behavioural or factual assumptions about what actions will achieve the desired goal directly or indirectly, by deterring or encouraging certain actions or behaviours. As an example, labour legislation seeks to achieve the goal of industrial peace and a reduction in work stoppages by establishing a statutory procedure that employers and unions must comply with before reaching a legal strike or lockout position. This procedure relies on the assumption that a “cooling-off” period will discourage parties from striking or locking out, and encourage them to settle bargaining disputes peace- fully. This assumption may be correct, but it is not based on evidence 2005 CanLIIDocs 206 of the effectiveness of such a procedure.

At the end of the legislative process it is left to decision-makers to interpret and apply the law. In this phase of the law-making process, decision-makers frequently rely on assumptions and inferences. An example of this is the restriction on employer communications with employees during organizing. The legislature has enacted rules prohibiting employers from threatening, coercing or intimidat- ing employees to discourage them from joining a union or exercising rights under the legislation.30 These rules are based on the belief, or assumption, that employer actions such as these interfere with employees’ ability to freely decide whether to seek union representation. However, the statute does not identify what employer actions will breach these provisions. It is up to the Board to interpret the prohibition, and the Board relies on its expertise to assess whether particular instances of employer conduct constitute unlawful interference. Essentially, this represents the Board’s “best guess” about the effect of the conduct, and is rarely supplemented even by evidence from individual employees.31 Boards tend to characterize the test they apply as “objective,” or one based on the response of a “reasonable employee.” For instance, in British Columbia, the test is described as follows: “The test ordi- narily applied in determining if there was improper pressure is an

30 See, for instance, OLRA, ss. 72 and 76. 31 Viva Pharmaceuticals Inc., [2002] B.C.L.R.B.D. No. 9 (QL), at para. 89. Slinn 11/6/06 1:35 PM Page 364

364 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

objective one, i.e. whether it was reasonable to infer that some employees would feel pressured into voting against the union.”32 In one case the Board took pains to emphasize that this test did not require the union to provide direct evidence of a negative effect.33 Similarly, the Ontario Labour Relations Board (OLRB) refers to the “employee of average intelligence and fortitude” to determine the boundaries of unlawful employer influence: “the objective test long used by the Board in such cases is whether the alleged conduct would likely affect the ability of employees of average intelligence and fortitude to freely express their true wishes in a representation vote.”34 2005 CanLIIDocs 206 Such objective or “reasonable employee” tests purport to reflect the response of the average, reasonable person. Clearly, this could be informed by empirical evidence. Experimental economics, for instance, investigates the characteristics of the “rational economic person.” Similarly, experimental research could help determine how a reasonable employee responds to various forms of employer conduct in different contexts.35 Alternatively, courts and boards could look to existing social science evidence that examines the effects of various types of employer conduct on employees.36 This research has found that union avoidance activity by employers is extremely common, and that many employers engage in conduct they believe to be unlawful; it has also measured the effect of different types of union avoidance activities on the likelihood of certification.37 In addition, there is evidence that some of the assumptions commonly made by boards may be incorrect. For instance, conduct that is often found to be unlawful,

32 Ibid. 33 Ibid. 34 Capelas Homes Ltd., [1998] O.L.R.D. No. 3121 (QL), at para. 27. 35 See T.G. Field Jr. & J.V. Field, “ ‘. . . And Women Must Weep’ v. ‘Anatomy of a Lie’: An Empirical Assessment of Two Labor Relations Propaganda Films” (1973-1974), 1 Pepp. L. Rev. 21, as an example of such experimental research into influence on employees. 36 See T. Thomason & S. Pozzebon, “Managerial Opposition to Union Certification in Quebec and Ontario” (1998), 53 R.I. 750; K. Bentham, “Employer Resistance to Union Certification” (2002), 57 R.I. 159; C. Riddell, “Union Suppression and Certification Success” (2001), 34 Can. J. Econ. 396. 37 Bentham, supra, note 36; Riddell, supra, note 36. Slinn 11/6/06 1:35 PM Page 365

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 365

such as individual employee interrogation, actually encourages certification.38 As noted above, it is often left to the labour board to determine the appropriate balance among competing rights under the legislation. This balancing exercise requires the decision-maker to test or measure one set of rights or interests against another, which clearly invites empirical research.39 Meares observes that decision-makers, when applying balancing tests, frequently make empirical statements (seemingly intended to give the decision authority and legitimacy) but rarely even try to evaluate available empirical evidence.40 These 2005 CanLIIDocs 206 decisions would gain greater authority if empirical statements were supported with social science evidence.41 “Balancing of interests” tests are the most obvious example of this type of exercise, and are widely used in labour law. One example is the test used under s. 70 of the OLRA to determine whether the employer has committed an unfair labour practice. Where there is no direct evidence of the employer’s motive, the OLRB will balance conflicting interests to decide whether to infer an improper motive. That is, a violation of s. 70 can be found where the employer’s actions have a significant negative effect on legitimate union activity, even if the employer has acted in good faith.42 The balancing test stipulates that the Board must weigh the effects of the employer’s conduct on protected union activity against the interests of the employer in managing its business.43 In applying this test, the OLRB must often infer the effects of employer conduct, relying on assumptions about the consequences of the employer’s actions, and with no clear method of measuring the importance or value of the competing interests. Clearly, empirical evidence of the effects of the employer conduct would be helpful in applying this test.

38 Ibid. 39 Meares, supra, note 26, at pp. 868-869. 40 Ibid. 41 Ibid. See also pp. 855-856 for an excellent discussion of the role of empirical analysis in interpretation and application of balancing of interest tests in the criminal law context. 42 Int’l Wallcoverings and C.P.U., Local 305 (1983), 4 Can. L.R.B.R. (N.S.) 289 (Ont. L.R.B.). 43 See Carleton University, [1998] O.L.R.B. Rep. January/February 17, at para. 50. Slinn 11/6/06 1:35 PM Page 366

366 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Another area of labour legislation that relies heavily on untested assumptions is remedies. The purpose of remedies in labour law is to compensate the injured party and to deter wrongdoing. Boards are supposed to use their expertise to tailor the remedy to the circumstances of the particular case, and to order a remedy that will achieve these purposes. This requires the board to assess the effect of the violation and the likely effect of a particular remedy: whether it will remedy the harm caused, and whether it is likely to deter further misconduct. Generally, the board makes these determinations by drawing reasonable inferences based on its experience and evidence 2005 CanLIIDocs 206 from that workplace. However, at both stages of assessment, empirical evidence could be useful to replace assumptions and inferences with evidence from large-scale studies of the effects of various types of wrongdoing and of remedies. Evidence justifying the choice of remedy — demonstrating whether or not it counters the mischief or is a deterrent — could clearly be helpful. A recent example of a hotly debated legislative change to remedies is remedial certification. It was removed from Ontario’s legislation in 199844 by the Harris Conservative government and reinstated in June 200545 by the McGuinty Liberal government. The legislation provides that remedial certification is available as a remedy if, as a result of the employer’s unfair labour practices, the true wishes of employees were not likely to have been reflected in the representation vote, or the union was unable to demonstrate that it had at least 40 percent support at the time of application.46 In these circumstances, the OLRB may order remedial certification if “no other remedy would be sufficient to counter the effects of the contravention.”47 One side of the debate contended that certification was the only effective remedy for the most egregious employer unfair labour practices and was an effective deterrent to employer misconduct during organizing. The other side argued that imposing certification on employees violated their rights and was ineffective to remedy the wrongdoing. This argument was made against the backdrop of a highly publicized OLRB decision to award remedial certification to a

44 Economic Development and Workplace Democracy Act, 1998, S.O. 1998, c. 8. 45 Labour Relations Statute Law Amendment Act, 2005, S.O. 2005, c. 15, s. 2. 46 OLRA, s. 11(1). 47 OLRA, s. 11(2). Slinn 11/6/06 1:35 PM Page 367

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 367

unit of employees at a Wal-Mart outlet. In restoring the Board’s power to order remedial certification, the McGuinty government stated that this remedy safeguarded employees’ right to choose union representation.48 However, neither these assertions, nor the policy, nor the legislative change, were based on evidence of the remedial or deterrent effect of remedial certification. In the end, both the 1998 and the 2005 changes were based on assumptions and inferences. Perhaps a great deal of debate and political energy could have been saved if research had been done to investigate these questions and measure the effectiveness of this remedy. 2005 CanLIIDocs 206 A second example of remedial decision-making that could benefit from social science evidence is the use of “but for” tests. For instance, in the context of remedial certification in British Columbia,49 the test applied by the province’s Labour Relations Board (BCLRB) is whether, but for the employer’s unfair labour practice, the union would likely have obtained the requisite support for certification.50 The Board considers a number of factors in making this determination, including “the seriousness of the employer interference and the reasonable effect (assessed objectively) of that interference on employees.”51 Thus, the Board applies the test based on assumptions and beliefs about the effect of the interference, in the absence of evidence from individual employees. Again, empirical evidence would be useful to substantiate these inferences.

(d) Evaluating and Predicting Effects

Finally, once legislation is passed and its interpretation and application is established, there is generally no review of how the law is functioning. Or, if there is, it tends to be impressionistic, anecdotal, or abstract, without any systematic use of empirical or experimental evidence.

48 Ontario Ministry of Labour, News Release, “Ontario’s Workplaces Return to Balanced Labour Relations” (June 13, 2005), at http://www.labour.gov.on. ca/english/news/2005/05-78.html. 49 British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244, s. 14(4)(f). 50 Cardinal Transportation B.C. Inc. and C.U.P.E., Local 561 (1996), 34 Can. L.R.B.R. (2d) 1 (B.C.L.R.B.) (leave for reconsideration of B.C.L.R.B. Nos. B463/94 and B232/95), at paras. 361-362. 51 Ibid., at para. 317. Slinn 11/6/06 1:35 PM Page 368

368 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Social science research can investigate the effects of a law and shed light on whether the law has achieved its purpose and on the effects of the law. Notably, research on the effects of “ability to pay” legislation on arbitrators’ wage awards, discussed below, suggests that the legislation has not had its intended effect, namely, to suppress wage increases. A second example is research on the effects of employers’ union avoidance tactics which, as one of its findings, determined that 12% of employers participating in the survey admit- ted to engaging in conduct they believed to be an unfair labour practice, and 94% engaged in some form of union avoidance; this 2005 CanLIIDocs 206 suggests that unfair labour practice laws are not successfully deterring employer misconduct.52 In any event, law is not a “silver bullet” and we cannot always anticipate its effects, some of which may be undesirable. Nevertheless, it may be very helpful to discover what those effects are. For example, in the case of a change from card-based to mandatory vote certification, empirical research determined that this was associated with a reduction in the likelihood of certification of certain types of bargaining units.53 Although it was widely anticipated that the introduction of mandatory vote certification would lead to a drop in unionization, it was not necessarily anticipated that the effects would be felt more strongly by some groups of employees than by others. However, according to the research, there were significant differential effects among groups of employees.54 Finally, social science research can be used to predict effects of changes in laws. For instance, studies of the change in legislation between card-based and mandatory vote certification procedures, and its influence on employers’ union avoidance efforts, provides insight into what are likely to be the results of a similar change in legislation in other jurisdictions.55

52 Bentham, supra, note 36. 53 S. Slinn, “An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification” (2004), 11 C.L.E.L.J. 347. 54 Ibid. 55 C. Riddell, “Union Certification Success under Voting Versus Card-Check Procedures: Evidence from British Columbia, 1978-1998” (2004), 57 Indus. & Lab. Rel. Rev. 493; Slinn, supra, note 53; S. Slinn, “The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis” (2003), 10 C.L.E.L.J. 399. Slinn 11/6/06 1:35 PM Page 369

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 369

4. WHAT CAN SOCIAL SCIENCE DO?

Social science research can serve a number of objectives, as the examples above show. It can be descriptive, providing facts and insights about the features of individuals, situations or institutions. It can be exploratory, seeking information to guide further research. It can also discern relationships, including causal relationships, between two or more factors or variables, and can measure the magnitude and direction of the relationship, as well as the “statistical significance” or reliability of the measure.56 It can even identify and 2005 CanLIIDocs 206 measure the influence of intervening factors and interaction effects, and groups of factors where the effect of the whole is greater or less than the sum of its parts — for instance, the effect of a combination of employer campaign tactics on a certification attempt. In this part of the paper, the two main types of social science research are introduced. One of these types, quantitative research, is illustrated by a detailed explanation of how this approach is applied to a question in labour law.

(a) Quantitative and Qualitative Research

Social science research is commonly divided into quantitative and qualitative research. Although both are guided by the same logic and inferences and the processes are similar, the methods differ greatly.57 The two categories are briefly described below, though the remainder of this article focuses on quantitative rather than qualitative research, since the former is more readily applicable to labour law. Quantitative research generally involves the use of numerical data, including primary or secondary data, such as case information collected by labour relations boards. This type of research is guided by “research questions.” Questions may be descriptive, such as: How do employers rate on occupational health and safety knowledge? They may also be inferential: Do employer captive audience meetings discourage employees from supporting unionization?

56 This is based on Palys’ typology of research purposes, supra, note 5. 57 G. Marshall, ed., Oxford Dictionary of Sociology, 2d ed. (Oxford University Press, 1998), at pp. 543-544. Slinn 11/6/06 1:35 PM Page 370

370 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Alternatively, quantitative research may be guided by the use of hypotheses about relationships between or among variables. Hypotheses are tested using statistical analysis of a sample from which the researcher infers conclusions about the population.58 Hypotheses can be set out in three different ways. First, a hypothesis can predict that there is no relationship between variables (called a “null hypothesis”). For example, it could be hypothesized that there is no relationship between an employee’s attending an employer speech and the employee’s tendency to support the union in a representation vote. Second, a hypothesis may predict a relationship between variables, but 2005 CanLIIDocs 206 not its direction (a “nondirectional alternative hypothesis”). An example of such a hypothesis is that there is a difference in the likelihood of a large unit being granted certification, compared to a small unit. Lastly, a hypothesis may predict the direction of the association between variables (a “directional hypothesis”) predicting, for instance, that small units are more likely to unionize than larger units.59 Qualitative research, on the other hand, does not necessarily involve numerical data, and includes a great array of research methods. These include case studies, narrative research, and correspon- dence analysis, which are methods drawn from fields such as sociology and history. These forms of research are potentially of great use to labour law. For example, a case study of union organizing and employer communications, or of second votes, might provide insight into those processes. Questions, rather than hypotheses, tend to be used in this type of research, and they tend to involve a main question and sub-questions, often using nondirectional language and open-ended inquiries.60 An example of a qualitative research question might be: How do employees in a return to work program describe their work re-entry experience?

(b) Application of the Social Science Approach

The basic approach of social science research is to first identify a research problem and a clear purpose for the research. Then, from

58 J.W. Creswell, Research design: qualitative, quantitative, and mixed method approaches, 2d ed. (Thousand Oaks, Calif.: Sage Publications, 2003), at pp. 108-109. 59 Ibid., at pp. 109-110. 60 Ibid., at pp. 105-107. Slinn 11/6/06 1:35 PM Page 371

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 371

these, the researcher distills specific research questions or testable hypotheses. Terms and variables need to be defined, and assumptions identified. Statistical analysis is then used to answer the research question or to determine whether or not there is evidence to support the hypotheses. For example, a research problem that might arise is whether arbitrators’ wage awards comply with statutory criteria for interest arbitration awards.61 The purpose of this research would be to measure the relationship, if any, between such statutory criteria and arbitral wage awards. The research question could be described as: Does 2005 CanLIIDocs 206 statutorily requiring arbitrators to consider the employer’s ability to pay affect arbitrators’ wage awards? This might be translated into the following research hypothesis: There is no statistically significant relationship between the presence of the statutory “ability to pay” requirement and wage awards. The researcher will then test whether or not this hypothesis can be affirmed. In effect, testing this hypothesis tests whether wage awards (the dependent variable) are influenced by the legislation (a key independent variable). Because other factors, such as inflation rates and comparable wage settlements, might also influence awards, the researcher will probably identify and control for these other independent variables to separate their impact from that of the key independent variable: the ability to pay legislation. To test this hypothesis, the researcher will apply statistical tools. Among the more popular tools are various types of multivariate regression analysis, a statistical technique that is well suited to this type of enquiry. The powerful and intriguing capability of this type of analysis is its ability to discern the individual effect of different factors on an outcome to determine which (if any) factor has a statistically significant influence. It does this by calculating a “coefficient” for each independent variable. It allows us to ask a question such as: Holding all else constant, what is the effect of introducing an “ability to pay” criterion (the key independent variable) on the outcome of arbitrated wage awards (the dependent variable)?

61 This example is based on the following study: S. Slinn & H. Calder (2005), When the Government Says Its Cupboard Is Bare: The Effect of “Ability-to-Pay” Legislation on Arbitrated Salary Awards [unpublished manuscript, available from authors]. Slinn 11/6/06 1:35 PM Page 372

372 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

The size of the coefficient reflects whether a one-unit increase in the particular independent variable leads to an increase or decrease in the dependent variable and indicates the magnitude of this influence. A positive coefficient tells us that an increase in the independent variable is associated with an increase in the dependent variable; a negative coefficient means that an increase in the independent variable is linked to a decrease in the dependent variable. A statistically significant result is one that has a high probability of reflecting a true underlying difference and is unlikely to be obtained by chance. In the case of this example, the results of regression analysis 2005 CanLIIDocs 206 showed that the coefficient for the legislation variable was 0.05, thus indicating that the presence of the legislation had a slight negative influence on wage awards. However, the results also showed that the coefficient was not statistically significant. Therefore, our overall conclusion would be that the data supports the hypothesis that there is no statistically significant relationship between the legislation and wage awards. The regression analysis also provided some information about other factors that may influence wage awards. For instance, the coefficient for the public-sector wage comparator was a statistically significant 0.83, indicating that, for every one percent increase in the comparator wages, the average arbitral wage award rose by 0.83%. Therefore, this analysis gave valuable information about the effect (or lack of effect) of a legislative change on an outcome, and provided information about other effects on wage outcomes that might not otherwise have been discovered.

5. LIMITS OF SOCIAL SCIENCE RESEARCH

While social science research is potentially a valuable law-making tool, it has limitations. Some limitations are inherent in the nature of certain questions; others are practical, arising from the analytical tools used or the data that is available.62 Finally other, surmountable, limitations arise from the lack of interaction and communication between the legal and social science communities.

62 Limitations arising from methodology and the design of particular research are also important, but this paper deals more with conceptual limitations. Slinn 11/6/06 1:35 PM Page 373

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 373

(a) Normative Questions in Law

Law is often a normative exercise, and social science evidence removes neither the need, nor the responsibility, for normative decision-making.63 Many decisions on how to draft or apply law require legislators and decision-makers to make normative policy decisions. Empirical evidence may help in making these value judgments, but cannot replace this element of judgment.64 The positive orientation of social science research deals with facts and evidence. As such, social science is not well equipped to deal with normative or value issues: 2005 CanLIIDocs 206 “[Decisions] that a social situation is or was ‘just,’‘right,’‘fair,’ ‘desirable,’ or the opposite . . . cannot be judged and measured by the same objective criteria through comparison with true and fuller knowledge.”65 Because of this, social science research cannot tell us whether something is “bad” or “good.” It can measure and describe its effects, but whether an outcome is desirable or not is a value judgment. Some of these normative assessments will be clear and follow directly from the objective evidence. For instance, if a law encourages unlawful behaviour, then it is a “bad” outcome. Other decisions will be more difficult. Suppose a law makes it less likely that smaller groups of employees will be able to obtain certification. Depending on one’s values, that may be desirable (small employers should be protected from having to deal with a union) or undesirable (small workplaces may be among the most in need of union services, and union organizing should therefore be encouraged). As Townley observes, policy choices “in and of themselves [are] not susceptible to tests of truth or falsehood, proof or disproof.”

(b) Data Limitations

More practically, the potential usefulness of social science research in labour law is constrained by the sharp decline in availability of some important types of data. Fewer and fewer labour

63 Meares, supra, note 26, at p. 853. 64 Townley, supra, note 3, at p. 118. 65 Myrdal, supra, note 6, at p. 16. Slinn 11/6/06 1:35 PM Page 374

374 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

relations boards in Canada are collecting or making case data available to researchers. At one time, several boards, including those in British Columbia and Ontario, collected detailed data on all applications and cases before them, and made it available electronically to researchers. In fact, for a time, British Columbia’s labour legislation included as one of its purposes “gathering and publishing information and statistics respecting collective bargaining in the Province.”66 However, due to reduced resources, these boards have discontinued the practice. This is a tremendous loss to the labour relations community. 2005 CanLIIDocs 206 At the same time, the labour relations information that remains available is not collected with social science researchers in mind, and it is often very difficult or impossible to reorganize it in a form that is useful for research. Both of these factors limit the scope for empirical research in labour law.

One limitation that can be overcome with relative ease is the lack of communication and interchange among social scientists and legal academics and professionals. In social science, researchers often ask questions and measure variables in ways that are not as helpful to the formulation of legal questions as they could be. Thus, much of the existing empirical research measuring factors that may affect the likelihood of certification is at the bargaining unit level. In the case of unfair labour practices, however, the legal question concerns how the employer’s conduct affects the actions of individual employees, not the overall likelihood of certification. What is needed is individual employee-level research to determine the effects of different types of conduct on employees’ willingness to express their views, and on their views. Were there better communication between the legal and social science communities, research could be formulated in a way that is more closely attuned to the particular questions arising in labour law.

66 Industrial Relations Reform Act, S.B.C. 1987, c. 24, s. 27(1)(g). Slinn 11/6/06 1:35 PM Page 375

A ROLE FOR SOCIAL SCIENCE IN LABOUR LAW 375

6. CONCLUSION

The point of this article has not been to despair of the traditional legal approach but, rather, to encourage the legal community to engage with social science and to consider a more interdisciplinary approach to law. This research and the evidence it produces can help us to achieve better, clearer, more effective labour laws, and to reduce reliance on untested assumptions and beliefs. Social science research is a tool that can be useful in formulating, applying and evaluating law, and we have hardly begun to explore its potential. 2005 CanLIIDocs 206 Slinn 11/6/06 1:35 PM Page 376 2005 CanLIIDocs 206 Riddell 11/6/06 1:36 PM Page 377

Using Social Science Research Methods to Evaluate the Efficacy of Union Certification Procedures

Chris Riddell*

In the last two decades, concurrent with a marked decline in private-sector union density in Canada, a number of provinces have amended their labour 2005 CanLIIDocs 206 relations legislation to move away from a union certification procedure based on evidence of union membership in the proposed bargaining unit (a card-check system) to one based on a mandatory election. This paper provides an overview of the use of statistical research in determining whether there is a causal link between the union recognition procedure used in a particular jurisdiction and the level of union organizing activity, as measured by certification success rates. The author reviews the existing studies in this area, with special emphasis on the methodological problems which confront researchers, and possible solutions to those problems. While the studies indicate that the requirement for an election substantially reduces the likelihood of certification, it remains unclear whether this is due to illegal employer behaviour or to the possibility that union support levels under a card-check system are artificially inflated because of “peer pressure” by pro-union employees. In the author’s view, it is too early to draw firm conclusions on this question, and further research is needed before concrete recommendations can be made to policy-makers as to which union recognition procedure is the preferred approach.

1. INTRODUCTION

Unions are declining in importance in Canada, principally in the private sector. Between 1984 and 1998, Canadian union density declined eight percentage points, almost the same as the decline in the U.S. over the same time period (Riddell & Riddell 2004). This decline was largely restricted to the private sector. In response to such striking facts, one naturally asks why? Employer resistance to union organizing is one of the usual suspects. Another, which is the focus of this paper, is the union recognition procedure — that is, the process by which a union becomes certified as the exclusive bargaining agent for a proposed bargaining unit.

* Assistant Professor, School of Policy Studies, Queen’s University. Riddell 11/6/06 1:36 PM Page 378

378 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Historically, Canadian jurisdictions have used the card-check procedure, whereby a union becomes the certified bargaining agent of a proposed unit of employees if a sufficient proportion of those employees sign membership cards. In several provinces, this is no longer the case. Beginning in 1984, there has been dramatic legislative change with respect to union recognition. Prior to 1984, only Nova Scotia used a mandatory election union recognition procedure, under which a union, no matter how many signed membership cards it has obtained, cannot be certified unless it wins a majority in a secret ballot vote. In 1984, British Columbia adopted the same 2005 CanLIIDocs 206 approach, which was maintained until 1992 and reinstated in 2002. Alberta began using compulsory elections in 1988, Newfoundland in 1994, and Ontario in 1995. Manitoba introduced mandatory elections in 1997, but reverted to the card-check procedure in 2000. Many observers doubt that the near-simultaneous decrease in union density and the adoption of mandatory elections is merely a coincidence. This viewpoint can be principally attributed to the long- standing belief that union recognition law in the United States, which involves an election system with long delays between a certification application and an employee vote, is the main reason for the huge decline in American private-sector union density, and the resulting divergence in unionization rates between the United States and Canada (Weiler 1983; Freeman 1988). Given the prevalence of the notion among American writers that compulsory election systems can create an environment susceptible to employer abuse, many Canadian industrial relations scholars question the move of provincial governments toward mandatory elections. For applied (or empirical) social scientists, it is not enough to speculate on the role of labour legislation using anecdotal or limited, qualitative case studies. Instead, the role that union recognition laws play in the union organizing process must be rigorously evaluated using modern statistical techniques and large data sets on certification activity and employer behaviour. The key questions of interest are (a) whether in fact there is a link between the union recognition procedure and union organizing activity; and (b) if mandatory elections do negatively affect union organizing, what is the underlying cause of this effect? This paper surveys the current empirical literature on the role of union recognition laws and their relationship to management opposition Riddell 11/6/06 1:36 PM Page 379

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 379

in Canada, focusing in particular on how social science research methods have been used to provide important insights.

2. IS THERE A LINK BETWEEN UNION RECOGNITION AND UNION ORGANIZING?

While anecdotal evidence may point to a negative causal relationship between Canada’s switch to compulsory elections and union organizing, rigorous statistical methods are needed to confirm that relationship. Before looking at the existing empirical studies, it is 2005 CanLIIDocs 206 worthwhile to summarize the theory behind the expectation that compulsory elections reduce union certification success rates. In general, mandatory election laws are believed to lead to lower certification success rates for two reasons: first, management has more opportunity to oppose the bid if there is a compulsory vote; second, in a card-check system, where there is no compulsory vote, peer pressure by pro-union colleagues and union organizers may artificially inflate the “true” level of support for the union. With respect to management opposition, a change in the union recognition law may lead to a change in the effectiveness and/or the incidence of such opposition.1 A voting regime may increase the effectiveness of employer tactics in two respects. First, employers have more time to influence an organizing drive. In the card-check system, union organizers collect signatures from members of the proposed bargaining unit, and then file an application with the labour relations board. The employer is contacted when the board conducts its investigation of the petition

1 This paper will focus on illegal employer behaviour, but of course the incidence and effectiveness of legal employer tactics — such as challenging the appropriateness of the bargaining unit or advising employees that they will be required to pay union dues — may change with the union recognition regime as well. Legal employer actions are generally much more difficult to observe in the data, and thus most previous research emphasizes illegal actions, which enables unfair labour practice complaints to be used as a proxy. Of course, for some legal types of management opposition — such as challenges to bargaining unit appropriateness or jurisdiction — the opportunity to take action is likely the same in an elections regime as in a card-check regime, and so a change in the result may be less likely. Riddell 11/6/06 1:36 PM Page 380

380 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

requirements.2 Previous studies in British Columbia (Riddell 2004) and Ontario (Thomason 1994) have shown that it is rare for a union in a card-check system to fail in gathering sufficient support3 for certification without a vote — often referred to as automatic certification. Thus, where a card-check system has been in operation, many organizing drives were virtually complete before the employer became aware of them (Riddell 2001). Even if the employer does become aware of the drive before or during the employee card- signing stage, the employer will not have much time to engage in union suppression tactics. Under a compulsory election system, on 2005 CanLIIDocs 206 the other hand, in addition to gathering cards and filing an application, a secret ballot vote is conducted within a prescribed number of days after the organizing campaign becomes known to the employer. This extra step in the certification process, the length of which varies from province to province, gives the employer greater opportunity to take action. Second, management opposition may be more effective in a voting regime because of the secret ballot vote itself. Under a card- check regime, if the employer knows about the certification bid and engages in suppression tactics during card-signing, union organizers and pro-union colleagues can attempt to counteract the coercion. For instance, in cases where the employer has threatened plant closure if certification is successful — a relatively common tactic (see Martinello & Yates 2005) — union organizers can try to convince employees that this is an empty threat and will likely not occur, and can remind employees of the legal recourse that is available if the employer does carry out the threat. In a secret ballot vote, however, the employee is left on his or her own to weigh the credibility of employer threats. Elections may also increase the incidence of management opposition. If the effectiveness of management opposition is greater in a voting regime — and if employers know this — then a cost-

2 Petition requirements include sufficient card-check support (e.g., in B.C. the union needs 45% support in the proposed bargaining unit in order for the vote to proceed), bargaining unit appropriateness, trade union status, and jurisdictional competence (e.g., the proposed unit does not fall under another province’s jurisdiction or federal jurisdiction). 3 This rate is often 55%, but varies from province to province. Riddell 11/6/06 1:36 PM Page 381

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 381

benefit calculation implies that employers will adopt such tactics more frequently, given that the chances of defeating the bid are greater and the costs remain the same. As well, those employers who in a card-check system would not have realized that organizing activity was occurring until after the cards had been collected would, in a voting system, be assured of having an opportunity to oppose the union. I now turn to one of the central questions addressed in this paper: what have we learned from empirical studies about the link between union recognition laws and union organizing? This section 2005 CanLIIDocs 206 of the paper addresses how researchers have tried to identify the effect of election laws on union organizing activity. My focus is on the use of applied social science methodologies, which approach this question in the following way: first, measuring union organizing activity by gathering relevant data — for instance, on the union certification success rate; second, statistically testing for a relationship between a change in a province’s union recognition law and the measure of union activity.4 The third section of the paper will examine why compulsory elections may reduce union activity. Most previous empirical studies have focused on a single province. This involves an important methodological tradeoff. Those who want to expand the scope of their research are necessarily forced to use certification data from the annual reports of various labour relations boards. Such an approach, however, leaves the researcher unable to address a number of key data issues, and greatly limits the

4 The other main approach is to use household survey data. See e.g. F. Martinello & R. Meng, “Effects of Labor Legislation and Industry Characteristics on Union Coverage” (1992), 46 Indus. & Lab. Rel. Rev. 176. The authors use Statistics Canada’s 1986 Labour Market Activity Survey to estimate the effect of resi- dence in a province with compulsory election laws on the likelihood of being unionized. In terms of the data source, this is a very different approach from the studies discussed in this paper, but the key methodological issues are the same. For instance, because the authors may only have data from a single year, the effects of compulsory election laws will be driven solely by differences across provinces at a single point in time. The approach is problematic because there could be a wide variety of unobserved factors that explain unionization differences across provinces. One could improve upon this strategy by using longitu- dinal household data, where identification would be driven by changes in the union recognition law over time. Riddell 11/6/06 1:36 PM Page 382

382 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

researcher’s ability to hold constant other external factors, such as union characteristics and industry factors, which could contaminate the results. For instance, very few provinces collect certification data on an industry-specific basis, and none have done so on a consistent basis over a sufficiently long period to be useful in this context. Thus, data from the labour relations boards typically combine the public and private sectors. I have concluded elsewhere that union recognition laws have either a minor or no effect on certification success in the public sector (Riddell 2004). Thus, using data from annual board reports will lead to estimates that understate the effect of compulsory 2005 CanLIIDocs 206 election laws for unions operating in the private sector. Some certification applications are inappropriate to include in a sample when analyzing the effect of union recognition laws on certification success rates, and such cases can only be excluded by using micro-data — that is, data on individual certification applications.5 Furthermore, legislative changes are often made midway through the year, with the result that annual data will understate their effect.6 As will be discussed further below, using data compiled from annual reports is particularly problematic if researchers wish to examine the link between unfair labour practices and certification success rates. By focusing on a single province, the researcher has an opportunity to collect data on individual certification attempts, allowing (for example) for separate analysis of the private and public sectors. However, collecting such information is an enormous and costly task. One of the first studies to examine the link between changes in labour legislation, including the union recognition procedure, and union organizing activity was conducted by Felice Martinello (Martinello 2000), who uses monthly data (i.e., not micro-data) from the Ontario Labour Relations Board. The author examines a number of measures of union activity, including certification success, number of attempts, and decertifications over the 1987 to 1998 period, during

5 This includes challenges based on petition requirements and raids. For example, it would be misleading to count as failed applications those that are rejected because the bargaining unit is deemed inappropriate, or because the applicant union is deemed not to be a trade union. In those cases, the union has not actually lost. 6 Using monthly data can alleviate this problem, if the labour relations board will provide such data. Riddell 11/6/06 1:36 PM Page 383

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 383

which the Progressive Conservative (PC) government introduced mandatory elections in November 1995 as part of Bill 7. He concludes that the PC legislation reduced certification attempts by 15%, and certification success rates by about 8%. The Martinello study provides very useful results on the effects of Bill 7, but there are some important caveats. In particular, the study illustrates two key, and related, methodological problems that confront researchers in this literature: (a) the inability to control for other factors that could also influence union organizing activity; and (b) the inability to isolate the effect of compulsory elections from other important changes 2005 CanLIIDocs 206 made at the same time. The first problem is our inability to exclude the possibility that some other, unobserved factor is playing a role. In other words, since we cannot observe what would have happened if Bill 7 had not been implemented, we cannot confirm that there was a causal connection between Bill 7 and union organizing activity. This dilemma is often referred to as the “counterfactual problem” in empirical research. Several examples discussed below will illustrate this point. The second problem is that even if we could confirm that the change in legislation caused the decline in union activity, we could not confirm that the decline was due to the union recognition procedure alone. This is because most changes to provincial labour codes involve sweeping changes to many rules and procedures that might affect the benefits and costs of being unionized, and might therefore affect union organizing activity. This encompasses such things as changes to strike rules, including rules on replacement workers, on last (final) offers, on decertification, on first contract arbitration, on other aspects of collective bargaining dispute resolution, and on the designation of essential services. In short, even if we believe that Martinello’s estimated eight percentage point decline in certification success rates is due to Bill 7, and not to some unobserved factor, we cannot determine how much of this effect is due to compulsory elections as opposed to other Bill 7 changes. Two studies that use micro-data to examine the role of union recognition and union organizing success focus on Ontario (Slinn 2003) and British Columbia (Riddell 2004). In the latter, I provide an illustration of the counterfactual problem noted above, and of how the union recognition procedure can be isolated from other changes to the British Columbia Labour Relations Code. In that province, Riddell 11/6/06 1:36 PM Page 384

384 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

compulsory elections replaced a card-check system in 1984, but the latter was reinstated in 1993. An earlier study of mine (Riddell 2001) exploits this sequence. That study uses a research methodology known as a “natural experiment” or “quasi-experiment,” which can help alleviate concerns arising from the counterfactual problem. In my 2004 study, I examine the 1978 to 1998 period. However, in 2002, after I wrote that paper, B.C. switched back to compulsory elections. Figure 1 shows certification success rates for B.C. over the 1978 to 2004 period.7 While there are dramatic differences between 2005 CanLIIDocs 206 the private and public sectors, Figure 1 shows success rates for all certification applications, as it is impossible to classify those applications by industry using annual data from the British Columbia Labour Relations Board.8 Until 1984, success rates were in the high 80% to low 90% range. The 1984 cell is misleading because the 1984 Labour Relations Act, which provided for compulsory elections, was introduced in the middle of the year.9 In 1985 and 1986, success rates were around 70%, and remained at this level throughout the life of

7 Figure 1 excludes withdrawn certification applications from the calculation of the success rate — that is, the success rate is simply calculated as success = number of certifications granted/(number of certifications granted + number of certifications rejected). To a large extent, including withdrawn applications as unsuccessful cases simply shifts the series in Figure 1 downwards in a parallel manner. Conceptually, it is unclear how withdrawn cases should be treated, as there are several good reasons not to treat them as unsuccessful (see Riddell 2004 for a discussion). Perhaps the most important reason is that unions often reapply for certification shortly after withdrawing an application, which would lead to double-counting of cases if the withdrawn certifications were included. Slinn 2003 uses micro-data and a multinomial logit model to analyze certification outcomes, which allows the three main outcomes (granted, withdrawn, rejected) to be treated as separate. 8 British Columbia is one of the few provinces (along with Ontario) to provide information on certifications by industry, but it has not done so consistently over the time period examined in Figure 1. In my paper (Riddell 2004), I use micro- data from 1978 to 1998 to show that the 1984-1992 compulsory election regime had no discernible effect in the public sector, but unfortunately I do not have access to micro-data from the British Columbia Labour Relations Board for the years after 1998. 9 This is another example of the importance of having micro-data. Riddell 2004 shows that the January-May 1984 success rate for private-sector certifications was 92%, while the June-December success rate was 71%. Riddell 11/6/06 1:36 PM Page 385

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 385

2005

2004

2003

2002

2001

2000

1999

2005 CanLIIDocs 206

1998

1997

1996

1995

1994

1993

1992 1991

FIGURE 1

1990

1989

1988

1987

1986

1985 1984

Certification Success Rates for British Columbia, Success Rates for Certification 1978 to 2004

1983

1982

1981

1980

1979 1978 1.00 0.90 0.80 0.70 0.60 0.50 0.40 0.30 Riddell 11/6/06 1:36 PM Page 386

386 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

the 1987 Industrial Relations Act.10 In 1993, following the elimination of compulsory elections, success rates went back up to the 90% level and remained very constant until 2002. Again, following the reintroduction of compulsory elections at the beginning of 2002, those rates fell back to the 70% level. Based on Figure 1 alone, it would appear that the 1984-1992 legislative packages and the 2002 legislative package reduced success rates by around 20 percentage points. It is possible that other factors relating to union organizing changed over this period as well. For instance, the distribution of certification attempts by industry 2005 CanLIIDocs 206 may have shifted, moving away from the manufacturing and primary sectors, and toward the service sector. Such structural changes in the economy could affect union organizing success. As well, there was a substantial amount of merger activity among Canadian unions, which could also influence union organizing. However, regression techniques can be used to control for these factors, and others. To illustrate how a natural experiment can be quite powerful, reconsider Figure 1, but imagine that we observed the B.C. success rate only until 1992. In that event, we would detect a strong link, or correlation, between elections and success rates, which would be based on one change in the union recognition regime. This is the situation facing researchers who wish to study Ontario, Alberta, Nova Scotia and Newfoundland. Based on information to 1992, however, it would be difficult to conclude that the legislation caused the decline in success rates, simply because we cannot observe what would have happened if the legislation had not been passed — i.e., the missing counterfactual. When the B.C. union recognition procedure changed again in 1993, and went back to the identical system used prior to 1984, we were largely able to fill in the missing counterfactual. Once a second mandatory election regime was implemented in B.C., and an identical result was achieved in certification success rates, the causality became even more convincing. There is an additional advantage to studying the B.C. experience. In particular, in contrast to every other compulsory election regime that has been implemented in Canada, only two other major

10 The 1988 cell is an anomaly; in this year, teachers were given the right to unionize and launched 75 certification applications, all of which were successful. Riddell 2004 shows that the private-sector certification success rate in 1988 was roughly the same as in the other years of the 1984-1992 election regime. Riddell 11/6/06 1:36 PM Page 387

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 387

amendments were made to B.C. labour relations legislation by the 1984 Labour Relations Act: a change to picketing rules, specifically restrictions on picketing of related employers, and a change to decertification rules, specifically the introduction of elections in decertification cases. The picketing changes were relatively minor; it is difficult to imagine that they could have influenced union organizing activity, and particularly the success rates of such activity. Similarly, although unions were not pleased with the introduction of decertification elections, it is hard to imagine that such a change would affect the success rate of certification applications (although it may have an 2005 CanLIIDocs 206 effect on the number of certification attempts). Thus, unlike fundamental changes to the collective bargaining process, such as first contract arbitration, limits on replacement workers and last offer voting rules, the changes made by the 1984 Labour Relations Act were basi- cally restricted to the union recognition procedure. Sweeping changes to the Labour Code were subsequently introduced in the 1987 Industrial Relations Act. The experience of the 1985-1986 period, therefore, gives a better indication of the effect of compulsory elections alone. Moreover, when the New Democratic Party (NDP) government eliminated compulsory elections at the beginning of 1993, they kept virtually all of the other amendments made in 1984 and 1987. In essence, this allows one to “net out” the effects of the other important changes made in the 1984 and 1987 legislative amendments. I have found that compulsory elections can account for virtually all of the decline in certification success rates that occurred over the 1984 to 1992 period. However, mandatory voting has no discernible effect in the public sector.11 The only study to use data on certifications across Canada was conducted by Susan Johnson (Johnson 2002), who found that over the 1980 to 1996 period, compulsory election laws reduced certification success rates by nine percentage points. This study used aggregated data from the annual reports of the provincial labour relations boards. Thus, it had to treat the private and public sectors equivalently, it could not control for as many external factors, and it could not make some of the sample adjustments discussed above. On

11 Interestingly, this is consistent with management opposition being an underlying factor behind the effect of elections on success rates. We do not expect much management opposition in the public sector, due to concerns over public image and the (relative) lack of profit maximization motives. Riddell 11/6/06 1:36 PM Page 388

388 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

the other hand, a clear advantage of having data from across Canada is that the results are more representative — i.e., my earlier findings could be idiosyncratic to British Columbia. The key advantage of Johnson’s approach, however, is that the researcher can rely on variation in legislative changes across provinces as well as variation in legislative changes for a particular province over time. Given that different provincial reform efforts include different bundles of legislative changes, a study has a better chance of being able to distinguish the effect of mandatory elections from other potentially important changes if it combines all provinces and, preferably, all legislative 2005 CanLIIDocs 206 changes over time in a given province. In summary, there is compelling evidence that compulsory election laws substantially reduce union certification success rates. On the other hand, the available literature is very limited, despite the considerable attention that union recognition has received from the media, policy-makers and academics in Canada, the United Kingdom, and in particular the United States. Moreover, the focus has been on union certification success rates, leaving a dearth of research into other areas, such as certification attempts, decertifications, and success in concluding a first contract. These areas may be more important to union density than compulsory elections are.12 Three key methodological themes are found throughout this literature. First, the use of micro-data (i.e., data at the individual certification application level) is important, as it allows the researcher to include more controls in a regression framework for external factors such as industry and union characteristics, to adjust for legislative changes made in the middle of a calendar year, and to make appropriate sample adjustments. Second, since researchers typically examine only a single change in the law, it is often difficult to conclude that there is a direct causal connection between this change and union organizing outcomes. Those outcomes may have been affected by some other, unobserved factor. Third, even when the missing counterfactual can be approximated, it is still not a straightforward task to isolate the effect of the union recognition procedures from other aspects of the labour laws, since most legislative reforms involve multiple changes.

12 My newer research, however, provides cross-Canada evidence on these three union activity measures (Riddell 2005). Riddell 11/6/06 1:36 PM Page 389

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 389

Although there has been relatively little research in the area of union recognition procedures, rigorous social science research methods have allowed scholars to address many of these issues. It is becoming clear that compulsory election regimes reduce certification success rates, although it is still uncertain what impact election laws have had on union density. In the next section, I turn to perhaps the most important question: why do mandatory elections reduce union organizing activity?

3. DOES EMPLOYER BEHAVIOUR EXPLAIN THE 2005 CanLIIDocs 206 NEGATIVE RELATIONSHIP BETWEEN COMPULSORY ELECTIONS AND UNION ORGANIZING?

Although more research into this question is required, previous work has generated convincing evidence that compulsory elections reduce union organizing success. Several questions immediately arise from a policy standpoint: How do we deal with this empirical finding? Has the trend toward elections been a mistake? What is the “optimal” policy? In order to think about these types of questions in a meaningful way, we must first determine the underlying reason for the negative relationship between compulsory election laws and union certification success. The reader will recall that there are two main reasons why compulsory elections are believed to reduce union organizing success. First, compulsory elections may create an environment conducive to union suppression by employers. This may be due to the fact that such elections give the employer more time to influence the outcome of the bid, or that the secret-ballot voting process makes management opposition more effective. Second, the card-check system may create an environment conducive to “peer pressure” by pro-union workers, thus artificially inflating union support levels.13 In making policy recommendations to governments, it is clearly of paramount importance

13 I use the term “peer pressure” because there is very little evidence — based on unfair labour practices filed during union organizing drives — of coercion by unions, whereas there is considerable evidence (indeed, a wealth of evidence if one includes the U.S. literature) on illegal and marginally legal activity by employers during certification bids. Riddell 11/6/06 1:36 PM Page 390

390 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

to identify why compulsory elections reduce the likelihood of union certification. Unfortunately, addressing this question is very difficult. Only one Canadian empirical study, which I recently conducted, exists in this area (Riddell 2004). This study uses data on unfair labour practice complaints filed during organizing drives to compare the effects of management behaviour under compulsory elections laws with its effects under card-check laws over the 1987 to 1998 period in British Columbia. This time period covers one compulsory election regime (1987 to 1992) and one card-check regime (1993 to 1998). If a 2005 CanLIIDocs 206 researcher wishes to examine the link between unfair labour practices (“ULPs”) and union organizing outcomes, such as success rates, it becomes critical to have micro-data. There are a number of serious problems in using aggregated data on ULPs from the annual reports of the labour relations boards. For instance, the annual reports of the British Columbia Labour Relations Board appear to show a dramatic increase in the number of ULP charges, especially since 1993. However, a closer look at the data reveals that unions have simply filed more applications per certification attempt, including applications under different subsections of the legislation which did not previously exist.14 In general, the most serious issue with data on ULPs gathered by Canadian labour relations boards is that ULP charges made against the employer during an organizing drive are not sepa- rated from other ULP complaints, such as those involving an alleged failure to bargain in good faith. Because they are based on administrative records, data on unfair labour practices have the advantage of providing a clear measure of union suppression tactics that are available over time. If alternative proxies for management behaviour were to be used, a survey would have to be done during organizing drives, in which case the researcher would lose the ability to examine union certification outcomes over time. However, there are disadvantages to using ULPs as well. In particular, ULPs typically capture only illegal employer

14 That is, some of the increase in ULPs in B.C. is purely artificial, due to the enactment of new subsections whose subject matter was already covered under previous legislation. Moreover, in 1989, the B.C. Labour Relations Board changed its system of counting ULPs. Riddell 11/6/06 1:36 PM Page 391

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 391

behaviour.15 Martinello and Yates’ survey of organizing drives in Ontario found that ULPs tend to be filed only in cases where an employer “goes all out” and uses a variety of tactics, both illegal and legal (though often marginally legal) (Martinello & Yates 2005). I have found that ULPs are twice as effective in countering a union organizing drive under compulsory elections laws than under card-check laws. In particular, each ULP on average reduces success rates by six percentage points in a card-check system and 12 percentage points in an election system. On the other hand, I have found no change in the incidence of ULPs across the two legislative regimes.16 2005 CanLIIDocs 206 Nevertheless, these findings are of serious concern, because they cast some doubt on the elections process as a fair mechanism for determining the level of support in a proposed bargaining unit. Of particular concern with regard to my findings is the fact that management opposition was more effective under the compulsory election regime in B.C., despite the fact that the legislation required

15 Another possible disadvantage of relying on ULPs is that because they are filed by the union (or by employees in the proposed bargaining unit), they may reflect a strategy on the part of the union rather than employer misconduct. However, this appears not to be the case, as it is rare for a ULP application to be rejected by the Board. Most cases are either settled or are found to be meritorious. See Riddell 2001. 16 It is unclear how meaningful this result is; in particular, there is reason to expect that the incidence of management opposition will be similar across union recognition regimes if the inherent level of support during attempted organizing drives is higher in a voting regime. Specifically, given that successfully certifying a unit is more uncertain under elections, we may expect two different responses from unions when a voting regime is introduced. One possibility is that unions make more attempts in order to counteract the likelihood of lower success rates. A second possibility is that unions make fewer attempts, and focus only on those campaigns where they believe success is very likely, i.e. those units in which the inherent level of support is higher. As shown in Riddell 2004, the number of certification attempts fell by 50% during the election era of 1984 to 1992, which may indicate that unions focused their organizing efforts on units with a high inherent level of support. If unions are more selective in a voting regime, then we may expect fewer ULPs than under a card system, because employers recognize the greater inherent level of support and decide that an anti-union campaign is not worthwhile. Thus, while there are reasons to anticipate a higher incidence of ULPs in a voting regime — due to more time being available and the greater effectiveness of such tactics — there is also reason to expect fewer ULPs under a vote system. Riddell 11/6/06 1:36 PM Page 392

392 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

“quick votes”—i.e., the election had to take place within a very short period after the application. From 1984 to 1992, that period was ten days in B.C.; in Ontario, it is five days. In a seminal article, Paul Weiler argued for quick vote procedures as a compromise between card-check and compulsory vote procedures (Weiler 1983). His premise was that employer resistance was particularly effective under compulsory voting because the employer had more time to launch an anti-union campaign, and that this was magnified in the United States by the extreme length of the certification process (Weiler 1983; Thomason 1994). Quick-vote laws, he argued, could 2005 CanLIIDocs 206 provide a democratic process for assessing the wishes of employees in the proposed bargaining unit while restricting the ability of employers to pursue union suppression tactics. Indeed, a key difference between Canada and the U.S. is that all provinces which use (or have used) compulsory elections also require quick votes. My previous findings call into question the effectiveness of quick-vote laws in limiting illegal employer behaviour (Riddell 2004). Mike Campolieti, Sara Slinn and I (Campolieti, Riddell & Slinn 2005) examined compliance with quick-vote laws by the labour relations boards in British Columbia and Ontario, and the effects of illegal employer behaviour (as measured by ULPs) on the likelihood of non-compliance. We found that compliance in British Columbia was extremely high, at 95%.17 Clearly, with such high compliance rates it is very unlikely that the results of my previous research (Riddell 2004) were driven by non-compliance with the accelerated election procedures. It would therefore appear that even a ten-day quick-vote procedure leaves enough time for employers to launch an effective anti-union campaign. The available evidence casts doubt on whether compulsory elections ensure a fair process for unions and prospective union members. Unfortunately, to the best of my knowledge, there has only been one empirical study on the interaction between employer behaviour and the union recognition procedure, so it is too early to draw definitive conclusions. Moreover, a vital link is still missing: information on the role of peer pressure during certification bids, and on

17 However, in Ontario, non-compliance was much higher (16%), and nearly all of it consisted of delays in excess of 20 days. Moreover, ULPs increased the probability of non-compliance by 11%. Riddell 11/6/06 1:36 PM Page 393

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 393

the possibility that a card-check system inflates the level of union support. There is no research, empirical or otherwise, on this crucial issue. Even if the results of my previous research (as well as that of Campolieti, Slinn and me) hold in other provinces, and using other methodologies and data sources, it may still be possible that compulsory elections are the “lesser of two evils.” The research methodologies used in the literature just discussed are not well suited to studying the effect of union pressure or peer pressure by pro-union colleagues. One possibility would be to survey individuals involved in union organizing drives, as Felice Martinello 2005 CanLIIDocs 206 and Charlotte Yates have done (Martinello & Yates 2005). However, this will only be indicative of union behaviour in the context of a given union recognition procedure. If one could predict when a government was going to change that procedure, one could survey units under both the old and new procedures.18 In any event, whatever methodology is employed, more research is required on the role of union pressure during card-check regimes before concrete recommendations can confidently be made to policy-makers.

4. CONCLUSION

In the search for the causes of Canada’s decline in union density, statutory recognition procedures are a key suspect. From a research standpoint, a social scientist would hypothesize that the introduction of a compulsory election system will reduce the level of union organizing activity. In order to test this hypothesis, researchers have examined the impact of changes in provincial labour codes on various measures of union organizing activity, focusing in particular on certification success rates. One study has examined organizing success across different provinces and periods, using aggregate data from the provincial labour relations boards (Johnson 2002). Other studies have focused on a single province over time using micro-data on individual certification applications (Slinn 2003; Riddell 2004).

18 Unfortunately, the problem here is that the units surveyed would of necessity be different. In particular, because of the change in union recognition procedures, the level of inherent support for the union would likely be different, and thus it would be difficult to argue that unobserved factors are not contaminating the results. Riddell 11/6/06 1:36 PM Page 394

394 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Overall, while the literature is quite limited, its findings offer convincing evidence that compulsory election laws reduce union certification success rates by a substantial amount. This is a telling result, as many provinces, including three of the largest (Ontario, British Columbia and Alberta), have introduced compulsory election procedures in recent years. Perhaps the most important question, especially for policy- makers, is why mandatory elections are associated with lower success rates. If the principal reason is employer abuse — that elections do, in fact, give employers time to suppress the union’s bid, or create 2005 CanLIIDocs 206 an environment conducive to suppression — then policy-makers may wish to reconsider the move toward mandatory elections. On the other hand, if the principal reason is that card-check systems artificially inflate union support, perhaps because of pressure tactics by the union, then elections may be the preferred policy. Unfortunately, very little research has been done on this issue. Elsewhere, I provide evidence that union suppression tactics, as measured by the incidence of unfair labour practices, are twice as effective under election laws as under card-check laws, which suggests that elections create an environment more conducive to anti-union tactics. This evidence is largely based on the incidence of illegal employer behaviour, which a provincial government would want to dissuade. Moreover, at least one study has found that illegal employer stratagems increase the probability of non-compliance with quick-vote time limits, and lead to much longer processing times for certification applications (Campolieti, Riddell & Slinn 2005). Overall, therefore, the literature suggests that employer behaviour underlies the negative effects of voting laws on union certification, but it is far too soon to draw firm conclusions. There has been no research on the possibility that card-check laws may artificially inflate union support levels. On this issue, the traditional social science research methodologies face some important constraints, particularly the fact that it is very difficult to observe union behaviour during organizing drives. Without some credible measure of “true” union support, researchers will have a difficult time testing whether card-check systems overstate the level of union support. Researchers must move away from the traditional methodology of using administrative data from labour relations boards, and must find alternative Riddell 11/6/06 1:36 PM Page 395

SOCIAL SCIENCE AND UNION CERTIFICATION PROCEDURES 395

means for examining the link between union support and union behaviour during organizing drives. Only then could concrete and credible recommendations be made to policy-makers on which union recognition procedure is the preferred approach.

REFERENCES

Campolieti, M., C. Riddell & S. Slinn. 2005. “Certification Delay under Elections and Card-Check Procedures: Empirical Evidence from Canada, 1987-1998.” School of Policy Studies 2005 CanLIIDocs 206 Working Paper, Queen’s University. Freeman, R. 1988. “Contraction and Expansion: The Divergence of Private Sector and Public Sector Unionism in the United States.” Journal of Economic Perspectives, vol. 2, no. 2, pp. 63-88. Johnson, S. 2002. “Voting or Card-Check: How the Union Recognition Procedure Affects Organizing Success.” Economic Journal, vol. 112, no. 479, pp. 344-361. Martinello, F. 2000. “Mr. Harris, Mr. Rae and Union Activity in Ontario.” Canadian Public Policy, vol. 26, no. 1, pp. 17-34. Martinello, F. & R. Meng. 1992. “Effects of Labor Legislation and Industry Characteristics on Union Coverage.” Industrial and Labor Relations Review, vol. 46, no. 1, pp. 176-190. Martinello, F. & C. Yates. 2005. “Union and Employer Tactics in Ontario Certification Applications.” Forthcoming in Advances in Industrial and Labor Relations. Riddell, C. 2001. “Union Suppression and Certification Success.” Canadian Journal of Economics, vol. 34, no. 2, pp. 396-410. Riddell, C. 2004. “Union Certification Success Under Voting Versus Card-Check Procedures: Evidence from British Columbia, 1978-1998.” Industrial and Labor Relations Review, vol. 57, no. 4, pp. 493-517. Riddell, C. 2005. “The Larger Role of Union Recognition Laws: Evidence on Certification Activity, Decertifications, First Contract Success, and Strike Voting Outcomes.” School of Policy Studies Working Paper, Queen’s University. Riddell, C. & W.C. Riddell. 2004. “Changing Patterns of Unionization: The North American Experience.” In T.A. Kochan & A. Verma, eds., Unions in the 21st Century: An Riddell 11/6/06 1:36 PM Page 396

396 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

International Perspective. London: Palgrave Macmillan, pp. 146-164. Slinn, S. 2003. “The Effect of Compulsory Certification Votes on Certification Applications in Ontario: An Empirical Analysis.” Canadian Labour and Employment Law Journal, vol. 10, no. 3, pp. 399-429. Thomason, T. 1994. “The Effect of Accelerated Certification Procedures on Union Organizing Success in Ontario.” Industrial and Labor Relations Review, vol. 47, no. 2, pp. 207- 225. 2005 CanLIIDocs 206 Weiler, P. 1983. “Promises To Keep: Securing Workers’ Rights to Self-Organization Under the NLRA.” Harvard Law Review, vol. 96, pp. 1769-1827. Bernier 11/6/06 1:36 PM Page 397

Improving Legislative Protection for Non-Standard Workers: Recommendations Based on the Experience in Québec

Jean Bernier*

This paper considers the consequences of the rapid growth of non-standard employment in Canada, with particular emphasis on Québec. The author 2005 CanLIIDocs 206 points out that, because labour legislation has historically been designed to protect employees in traditional employment relationships, non-standard workers are either excluded from such legislation or are subject to disparity of treatment based on their employment status. In his view, extensive legislative reform is required to enhance the level of social protection afforded to non-standard workers, and in the second part of the paper he offers an overview of a report on this issue that he recently co-authored at the request of the Québec Department of Labour. The report’s recommendations are aimed at providing greater access to labour legislation, eliminating disparate treatment based on employment status, and providing social protection to workers employed through temporary agencies and to the self-employed. Noting that the steps taken by countries of the European Union can be an important source of guidance, the author urges that the federal and provincial governments in Canada take prompt, coordinated action.

1. INTRODUCTION

The traditional concept of a salaried worker is that of a person who works for a single employer within a subordinate employment relationship, at the employer’s premises, for an indeterminate duration. Since there is no legal definition of non-standard work, for the purposes of this paper I will consider as non-standard any status which deviates from that traditional concept. This approach to non- standard work covers a wide variety of work or employment situations that have proliferated over the years: part-time employment, term employment, temporary employment, casual employment, on- call employment (sometimes accompanied by penalties for non- performance), home work, telework, multiple employment, work

*Département des relations industrielles, Université Laval. Bernier 11/6/06 1:36 PM Page 398

398 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

obtained through temporary employment agencies, and self- employment or independent work. The comments and recommendations presented in this paper are largely inspired by a report entitled Social Protection Needs of Workers in Non-Traditional Work Situations, which I co-authored in 2003 with Guylaine Vallée and Carol Jobin, and which was published by the Québec Ministry of Labour.1 That report dealt with non-standard workers as part of a larger labour market phenomenon characterized by the emergence of a class which we called “vulnerable workers,” a broad grouping that includes all of the working poor, 2005 CanLIIDocs 206 even those who have permanent full-time jobs. We described the causes of the expansion of non-standard work in the Québec labour force in the following terms: This phenomenon is the result of a combination of factors such as new technologies, increased global competition, the perceived need of businesses to be more flexible (particularly in terms of human resources), and new forms of organizing work. These types of employment may also have developed in response to the needs of some workers to reconcile their job- and family- related responsibilities, and the desire of others to enjoy greater independence in the exercise of their professional activities.2

2. SIGNIFICANCE OF THE PHENOMENON

The labour market has been faced with very important structural changes over the past three decades. Although the concept of non-standard work is not new and covers forms of employment that have existed for a long time, this type of work has grown

1 J. Bernier et al., Les besoins de protection sociale des personnes en situation de travail non traditionnelle (Social Protection Needs of Workers in Non- Traditional Work Situations) (Québec: Ministère du travail, 2003). Guylaine Vallée is with the École de relations industrielles, Université de Montréal, and Carol Jobin is with the Département des sciences juridiques, Université du Québec à Montréal. The entire report is available online in French at http://www.travail.gouv.qc.ca/actualite/travail_non_traditionnel/Bernier2003/ RapportFinal.html. Several chapters of the report, including the recommendations (chapter 7), are available on the same website in English. 2 J. Bernier, G. Vallée & C. Jobin, Social Protection Needs of Workers in Non- Traditional Work Situations: Synopsis of Final Report (Québec: Ministère du travail, 2003), at p. 4. Bernier 11/6/06 1:36 PM Page 399

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 399

considerably since the mid 1970s. For instance, in Québec, according to Statistics Canada’s Labour Force Survey,3 the proportion of non-standard workers has more than doubled in a quarter of a century. It increased from 16.7% of total employment in 1976 to 29.3% in 1995, and between 1997 and 2001 it fluctuated between 37.1% and 36.4%. TABLE 1 Non-Standard Work Trends in Québec 2005 CanLIIDocs 206 1976 16.7% 1995 29.3% 2001 36.4% 2001 31.2% (excluding students) 2002 31.6% (excluding students)

Source: Labour Force Survey

If we extend the analysis to Canada as a whole, using more or less the same categories, figures from 2004 show that the proportion is similar. TABLE 2 Non-Standard Work in Canada — 2004

Number of workers: 15,949,700 = 100% Temporary Ð full-time 6.45% Part-time Ð temporary 4.35% Part-time Ð permanent 10.97% Self-employed (without employees) 9.95% Total non-standard workers 31.72%

Source: Labour Force Survey

Non-standard workers are found in all age groups, and in each category the percentage of women is significantly higher than the percentage of men.

3 Bernier et al., supra, note 1, at pp. 60 and 61. Bernier 11/6/06 1:36 PM Page 400

400 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

FIGURE 1 Non-Standard Work in Québec in Percentage of Employment by Age Group and Gender — 2002

45% Men Women 40.2% 40%

34.9% 34.4% 34.8% 35%

30%

26.3% 2005 CanLIIDocs 206 24.5% 25%

20%

15%

10%

0% 20Ð34 years 35Ð49 years 50Ð64 years

Source: Labour Force Survey

FIGURE 2 Non-Standard Work in Québec by Age Group and Gender — 1999

60% Men Women Total 53.0% 50% 46.5% 40.8% 40% 35.9% 32.8% 33.1% 30%

20%

10%

0% 15Ð29 years 30 years + Source: Labour Force Survey Bernier 11/6/06 1:36 PM Page 401

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 401

This pattern is not unique to Québec but can be found in all industri- alized countries.4 It is an important phenomenon, given the large number and various categories of people affected, and the consequences — both positive and negative — that it can entail.

3. CONSEQUENCES OF THE GROWTH OF NON-STANDARD EMPLOYMENT

The problem is that labour legislation, and social law in general, has not been adapted to keep up with this trend. Labour legislation 2005 CanLIIDocs 206 has historically been designed to provide legal protection for employees in traditional employment relationships, and it has not been updated in recent decades to take into account new forms of employment or work organization. The result is a serious lack of social protection for non-standard workers, because they are either excluded from the legislation altogether or are subject to disparity of treatment based on their employment status. The term “social protection” must be understood in a very broad sense. It extends from the right to min- imal decent working conditions to the right to collective representation, and it includes occupational health and safety, workers’ compensation for work-related accidents or diseases, access to quality employment, and group insurance and retirement plans. As our Committee said in its report: While these new forms of employment provide some undeniable advantages for businesses in terms of greater flexibility in the use and management of the workforce, and in some cases for workers by facilitating work/life balance or allowing greater independence in determining how and when work is done, they give rise to certain undesirable social outcomes. No matter which indus- trialized country is considered, the problems raised are similar: the labour legislation was designed for the traditional type of labour relations. It is often difficult to characterize these new work relationships from a legal point of view and to determine whether those holding non-standard jobs will or will not have access to the protection systems thus defined. The proliferation in non-standard jobs also seems to result in disparities in treatment — sometimes large ones — between people performing similar duties within the same organization. The use of these new forms of employment means more than just flexibility or diversity; it also means insecurity of working and living conditions for many workers and perhaps their exclusion from coverage by labour law.5

4 Ibid., at p. 390. 5 Ibid., at p. 6. Bernier 11/6/06 1:36 PM Page 402

402 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

(a) Eligibility for Social Protection

Although the situation may vary from one province or state to another, a review of relevant labour laws in Québec, as well as elsewhere in Canada and the United States, shows that the status of “employee,” in the traditional sense of the word,6 has historically been the key to accessing social protection.7 This observation should be expanded in three respects. First, any status other than that of “employee” will result either in exclusion from social protection or in only limited access to such 2005 CanLIIDocs 206 protection. For instance, self-employed workers have no access to employment insurance, labour standards, or occupational health and safety protection, and cannot acquire collective representation or collective bargaining rights. Also, in Québec, they have no access to the provincial commission that administers the Industrial Accidents and Occupational Diseases Program.8 With respect to public pension plans administered by the Canadian and Québec governments, the self-employed are covered but are required to pay both their share and the employer’s share. Second, a majority of the employment statutes in Canada and the U.S. define “employee” more broadly than it is defined in Québec. All of the statutes explicitly or implicitly exclude “independent contractors”9 but include what are generally called “dependent contractors”: that is, nominally self-employed persons who are, in reality, in a situation of economic dependency upon an employer or a client. In Québec, by contrast, dependent contractors are excluded. Furthermore, in Québec, the definition of an “employee”

6 A person working under another person’s direction and control in return for remuneration. 7 Supra, note 2, at pp. 9-13. 8 There is no obligation on the self-employed to participate in the Industrial Accidents and Occupational Diseases Program. Most of them do not contribute, either because they are unaware of the program or because they cannot afford it. 9 For a detailed discussion of employment status in Canada at the federal level and in some provinces, as well as in the U.S., see “The Treatment of Non-Traditional Workers in Canadian (excluding Québec) and American Law,” in Bernier et al., supra note 2. For a review of the Québec situation, see “L’accessibilité aux divers régimes de protection sociale: état de la situation au Québec,” in Bernier et al., supra note 2. Bernier 11/6/06 1:36 PM Page 403

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 403

varies from one statute to another, resulting in a situation in which a given worker might benefit from protection under one statute but not under another. Finally, there is a problem with those who find themselves in the legislative grey area between “employed” and “self-employed.” Some employers will misleadingly claim that such workers are self- employed or autonomous, resulting in a decrease in employer contributions to public social benefit plans. We can call this category “falsely self-employed workers.” This is a matter of great concern not only in North America but for the international community as a 2005 CanLIIDocs 206 whole. Indeed, the question of workers who have an “ambiguous status” or are in a “disguised employment relationship” (as it is now called) was extensively discussed at the 2003 annual conference of the International Labour Organization.10 As far as truly independent workers or contractors are concerned, the problem is quite different. They are self-employed and must be considered as such. It should be noted, however, that this group is not homogeneous. It is characterized not only by a large variety of trades and professions but also by a broad range of opinion within its ranks as to the appropriateness of social protection. Some independent workers and contractors have had their own businesses for a long time, and have accumulated a significant amount of capital. Despite the fact that they always face employment uncertainty, they have considerable confidence in their future: their retirement income security is based on assets accumulated over time (e.g., through investment in real estate). However, many other independent workers and contractors are impoverished. Their revenue and working conditions are similar to those of low-paid employees, they cannot afford to contribute to personal pension plans, and they frequently lack health care or dental care insurance. Even if in some cases they have formed voluntary associations to provide services on a group basis (such as computer services), and to help themselves build a network of business contacts, they invariably have insufficient bargaining power to obtain competitive coverage rates from insurance companies.

10 Rapport V, Le champ de la relation de travail (Genève: Bureau international du travail, 2003). See also J. Bernier, “Salarié, autonome ou . . .? Quels droits?” Le Soleil, Quebec City, July 12, 2003, p. D5. Bernier 11/6/06 1:36 PM Page 404

404 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Another defining characteristic of independent contractors is their often contradictory social and economic views. They strongly believe in liberal mercantile values, such as entrepreneurship, freedom of enterprise and competitiveness, and they generally oppose any government intervention in the workplace that could lead to compulsory programs such as parental leave. Frequently, they are interested in such programs only if their involvement is optional. This attitude leads to ambivalent and self-interested behaviour. For example, some would be willing to contribute to a parental leave program until they have had two or three children, but not thereafter. 2005 CanLIIDocs 206 In the specific field of occupational health and safety, it is worth noting that client firms have no obligation to provide self-employed workers with safe, healthy working conditions and appropriate services — things that they must provide for their own employees. The result is a risk that dangerous or hazardous work will be given to the self-employed.

(b) Level of Social Protection

A close assessment of existing laws reveals that the right of employers to use non-standard workers is almost completely uncon- strained. Resort to all forms of work is available to employers with virtually no restrictions, including work of indeterminate duration, part-time work and casual or on-call work. There are no rules that limit the use of temporary placement agency employees. This leaves great flexibility in the use of human resources. Moreover, disparity of treatment based on employment status is not prohibited by statute. There is no legal obligation to provide non- standard employees with the same working conditions enjoyed by permanent employees, despite the fact that they are equally qualified and perform the same job. Even in unionized firms, part-time and casual or on-call workers often do not have access to fringe benefits, such as health insurance, dental care, medicare and private pension plans. In some cases, they are even excluded from access to the grievance procedure. While the situation may vary slightly from one jurisdiction to another, the general picture is that most statutes are silent on the working conditions of non-standard workers, and do not Bernier 11/6/06 1:36 PM Page 405

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 405

guarantee equal treatment on the basis of employment status with respect to individual or collective labour relations. Without being exhaustive, I will now refer to some examples from Québec that also apply elsewhere in Canada. When access to certain benefits (e.g., paid holidays and annual leave) is based on a requirement of continuous service with one employer, it can be difficult if not impossible for non-standard workers to qualify, especially if their work is irregular or is done for more than one employer. The mode of compensation for holidays and annual leave, and for time lost through industrial accidents or occupational diseases, may be 2005 CanLIIDocs 206 different for permanent full-time employees than for part-time and casual employees or employees holding more than one job. Also, many studies show that the incidence of injuries at work is greater among temporary workers than among full-time permanent workers, and that most accidents occur during a worker’s first days on the job. Nevertheless, there are no legal provisions addressing this situation. Special attention must be paid to triangular labour relations resulting from the use of temporary placement agencies. In some cases, there are problems in identifying the employer. In other cases, there may be a disparity in the working conditions of agency employees, or contractual provisions that limit the individual’s freedom to work. Many contracts prohibit the employee from accepting a permanent job in the client firm, or prohibit that firm from offering a permanent job unless the employee and the firm pay the agency a fee that they cannot afford or are not prepared to pay. Sometimes these restrictive conditions are imposed without the worker’s consent. Some employers operate with very few employees of their own, most commonly first-line managers, and bring in agency workers to carry out production tasks. This use of “temporary workers” in what are really permanent jobs is not only an easy way to reduce payroll costs, but is also an effective union avoidance tactic. In French, it is called “marchandage de main-d’œuvre.” Some jurisdictions have legislative provisions that offer a partial solution to the problems posed by non-standard work. Our Committee report discusses some examples: ...provisions that define a normal or maximum workday for purposes of overtime pay, or that do not require a statutory general holiday to be a Bernier 11/6/06 1:36 PM Page 406

406 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

working day for an employee to be eligible, enable part-time workers to take advantage of these benefits. The concepts of “sole employer” or “joint employers” may also prove to be particularly useful in accounting for the situation of an employee working for more than one employer, whether in the context of individual or of collective labour relations. These concepts exist in the statutes or jurisprudence in a number of provinces and in the United States. They have been applied to the triangular labour relations resulting from the use of temporary placement agency workers, making the temporary labour agency and the client business jointly liable with regard to such employees.11

Another example, discussed later in this paper, is provided in Bill 2005 CanLIIDocs 206 143, introduced by the Québec government in December 2002, which offers a partial answer to problems related to disparity of treatment under the province’s Labour Standards Act.

4. POSSIBLE SOLUTIONS

Our Committee submitted 53 recommendations to the Québec Ministry of Labour, some that are of general interest and others that are more technical or specific to the situation in Québec. I will not summarize them all,12 but will outline the guiding principles that we set for ourselves, paying particular attention to the most important of the recommendations.

(a) Guiding Principles

We began by setting out three principles to guide our recommendations as a whole:

(1) The characterization of the employment relationship is a matter of public policy, and thus does not depend on the intention or the private decision of the parties. (2) Social protection systems must be accessible to as many workers as possible.

11 Bernier et al., supra, note 2, at pp. 10 and 11. 12 The recommendations are set out verbatim in Bernier et al., supra, note 2, at pp. 16-37. A more detailed discussion can be found in “Chapter 7 — Recommendations,” in Bernier et al., supra, note 1. Bernier 11/6/06 1:36 PM Page 407

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 407

(3) Disparity in treatment based on employment status is socially unacceptable.

(b) The Recommendations

Our recommendations are grouped into four broad categories: providing greater access to labour legislation, eliminating disparities in treatment based on employment status, providing social protection to agency employees, and providing social protection to self- employed workers. 2005 CanLIIDocs 206

(i) Greater Access to Labour Legislation

The Committee recommended that the concept of “employee” be expanded to give access to statutory protection to workers who are now falsely considered to be self-employed. We also advocated a harmonization of the definitions of “employee” and “worker” in various labour-related statutes. In particular, we recommended that the definition of “employee” be broadened to include a worker who is in a position of economic dependency when performing work under the direction of another, whether or not the worker is formally employed under a contract of employment. This broader definition would thus emphasize the criterion of economic dependency, rather than the classical criterion of juridical subordination.13 The Committee also recommended that legislative amendments be introduced to deal with the burden of proof, by providing that in matters concerning social protection, any doubt should be resolved in favour of the person trying to exercise a right. As a result, the Committee proposed that a person who establishes that he or she is

13 Recommendation No. 1: That the definition of “employee” in the Labour Code be revised and include only the following components: 1. a person who works for another person and for remuneration 2. whether this person is or is not an employee under a contract of employment 3. and who is obliged to personally do work for that other person in such context or under such terms and conditions that he or she is made eco- nomically dependent on that person. Bernier 11/6/06 1:36 PM Page 408

408 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

doing work for another person for remuneration is entitled to employee status.14

(ii) Elimination of Disparities in Treatment Based on Employment Status

The second set of recommendations addressed disparity in treatment based on employment status. In addition to proposing that the general principle of equal treatment be affirmed through legislation,15 as well as through minimum standards in collective agree- 2005 CanLIIDocs 206 ments, these recommendations targeted specific situations of disparity and proposed some concrete remedies.

CONTINUOUS SERVICE REQUIREMENTS

The Committee recommended that continuous service requirements should be abolished, as should the concept of working days for

14 Recommendation No. 3: That, in the Labour Code, a simple presumption of an employee-employer relationship be instituted for a person who establishes that he or she is personally doing work for another person for remuneration. 15 Recommendation No. 9: That the following fundamental principle be added to the Labour Standards Act: An employer may not give an employee working conditions inferior to those granted to the other employees performing similar or equivalent duties within the same establishment: — for the sole reason that this employee usually works fewer hours per week; — for the sole reason that this employee works outside the establishment; or — for the sole reason that this employee works on an on-call, temporary, casual or term basis, whether this work is performed for the employer directly or through a placement agency. Where appropriate, the pro rata temporis rule applies. Where an employee is unable to enjoy a benefit that is ill-suited to proportional access owing to its nature or its indivisibility, the employer shall pay the employee a compensatory indemnity equal to the amount the employer would have had to pay in order to ensure coverage of the employee, calculated pro rata to the time worked. There is no disparity in treatment when a difference is based on objective criteria, such as experience, seniority, length of service, merit rating, quan- tity of production or overtime, if such criteria are common to all employees in the establishment. Bernier 11/6/06 1:36 PM Page 409

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 409

the attribution of paid statutory holidays.16 A normal work day of eight hours should apply to all employees, and employees should have the right to refuse overtime that significantly exceeds their usual hours of work.17 In addition, the continuous service conditions for access to statutory holidays,18 and to pay for the first two days of leave for the birth or adoption of a child, should be eliminated.

RIGHT TO REFUSE TO WORK OVERTIME

Where an employee holds more than one job (none of them full- 2005 CanLIIDocs 206 time) for an indeterminate period, that employee should have the right to refuse to work more than his or her regular hours of work because of a conflict with his or her other work schedule.

CALCULATION OF HOLIDAY PAY

If a statutory holiday falls on a day when the employee would normally have worked, the indemnity paid should be equivalent to the daily pay he or she would have received. If the employee would not normally have worked on the holiday, the indemnity should be 1/20th of the pay earned by the employee during the preceding four weeks.19

16 In December 2002, even before these recommendations were made known, Bill 143 was adopted by the National Assembly. The Bill introduces an amendment of this nature. See Act to amend the Act respecting labour standards and other legislative provisions, Bill 143 (S.Q. 2002, c. 80), ss. 20 and 21 amending ss. 62 and 65 of the Labour Standards Act. 17 Bill 143, s. 17, which inserts a new section 59.0.1 into the Labour Standards Act, responds to this problem by limiting employees’ obligation to work beyond their usual hours of work. It introduces a right to refuse to work more than four hours after the employee’s regular daily working hours or more than 14 hours in 24, or, for an employee whose daily working hours are flexible or non-continuous, more than 12 hours in 24 or more than 50 hours a week. 18 Bill 143 contains an amendment of this nature. See s. 21, amending s. 65 of the Labour Standards Act. 19 Bill 143 provides a method of calculation of indemnity paid for statutory general holidays that retains the 1/20 rule in every case, which is liable to produce a result that penalizes an employee who would normally have worked had it not been a holiday and whose schedule does not correspond to that of the typical employee working five days per week. See s. 20 amending s. 62 of the Labour Standards Act and s. 79 (national holiday), amending s. 4 of the National Holiday Act. Bernier 11/6/06 1:36 PM Page 410

410 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

INDUSTRIAL ACCIDENTS AND OCCUPATIONAL DISEASES

As far as industrial accidents and occupational diseases are concerned, it should be affirmed that “the purpose of the income replacement indemnity paid to a worker who is unable to work as a result of an employment injury is to compensate for the worker’s loss of earning capacity.”20 Consequently, this payment should be calculated on the basis of yearly income.21 Where a worker holding more than one job suffers an employment injury that precludes the performance of his or her job(s), the 2005 CanLIIDocs 206 worker should be compensated for the loss of income from employers other than the one for whom he or she was working when the injury occurred.22 If a person holds more than one part-time job for an indeterminate period, the gross income on which an income replacement indemnity is calculated should be the higher of (1) the income that the person would derive from the best-paying job he or she is now unable to perform if he or she were performing that job full-time, or (2) his or her combined income from all of the jobs.23 Particularly dangerous tasks, and work that requires medical follow- up (e.g., work involving exposure to radiation), should not be done by non-permanent employees.

(iii) Social Protection of Agency Employees

The situation of employees who obtain work through a temporary employment agency raises a number of issues that go far beyond disparity in treatment. Examples include identifying the “real employer,” deciding who is liable to pay wages owed to an agency worker, and regulating contractual clauses that limit an employee’s freedom of access to a permanent job in the user firm or in a group or industry serviced by the agency.

20 Recommendation No. 18. 21 Recommendation No. 23. 22 Recommendation No. 29. 23 Recommendation No. 30. Bernier 11/6/06 1:36 PM Page 411

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 411

IDENTIFYING THE REAL EMPLOYER

The temporary employment agency should be recognized as the true employer in all legislation, subject to our recommendations (explained below) on union certification.24

DISPARITY OF TREATMENT

Conditions of remuneration and entitlement to statutory holidays should be those of the user firm, for the temporary employee’s 2005 CanLIIDocs 206 job or for a comparable job, if those conditions are better than those offered by the agency.25 Agency workers who do not have access to the employer’s benefit plans should receive pro rata compensation proportionate to the employer’s contribution to those plans for its other workers.26

JOINT RESPONSIBILITY

The employment agency and the user firm should be jointly liable for any amounts owing to the employee, as well as for compliance with occupational health and safety legislation.27

ACCESS TO PERMANENT JOBS

No contractual provision should be allowed to limit an employee’s access to a permanent job in the user firm or in a group or industry serviced by the agency, or to limit the user firm’s freedom to hire the employee when the agency assignment ends. This prohibition should extend to clauses imposing penalties or any other form of restriction on the user firm or the employee.28 Where the employee is hired by the user firm at the end of the agency assignment, the

24 Recommendation No. 31. 25 Recommendation No. 32. 26 Recommendation No. 33. 27 Recommendation No. 34. 28 Recommendation No. 36. Bernier 11/6/06 1:36 PM Page 412

412 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

duration of the contract of assignment should be included in the trial period and should be recognized in calculating the length of continuous service.29 The Québec Ministry of Labour and the Occupational Health and Safety Commission should give particular scrutiny to practices in the area of rehabilitation of agency employees following an injury.30

SINGLE EMPLOYER DECLARATION

The competent body (e.g., the Labour Relations Board or 2005 CanLIIDocs 206 Labour Standards Commission) should be given the authority to declare that a personnel agency and the user firm constitute a single employer, whenever the situation requires, to protect the rights of an agency employee who regularly fills a position that meets permanent needs in the user firm.31

UNION CERTIFICATION AND COLLECTIVE LABOUR RELATIONS

With respect to the issue of union certification, the situation of agency workers may vary from one user firm to another. For instance, a certification application might be filed on behalf of a group of agency employees who fill positions that meet a firm’s permanent needs, or in respect of a unit including both the user firm’s own employees and those provided by the agency. The Committee made various recommendations to deal with situations where there is already a certified unit in the user firm. In most cases, the competent body should have the authority to declare that the user firm and the agency constitute a single employer for purposes of certification, collective bargaining and the implementation of a collective agreement.32

CODE OF ETHICS

The Committee suggested that the Minister of Labour convene a roundtable of the major personnel agency stakeholders,33 to help

29 Recommendation No. 38. 30 Recommendation No. 43. 31 Recommendation No. 39. 32 Recommendation Nos. 40 to 42. 33 Recommendation No. 44. Bernier 11/6/06 1:36 PM Page 413

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 413

the parties find solutions to various problems. Issues to be addressed include ending the abuses engaged in by some agencies, providing the industry with a code of ethics, developing standard forms of contracts between user firms and agencies and between agencies and employees, discussing the problems raised by the assignment of hazardous work to agency employees, and establishing complementary social protection plans suited to this sector.

(iv) Social Protection of Self-Employed Workers 2005 CanLIIDocs 206

The final set of recommendations addressed the social protection needs of self-employed or independent workers who currently fall outside the scope of the definition of “employee.” As mentioned above, because this category of workers is heterogeneous and represents a broad range of interests, it is difficult to design social protection programs that will meet the needs of all the workers included in it. For this reason, the Committee made recommendations to facilitate voluntary access to various forms of collective representation in accordance with the needs and wishes of those independent workers who are interested in collective action.34 The legal framework of such representation would be open to non-salaried individuals who work for someone in return for remuneration or who sell a product that is the result of their personal labour, whether or not they are parties to a contract for services. They would enjoy the usual protections accom- panying the exercise of the right of association. More specifically, the Committee recommended that independent workers in a appropriate field of activity have the right to seek recognition or certification of an association for one or more of the following purposes:

(1) Representing individual workers before an agency or tribunal, and providing other services such as the establishment and administration of contributory social benefit plans. (2) Working with other partners in the given field of activity on certain matters, including the creation of mechanisms for joint action. This would involve designating other associations and agencies as partners, and requiring them to participate.

34 Recommendation No. 45. Bernier 11/6/06 1:36 PM Page 414

414 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

(3) Negotiating collective agreements with stakeholders in a given field. User firms would be obliged to bargain in good faith with a view to the establishment of minimum terms and conditions.

With respect to matters of health and safety, user firms and self- employed workers should have the same rights and obligations as employers and employees in standard employment relationships now have. This means, among other things, that user firms should be required to provide self-employed workers with the safe and healthy working conditions, and appropriate services, that they must provide 2005 CanLIIDocs 206 for their own employees.35

The Committee noted that European Union and some other European countries have led the way in addressing the phenomenon of non-standard work. This is not to say that measures taken elsewhere can be imported wholesale into Canadian law, but they nonetheless constitute useful benchmarks of access to social protection by non-standard workers. International Labour Organization reports, conventions and recommendations are also a source of guidance. Long before Canada did, international and regional bodies, particularly the ILO and the EU, began to recognize the role of non-standard work in job creation, and to establish legal instruments to address those activities. Our Committee summarized those developments in the following terms: So far, the conventions or recommendations of the ILO have addressed part- time work, home work and private placement agencies.36 In addition to these,

35 Recommendations Nos. 47 to 51. 36 The most recent conventions and recommendations include Convention concerning Part-Time Work, 1994 (C175); Convention concerning Home Work, 1996 (C177); Convention concerning Private Employment Agencies, 1997 (C181); Recommendation concerning Private Employment Agencies, 1997 (R188); Conférence internationale du travail, 77e session 1990, Rapport VII, Promotion de l’emploi indépendant, Bureau international du travail, Genève; Report of the Meeting of Experts on Workers in Situations Needing Protection, basic technical document (Geneva), May 15-19, 2000, GB. 279/2, and the Report of the Discussion, MEWNP/2000/4 (Rev.). Bernier 11/6/06 1:36 PM Page 415

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 415

European Community law also deals with occupational health and safety,37 part-time work,38 term contracts,39 temporary employment agencies40 and telework.41 What these instruments have in common is that they pursue, to vary- ing degrees, the dual objective of guaranteeing equality of treatment among workers who do similar work in the same business, irrespective of their employment status, and ensuring or facilitating access by these workers to good and permanent jobs in the companies that employ them. Virtually all member states42 of the European Union have now finished the exercise of ensuring that their national legislation is fully consistent with the directives adopted by the competent authorities at the European level.

Moreover, rather than simply amend their national legislation to reflect 2005 CanLIIDocs 206 the European directives, a number of EU member countries have adopted much more restrictive legislation aimed at better regulating non-standard work. Some countries have established special measures to limit the use of insecure employment or to discourage employers from using it. Examples include provisions specifying the conditions under which an employer may make use of temporary labour or employees from temporary employment agencies, and measures that have the effect of increasing the cost of this type of labour by imposing the payment of end-of-contract bonuses, which in some cases can represent substantial amounts. Finally, we note that the ILO is very concerned about the situation of dependent workers who do not benefit from labour legislation because of their disguised or ambiguous status. ILO experts have considered this issue at some length. Moreover, it was deemed of such importance to members of the ILO

37 EC, Council Directive 91/383/EEC of 25 June 1991 supplementing the measures to encourage improvements in the safety and health at work of workers with a fixed-duration employment relationship or a temporary employment relationship, Official Journal L 206, 29/07/1991. 38 EC, Council Directive 97/81/EC of 15 December 1997 concerning the framework agreement on part-time work concluded by UNICE, CEEP and the ETUC, [1998] O.J. L. 014/9, amended by [1998] O.J. L. 131/10. UNICE is the Union of Industrial and Employers’ Confederations of Europe, CEEP is the Centre européen de l’entreprise publique, and ETUC is the European Trade Union Confederation. 39 EC, Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, [1999] O.J. L. 175/43. 40 Commission of the European Communities, Proposal for a Directive of the European Parliament and the Council on working conditions for temporary workers (Brussels), March 20, 2002, 2002/0072 (COD). 41 Framework Agreement on Teleworking, signed by ETUC, UNICE/UEAPME and CEEP, July 16, 2002. 42 This refers to the 15 member states prior to June 1, 2004. Bernier 11/6/06 1:36 PM Page 416

416 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

Governing Body that they decided to make this an agenda item for general discussion at the 91st session of the International Labour Conference in June 2003.43 As noted, the issue of workers whose status is “ambiguous” is also on the agenda for the 2006 ILO Conference,44 with a view to the ultimate adoption of a formal recommendation.

5. CONCLUSION

In conclusion, I would like to emphasize two points. First, the 2005 CanLIIDocs 206 only satisfactory way to resolve most of the issues raised above is through adequate legislative action, which would mean an increase in the cost of human resources. Second, coordinated action should be taken by the federal and provincial governments.

(a) Legislative Action Is Needed

Our existing labour legislation was designed and developed to meet the needs and expectations of people in traditional wage-earning situations. It is now clear that a major legislative effort is required in order to adapt the various statutes to the expectations of the non- standard workers who constitute an increasing proportion of the labour force. It is important to note that implementing most of the proposed measures could increase labour costs for many employers, including governments. So far, this has been the main argument of employer organizations against the Committee’s recommendations. However, the economic impact of those recommendations should be assessed not only on a short-term basis, but also with a view to the long-term effects of inaction. We took the position that a failure to act will bring significant social costs in the long run. Furthermore, given the number and range of statutes that have to be amended, it is unrealistic to think that the endeavour can be completed in one legislative session, notwithstanding the urgency of

43 Bernier et al., supra, note 2, at pp. 12-13. 44 International Labour Conference, 95th Sess. (2006), fifth item on the agenda, Report V(1), “The Employment Relationship”: http://www.ilo.org/public/english/standards/relm/ilc/ilc95/reports.htm. Bernier 11/6/06 1:36 PM Page 417

LEGISLATIVE PROTECTION FOR NON-STANDARD WORKERS 417

giving non-standard workers access to social protection and ending the current disparities in their treatment. In the Committee’s words, it is safer and more realistic to proceed gradually and in stages. If the member countries of the European Union, acting in a different context and with different resources, took more than ten years to get there, this is an indication that it may be unreasonable to try to do everything at once, although it does not mean that we need to take that much time.45

(b) The Provincial and Federal Governments

Must Act Jointly 2005 CanLIIDocs 206

Owing to the close geographic and economic connections between Canadian provinces, concerted action (or failing that, at least an exchange of information) would lead to greater awareness of the urgent need for action. In this respect, it will be interesting to read the final report of the Federal Labour Standards Review Commission (the Arthurs Commission),46 expected in June 2006, to see what amendments it proposes to Part III of the Canada Labour Code to take account of the situation of non-standard workers. Positive action taken in the federal sphere might well have a significant effect on provincial legislative bodies.

45 Bernier et al., supra, note 2, at pp. 11-12. 46 Commission sur l’examen des normes du travail fédérales/Federal Labour Standards Review Commission, Professor Harry Arthurs, Commissioner. Bernier 11/6/06 1:36 PM Page 418 2005 CanLIIDocs 206 Faraday 11/6/06 1:37 PM Page 419

The Expanding Scope of Labour Arbitration: Mainstreaming Human Rights Values and Remedies

Fay Faraday*

Reflecting a number of social and legal developments, labour arbitration has in recent years become the primary forum for the adjudication of human 2005 CanLIIDocs 206 rights claims by unionized employees in Canada. However, the “mainstreaming” of public rights into what has traditionally been a forum for the enforcement of private contractual rights has thrown a spotlight on the difference between the types of remedies usually awarded by arbitrators and those available from statutory human rights tribunals. Whereas remedies at arbitration are normally based on a “make-whole” approach, which aims only to compensate the individual grievor for the harm that has been done, human rights remedies have a broader, systemic character: they seek not only to make the complainant whole, but also to eliminate the sources of discrimination and prevent discrimination from recurring in the workplace. The author contends that, unless arbitrators move beyond the conventional make-whole model, and provide effective systemic redress for human rights violations, the protection afforded to the human rights of unionized employees will be eroded. At the same time, she contends, both the institutional limits of arbitration and the public interest militate in favour of maintaining and properly funding human rights commissions and tribunals as specialized, public institutions. In this regard, the author is opposed to proposals to grant arbitrators exclusive jurisdiction over human rights claims arising in unionized workplaces, and argues that the system of concurrent jurisdiction be retained.

1. INTRODUCTION

Labour arbitration has traditionally been viewed as a wholly private process in which arbitrators interpreted, applied and enforced the terms negotiated by the parties to a collective agreement. Since the 1970s, however, it has been clear that labour arbitrators are not confined to the provisions and values of that private bargain. In its 1974 decision in McLeod v. Egan,1 as well as in subsequent decisions, the Supreme Court of Canada affirmed that arbitrators “must

* Cavalluzzo Hayes Shilton McIntyre & Cornish LLP. I am grateful to Victoria Shen, student-at-law, for her research assistance in preparing this paper. 1 (1974), [1975] 1 S.C.R. 517. Faraday 11/6/06 1:37 PM Page 420

420 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

look beyond the four corners of the collective agreement” in order to ascertain the substantive rights and obligations of the parties, and to determine the limits on an employer’s right to manage its operations.2 Thus, arbitrators can and must consider external statutes of general application, and these public laws will prevail when there is a conflict with the collective agreement.3 In the decades since McLeod was decided, though labour arbitration has remained primarily a forum for resolving disputes about private contractual rights, it has increasingly been called upon to safeguard fundamental public rights. In fact, in the area of public rights with which this paper is concerned 2005 CanLIIDocs 206 — those grounded in human rights legislation — labour arbitration has evolved to the point where it has become the primary forum for adjudicating human rights claims by unionized workers in Canada. The question for us now is not whether human rights claims should or should not be adjudicated at arbitration. Inevitably, they must. At the most basic level, this is so because collective agreements themselves have evolved. Collective agreements often include express prohibitions against discrimination that parallel the right to be free of discrimination granted under human rights statutes. Collective agreements also increasingly incorporate express provisions that strive to secure the equal inclusion and participation of all workers, be it in relation to religious accommodation, pay equity, discrimination-free job evaluation processes, accommodation of workers with disabilities, or other areas in which the diversity of the workforce expresses itself. Because of this evolution in the content of collective agreements, even on the traditional contract enforcement model, modern labour arbitration must necessarily address human rights claims and have reference to human rights principles developed under public law. The critical question, then, is to what extent labour arbitration can effectively remedy breaches of human rights — rights which, the

2 See Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, at paras. 24-26. 3 In McLeod v. Egan, supra, note 1, the Supreme Court ruled that a broad management rights clause must be read in accordance not only with the terms of the collective agreement but in accordance with employees’ statutory rights, in that case the maximum hours of work under the Ontario Employment Standards Act. The Court held that it would be illegal to read the collective agreement as giving the employer an unqualified right to require work in excess of the statutory maximum hours. Faraday 11/6/06 1:37 PM Page 421

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 421

courts have repeatedly held, have a quasi-constitutional status. In my view, while there are signs that some arbitrators are up to this challenge, others are reluctant to go beyond the parameters of a compensatory “make-whole” order and to grant a broader range of human rights remedies. To date, the capacity of arbitration to meet the unique challenges of adjudicating human rights cases has not yet been fully tested. I suggest in this paper that, if arbitrators are to effectively rectify breaches of human rights, they will need to have authority to grant a full range of human rights remedies, and to use that authority. This will require moving beyond the compensatory 2005 CanLIIDocs 206 remedies historically awarded at arbitration, and applying creative systemic remedies that are more consistent with those implemented by human rights tribunals. Unless unionized workers can seek and receive true human rights remedies through grievance arbitration, the robust protection which should be afforded to these fundamental rights will be eroded. At the same time, however, the institutional limits of labour arbitration must be acknowledged. It remains an essentially private model of contract enforcement in which adjudicators do not enjoy the institutional independence or security of courts or even human rights tribunals. Where arbitrators are selected and paid by the parties to a collective agreement, do they have sufficient independence to award strong, systemic human rights remedies? Equally significantly, as a matter of public interest, should the enforcement of fundamental public rights fall exclusively to a mechanism of private enforcement where the complaint arises in a unionized workplace? On both questions, there is room for doubt. Ultimately, therefore, while labour arbitration must be able to provide effective enforcement of human rights in the workplace, the “mainstreaming”4 of human rights into

4 In using the terms “mainstream” and “mainstreaming,” I refer to a concept or policy position developed in the international human rights field. Mainstreaming posits that, because human rights are foundational to all relationships and because discrimination is systemic, securing human rights in practice requires that action to protect and promote those rights be taken simultaneously by many different actors — governments, policy-makers, adjudicators, employers, unions and civil society — in a multitude of arenas. This is reflected in international human rights law by the United Nations’ adoption of a range of extensive Platforms for Action, which set out in detail what must be done to eliminate discrimination. Rather than seeing human rights as the sole responsibility of specialized human rights institutions, mainstreaming calls for public and private actors, in their own jurisdictions, to take all necessary steps to secure observance of human rights. Faraday 11/6/06 1:37 PM Page 422

422 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

this private forum should not be permitted to undermine the vital role of specialized human rights tribunals. In particular, those tribunals should retain concurrent jurisdiction to inquire into and remedy violations of human rights in the unionized workplace.5

2. BRINGING HUMAN RIGHTS INTO THE MAINSTREAM

Before examining the remedial power of arbitrators in relation to human rights violations, it is worth reviewing some of the trends 2005 CanLIIDocs 206 which have brought human rights adjudication into the mainstream of labour arbitration. One of the most significant of these trends is the fact that, in the past few decades, a strong human rights discourse has emerged in Canadian society. The civil rights/civil society movements, the entrenchment of human rights in provincial and federal human rights codes, the labour movement’s promotion of a social justice agenda, and the adoption of the Canadian Charter of Rights and Freedoms have all contributed to a social and political discourse that is grounded in the language and values of human rights. As that discourse matured, human rights could no longer be relegated to a single, discrete sphere of interaction. Rather, the language and values of human rights — the consciousness of human rights entitlements and obligations — increasingly infused society’s understanding of legal relationships. Along with this has come acceptance of the idea that discrimination is systemic. It is not something that happens to isolated individuals due to the malice of a few. Rather, it is built into the unspoken assumptions and unquestioned practices that have pre- vailed in the past, as well as into the unexamined institutions and structures of relationships — particularly the employment relationship. It was inevitable, therefore, that human rights values would come to be engaged in workplace disputes, as equality-promoting provisions were negotiated into collective agreements and the effect

5 The Supreme Court of Canada has recently affirmed that arbitrators and human rights tribunals have concurrent jurisdiction over human rights issues: Quebec (Commission des droits de la personne et de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185 (the Morin case). Faraday 11/6/06 1:37 PM Page 423

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 423

of existing provisions was subjected to an ongoing process of re- examination through a human rights lens. The mainstreaming of human rights values into labour arbitration has been promoted further by the dovetailing of two key legal developments — one substantive, the other procedural. These developments relate to (a) the nature of workplace parties’ human rights obligations; and (b) the scope of arbitrators’ jurisdiction over workplace disputes. The first development has been the evolution of human rights jurisprudence, which has explicitly impressed upon workplace par- 2005 CanLIIDocs 206 ties that they have ongoing, pro-active legal obligations to identify and eliminate discriminatory practices in the workplace. The Supreme Court of Canada’s 1992 ruling in Central Okanagan School District No. 23 v. Renaud 6 recognized that employers and unions both have a legal duty under human rights legislation to accommodate employees to the point of undue hardship in order to provide a discrimination-free workplace. Whether discrimination arises through the application of a provision in the collective agreement or through the application of a workplace rule or practice developed unilaterally by the employer, the employer and the union both have a responsibility to take whatever steps are necessary, to the point of undue hardship, to accommodate employees.7 The understanding of how this duty to accommodate must be applied was strengthened by the Supreme Court’s 1999 ruling in British Columbia (Public Service Employee Relations Commission) v. B.C.G E.U.8 (the Meiorin case). In Meiorin the Court set out a new test for analyzing discrimination which broadened the concept of accommodation and widened the remedies available to redress discrimination, regardless of how it arose. Meiorin rejected the older

6 [1992] 2 S.C.R. 970. 7 In Renaud, ibid., the Court held that both employers and unions are subject to the duty to accommodate, and that both are held to a standard of undue hardship. However, the Court also recognized that the duty to accommodate will be applied differently to employers and unions, since the employer has ultimate control over management of the workplace and is generally better placed to formulate accommodations, whereas the union is charged with protecting the collective rights of employees. 8 [1999] 3 S.C.R. 3. Faraday 11/6/06 1:37 PM Page 424

424 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

bifurcated approach which applied a different analysis and yielded different remedies, depending on whether the discrimination arose directly or indirectly. In its place, Meiorin established a new, unified test for establishing a bona fide occupational requirement.9 Most importantly, it stressed that accommodation must now be considered by employers pro-actively — at the front end, in the development of workplace rules and practices. It can no longer happen only after the fact, in reaction to an individual complaint. In the words of the Court:

Employers designing workplace standards owe an obligation to be aware of 2005 CanLIIDocs 206 both the differences between individuals, and differences that characterize groups of individuals. They must build conceptions of equality into workplace standards. By enacting human rights statutes and providing that they are applicable to the workplace, the legislatures have determined that the standards governing the performance of work should be designed to reflect all members of society, in so far as this is reasonably possible.... The standard itself is required to provide for individual accommodation, if reasonably possible.10

9 In Meiorin, ibid., at para. 54, McLachlin J., as she then was, proposed the following new three-part test for determining whether a prima facie discriminatory standard can be justified as a BFOR: An employer may justify the impugned standard by establishing on the balance of probabilities: (1) that the employer adopted the standard for a purpose rationally con- nected to the performance of the job; (2) that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfillment of that legitimate work-related purpose; and (3) that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. 10 Meiorin, ibid., at para. 68, underlining in original, italics added. In para. 65, McLachlin J. listed a number of questions that can help assess whether a particular workplace rule or practice meets the new standard of accommodation: (a) Has the employer investigated alternative approaches that do not have a discriminatory effect, such as individual testing against a more individ- ually sensitive standard? (b) If alternative standards were investigated and found to be capable of ful- filling the employer’s purpose, why were they not implemented? (c) Is it necessary to have all employees meet the single standard for the employer to accomplish its legitimate purpose or could standards Faraday 11/6/06 1:37 PM Page 425

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 425

This articulation of the duty to accommodate is perhaps the most significant human rights development in the past decade. Reflecting the fact that accommodation has become one of the most commonly arbitrated issues, the principles set out in Meiorin have been applied in an extensive body of arbitral as well as human rights tribunal jurisprudence. It has also led to a real infusion of human rights thinking into daily labour relations practice, as workplace parties have become better educated about accommodation obligations and have increasingly incorporated these principles into their day-to-day management of the workplace. 2005 CanLIIDocs 206 The second legal development underlying the “mainstreaming” of human rights pertains to the expanded scope of arbitral jurisdiction. Jurisprudential and legislative changes have resulted in a significant increase in the number of human rights claims by unionized employees that are directed to the arbitration forum. In its landmark 1995 ruling in Weber v. Ontario Hydro,11 the Supreme Court of Canada ruled that labour arbitrators have exclusive jurisdiction to resolve all disputes or differences arising either expressly or inferen- tially from a collective agreement. Accordingly, a court should decline jurisdiction where “the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.” Under the terms of the collective

reflective of group or individual differences and capabilities be established? (d) Is there a way to do the job that is less discriminatory while still accom- plishing the employer’s legitimate purpose? (e) Is the standard properly designed to ensure that the desired qualification is met without placing an undue burden on those to whom the standard applies? (f) Have other parties who are obliged to assist in the search for possible accommodation fulfilled their roles? The case law makes clear that the supervising tribunal must also consider the procedure that the employer adopted to assess the issue of accommodation, and the substantive content of a more accommodating standard that could have been offered and/or the employer’s reasons for not offering such a standard. Where the impugned standard does not meet the test for a bona fide occupational requirement, regardless of how the discrimination arose, the standard can be struck down and the appropriate remedy chosen from among the full panoply of options available under human rights legislation. 11 [1995] 2 S.C.R. 929. Faraday 11/6/06 1:37 PM Page 426

426 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

agreement in Weber, the Supreme Court concluded that the arbitrator had exclusive jurisdiction to consider tort and Charter claims brought by an employee in response to the employer’s use of a private investigator to conduct surveillance of the employee while he was receiving sickness benefits. This ruling has resulted in a wide range of common law torts, benefit claims and statutory entitlements being adjudicated by arbitrators in cases where the claimant might otherwise have been required to seek a remedy in court. One of the policy objectives underlying the decision in Weber — avoiding duplicative claims in multiple fora — has also been pur- 2005 CanLIIDocs 206 sued by way of legislative amendments. In Ontario, the Labour Relations Act was amended in the early 1990s to state expressly that arbitrators have jurisdiction to interpret and apply human rights and employment-related statutes. That provision is currently set out in s. 48(12)(j) of the Act, and reads as follows: 48(12) An arbitrator or the chair of an arbitration board, as the case may be, has power, ... (j) to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement. Similar provisions have been enacted in British Columbia, Nova Scotia and the federal jurisdiction.12 In a separate development, human rights commissions in a number of provinces have sought to streamline their rapidly growing case loads, looking to arbitration as an alternative forum in which human rights claims could be addressed. For example, in an effort to reduce its mounting backlog of cases and to respond to charges of inefficiency, the Ontario Human Rights Commission in 1993 adopted a policy of diverting most human rights complaints by unionized employees to grievance arbitration. Pursuant to that policy, the Commission has made increasing use of its discretion under s. 34 of

12 Labour Relations Code, R.S.B.C. 1996, c. 244, s. 89(9); Trade Union Act, R.S.N.S. 1989, c. 475, s. 43(1); Canada Labour Code, R.S.C. 1985, c. L-2, s. 60(1)(a.1). Faraday 11/6/06 1:37 PM Page 427

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 427

Human Rights Code,13 which allows the Commission to decline to deal with a complaint on the basis that it could be more appropriately dealt with in another forum (such as arbitration). As Brian Etherington has explained, “[h]uman rights commissions in several jurisdictions, most notably Ontario, have adopted a policy of almost complete refusal to take jurisdiction over human rights complaints by employees who work in an organized workplace and are subject to a collective agreement.”14 This shift towards arbitration as the main forum for hearing human rights claims by unionized employees was given further 2005 CanLIIDocs 206 momentum by the Supreme Court of Canada’s 2003 decision in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,15 which held that workers’ rights under human rights and other employment-related statutes are incorporated into every collective agreement. Parry Sound arose out of a grievance by a probationary employee who was dismissed following her maternity leave. The grievor alleged that she had been discriminated against, contrary to the Ontario Human Rights Code. However, the collective agreement in that case expressly provided that “a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is

13 R.S.O. 1990, c. H-19. Section 34 provides: 34(1) Where it appears to the Commission that, (a) the complaint is one that could or should be more appropriately dealt with under an Act other than this Act; (b) the subject-matter of the complaint is trivial, frivolous, vexatious or made in bad faith; (c) the complaint is not within the jurisdiction of the Commission; or (d) the facts upon which the complaint is based occurred more than six months before the complaint was filed, unless the Commission is satisfied that the delay was incurred in good faith and no substantial preju- dice will result to any person affected by the delay, the Commission may, in its discretion, decide to not deal with the complaint. 14 B. Etherington, “Promises, Promises: Notes on Diversity and Access to Justice” (2000-2001), 26 Queen’s L.J. 43, at p. 56. See also Ontario Human Rights Commission, Guidelines on the Application of Section 34 of the Ontario Human Rights Code (Toronto: OHRC, 1993). 15 Parry Sound, supra, note 2. Faraday 11/6/06 1:37 PM Page 428

428 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

not subject to the grievance and arbitration procedures and does not constitute a difference between the parties.” Relying on this provision, the employer raised a preliminary objection that the arbitrator had no authority to deal with the matter. The Supreme Court ruled that, despite the restrictive language of the collective agreement, the grievance was arbitrable because the parties could not contract out of their statutory human rights obligations. Rather, the Court held, the management rights provision of the collective agreement must be read as incorporating all of the rights and obligations under human rights and other employment-related 2005 CanLIIDocs 206 statutes. Writing for the majority, Iacobucci J. drew on the analysis in McLeod v. Egan to hold as follows: . . . the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee’s statutory rights. The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract.16 Iacobucci J. also considered the effect of the requirement under s. 48(1) of the Ontario Labour Relations Act that every collective agreement must provide for the final and binding settlement by arbitration of all “differences” between the parties arising under the collective agreement. In his view, a failure to exercise management rights consistently with the Human Rights Code or other employment-related legislation gives rise to an arbitrable difference under the collective agreement: Put simply, there are certain rights and obligations that arise irrespective of the parties’ subjective intentions. These include the right of an employee to equal treatment without discrimination and the corresponding obligation of an employer not to discharge an employee for discriminatory reasons. To hold otherwise would lessen human rights protection in the unionized workplace by allowing employers and unions to treat such protections as optional, thereby leaving recourse only to the human rights procedure.17

16 Ibid., at para. 28. 17 Ibid., at para. 36. Faraday 11/6/06 1:37 PM Page 429

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 429

With respect to s. 48(12)(j) of the Act, the decision in Parry Sound makes clear that an express statutory provision granting arbitrators authority to interpret and apply employment-related legislation is not required for an arbitrator to assert jurisdiction over a human rights claim arising in a unionized workplace. At the same time, Iacobucci J. noted, by enacting s. 48(12)(j), the Ontario legislature had affirmed that “grievance arbitrators have not only the power but also the responsibility to implement and enforce the substantive rights and obligations of human rights and other employment-related statutes as if they were part of the collective agreement.”18 2005 CanLIIDocs 206 The cumulative effect of these developments is that arbitration has become the primary forum for the adjudication of human rights claims by unionized employees. In the wake of Parry Sound, it is only to be expected that this trend will continue. The question, therefore, is whether labour arbitration is able to provide unionized employees with the same rigorous remedial protection that is afforded by statutory human rights tribunals.

3. HUMAN RIGHTS REMEDIES AT ARBITRATION

In keeping with the principle that a right must have an effective remedy, it has long been recognized that arbitration must be able to fashion the remedies that are necessary to vindicate rights that have been breached. As Bora Laskin stated in the landmark Polymer Corp. case, the fact that the collective agreement does not expressly grant arbitrators the right to award a particular kind of remedy is immaterial: Once the parties have submitted themselves to the jurisdiction of a board of arbitration authorized to adjudicate on an alleged violation of a collective agreement obligation, they have accepted the full range of the tribunal’s adjudicative powers (unless expressly limited) which are immanent in such adjudication.19 Despite this broad statement of principle, the traditional approach to remedies at arbitration is reactive and compensatory. The “make- whole” principle on which this approach is based seeks to place the

18 Ibid., at para. 40. 19 Polymer Corp. Ltd. and Oil, Chemical & Atomic Workers (1959), 10 L.A.C. 51 (Laskin), at p. 60, affirmed [1962] S.C.R. 322. Faraday 11/6/06 1:37 PM Page 430

430 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

grievor in the position he or she would have been in had the collective agreement not been breached. Traditional remedies include reinstatement, compensation, and declarations. Arbitral remedies for human rights violations — even after Weber and Parry Sound — generally stick very close to the traditional pattern. Such remedies perpetuate a narrow understanding of the nature of a human rights breach as an individual rather than systemic problem and keep a tight focus on the facts of the particular claim. They seek only to compensate the individual grievor for the harm that has been done. This conventional arbitral practice is in contrast to the broader, 2005 CanLIIDocs 206 institutional approach to remedies under human rights legislation. Human rights remedies aim not only to make the complainant whole, but also to eliminate future discrimination. Such remedies are not merely compensatory; they are transformative. In Ontario, for example, s. 41(1)(a) of the Human Rights Code expressly provides that where the Tribunal has found a violation of rights under the Code,it can direct the party to do anything that, in the opinion of the Tribunal, the party ought to do to achieve compliance with this Act, both in respect of the complaint and in respect of future practices ....20 Thus, the Tribunal is expressly granted extensive powers to order non-monetary and systemic relief, and to craft remedies that both address the discrimination that has occurred and prevent discrimination in the future. This broad remedial approach, which is both compensatory and forward-looking, is consistent with securing quasi-constitutional rights. It is also consistent with the human rights goal, underscored in Meiorin, of transforming workplace practices in order to eradicate systemic discrimination.21 The Supreme Court of Canada has itself emphasized the necessity of broad remedial orders as a vehicle for eradicating discrimination that is systemic in nature. In Action Travail, the Court held that “[t]o combat systemic discrimination, it is essential to create a

20 Emphasis added. See also Ontario’s proposed Bill 107, the Human Rights Code Amendment Act, 2006, which at the time of publication had passed Second Reading. Sections 42 and 43 of the Bill continue the Tribunal’s mandate to provide remedies in respect of future practices. 21 Meiorin, supra, note 8, at para. 41. Faraday 11/6/06 1:37 PM Page 431

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 431

climate in which both negative practices and negative attitudes can be challenged and discouraged.”22 Accordingly, the Court ruled, where discrimination is supported by systemic factors, an appropriate remedy must likewise be systemic in order to “strike at the heart of the problem, to prevent its recurrence and to require that steps be taken to enhance the work environment.”23 Statutory human rights tribunals have, in fact, crafted a wide range of non-monetary remedies which “strike at the heart” of systemic discrimination. While these remedies take many forms, some examples include: 2005 CanLIIDocs 206

¥ ordering specifically designed human rights training programs for managers; ¥ ordering education seminars or human rights training for the workplace generally; ¥ developing and implementing comprehensive workplace harassment and discrimination policies; ¥ ordering an audit of workplace standards or practices that adversely impact on certain groups in order to bring the standards into compliance with the human rights code; ¥ implementing special programs, such as employment equity, to rectify past discrimination and prevent future discrimination; ¥ establishing internal review committees or human rights committees to monitor human rights issues in the workplace; ¥ appointing investigators or fact-finders to investigate claims of systemic discrimination; ¥ appointing third-party monitors to oversee and report on implementation of the Tribunal’s orders.

A more complete list of systemic remedies that have been awarded by human rights tribunals is set out in the Appendix to this paper. As can be seen, the compensatory remedies typically awarded by arbitrators are a far cry from the orders that human rights tribunals can make. It may be that arbitrators are wary of how far their

22 Canadian National Railway Co. v. Canada (Canadian Human Rights Commission) (Action Travail des Femmes), [1987] 1 S.C.R. 1114, at p. 1139. 23 Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84, at p. 94. Faraday 11/6/06 1:37 PM Page 432

432 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

remedial orders can go without transgressing the standard contractual prohibition against amending, modifying or altering the terms of the collective agreement. While that may be a legitimate concern, the limits of remedial action have not yet been fully probed. Nevertheless, there are signs that some parties are seeking, and some arbitrators are beginning to provide, more extensive relief. For example, a debate has emerged about whether an arbitrator can award punitive or aggravated damages.24 Indeed, in the wake of Weber and Parry Sound, a number of arbitrators have in fact considered award- ing punitive or aggravated damages in cases involving human rights, 2005 CanLIIDocs 206 and have concluded that they have jurisdiction to do so. However, they have generally found on the facts that such damages were not warranted. Some parties are also seeking, and arbitrators beginning to order, more extensive systemic remedies. Such remedies are still framed in accordance with the contractual “make-whole” model, but they recognize that simply reinstating or returning a grievor to a discriminatory environment does not make him or her whole. Rather, these awards take the position that to make a grievor “whole” requires that the work environment must be changed in order to remove the discriminatory dynamic. Two interesting recent examples of this remedial approach are found in the cases of Toronto Transit Commission and A.T.U. (Stina)25 and Ontario (Ministry of Community Safety & Correctional Services) and O.P.S.E.U. (Latimer).26 In the Stina case, the grievor had been harassed for an extended period of time by his foreman, despite the grievor’s attempts to resolve the matter with the foreman, as well as with his supervisors and the employer’s human rights department. He suffered major depression as a result of the harassment and stress, which resulted in his being off work for nine months. The union argued that the Commission’s continued refusal to properly investigate and rectify the poisonous work environment constituted discrimination and created an unsafe workplace. Arbitrator Shime ordered that

24 O.P.S.E.U. v. Seneca College of Applied Arts & Technology (Olivo) (2004), 73 O.R. (3d) 185 (Div. Ct.), reversed [2006] O.J. No. 1756 (QL) (C.A.), at para. 71. 25 (2004), 132 L.A.C. (4th) 225 (Shime). 26 [2001] O.G.S.B.A. No. 46 (QL). Faraday 11/6/06 1:37 PM Page 433

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 433

(1) the grievor be compensated for the time he was on sick leave, by restoring his sick leave credits and compensating him for any difference between his sick pay and regular salary during the nine months he was off work; (2) the foreman and the employer pay the grievor $25,000 in general damages; (3) the grievor be granted “workplace immunity” from the foreman who had harassed him; and that (4) the employer institute anti-abuse and anti-harassment training for all of its managerial staff within a reasonable period, and 2005 CanLIIDocs 206 provide the union and the grievor with proof of implementation.

With respect to the third part of the order, providing for an assurance of immunity from the harassment, Arbitrator Shime expressed doubt that his jurisdiction extended to taking action directly against the foreman, as he was not a member of the bargaining unit. However, he found that it was within his power to order the Commission to “ensure that [the grievor] have a harassment-free workplace,” and that the foreman “have no communication whatsoever with [the grievor] either verbally or by gesture.” Arbitrator Shime noted that very often in harassment cases, the victim is ordered to be moved to a different position, but he declined to make such an order in this instance. Rather, he directed that the grievor should be permitted “to move freely among the Commission’s various workplaces,” and that if he bid for or was transferred to an area where the foreman worked, the Commission was to move the foreman. The grievor was also to be given the opportunity to return to his former position, if he desired to do so. The Latimer case involved findings of sexual harassment, discrimination on the basis of sex and disability, violation of the grievor’s privacy rights as a result of the improper disclosure of confidential health information, and the existence of a toxic work environment in which the grievor was subjected to reprisals and singled out “for very exceptional and unfavourable treatment.” In an initial award issued in 2001, the Ontario Grievance Settlement Board ordered a wide range of remedies, including:

(1) damages with interest to compensate for all wages, benefits, statutory holiday pay, lost overtime, vacation credits, and lost seniority; Faraday 11/6/06 1:37 PM Page 434

434 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

(2) damages for pain and suffering, loss of dignity and mental anguish; (3) an additional “gross-up” payment to cover increased income tax liability flowing from the above heads of damages; (4) an order that the employer provide written apologies and acknowledgments of wrongdoing; and (5) an order that the employer take a range of actions to “detoxify the workplace,” and to take steps to facilitate the grievor’s return to work from medical leave. 2005 CanLIIDocs 206

After nearly three years, when it became evident that these remedies had still not been implemented, the union asked the Board to reconvene the hearing. In 2004, the Grievance Settlement Board fixed the quantum of damages, including an award of $7,500 for mental anguish. Furthermore, Vice-Chair Kaufman found that the employer’s failure to implement the direction to detoxify the poi- soned work environment constituted a continuing breach of the collective agreement. She noted that [a]n employer is required to provide an environment for all its employees which they can enter with trust and confidence that they will be respected as individuals and not subject to harassment and discrimination. Where, as in this case, the employer fails to provide such an environment, it cannot reasonably expect or require an employee to report to work in such an environment.27 The matter was reconvened on two further occasions, again to address continuing problems with implementation. By the end of 2004, medical evidence showed that the grievor was unable to return to work, and that her symptoms were a consequence of the employer’s breaches of the collective agreement. This led the Board to find that the prolonged delay in complying with the “detoxifica- tion” order had frustrated the intended effect of the remedial directions. In its words, the delay “did nothing to assist and very probably undermined the grievor’s ability to recover sufficiently to return to

27 Ontario (Ministry of Community Safety & Correctional Services) and O.P.S.E.U. (Latimer), [2004] O.G.S.B.A. No. 30 (QL), at para. 65. Faraday 11/6/06 1:37 PM Page 435

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 435

work, and thereby contributed substantially to the deterioration of the grievor’s condition ....” As a result, the Board ordered that the grievor be permitted to apply for long-term disability benefits, and that the employer pay, indefinitely, the difference between those benefits and the grievor’s regular salary. The Board explained that although such an order was unusual, it was necessary to make the grievor whole: In such complex, unusual circumstances, an arbitrator has broad remedial authority and discretion, which is not limited to the benefits found in the col- 2005 CanLIIDocs 206 lective agreement. The function of the remedy in these circumstances is to limit the economic impact on the grievor and put her, as closely as possible, in the position she probably would have been in, but for the employer’s breaches of the collective agreement and post-decision delay in implementation, and the substantial contribution of that delay to the deterioration in her condition. The purpose of the remedy in such circumstances is not to punish the employer, but to provide the outcome that is most just and equitable in all the circumstances.28 The Stina and Latimer decisions indicate that, in some cases, arbitrators are willing to fashion creative remedies that are respon- sive to the systemic causes of discrimination. However, these decisions are the exception, not the rule. Wide-ranging human rights remedies have, to date, been awarded only very rarely in the arbitration context. Consequently, the limits of arbitral jurisdiction have not been fully tested, particularly in the context of systemic, as opposed to individual, complaints. Part of the problem may be that grievances alleging systemic discrimination have been infrequent, and that in many individual grievances, expansive human rights remedies have not been sought. Whatever the reasons, it is simply too early to say how grievance arbitration will evolve in response to its expanded jurisdiction over human rights claims. Parry Sound was decided only three years ago and, while that decision has set in motion a new way of conceptualizing the role of arbitration in enforcing human rights, it will take time for the full implications of that paradigm shift to be felt.

28 Ontario (Ministry of Community Safety & Correctional Services) and O.P.S.E.U. (Latimer), [2005] O.G.S.B.A. No. 38 (QL), at paras. 70, 78. Faraday 11/6/06 1:37 PM Page 436

436 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

4. PUBLIC INTEREST CONSIDERATIONS AND THE INSTITUTIONAL LIMITS OF ARBITRATION

In broadening the scope of labour arbitration, are we asking it to do too much? The response to this question is considered below from two angles. The first perspective considers arbitration’s ability to enhance access to justice for unionized workers. The second assesses the institutional limits of arbitration and the broader public interest in maintaining strong public institutions with a mandate to uphold fundamental public rights. 2005 CanLIIDocs 206 On the one hand, the mainstreaming of human rights into labour arbitration provides an additional and, in many cases, a more accessible forum in which these fundamental rights can be adjudicated.29 This is valuable in itself, because greater access to enforcement and the “threat effect” of ready enforcement should promote compliance with human rights statutes. As Iacobucci J. said in Parry Sound: Granting arbitrators the authority to enforce the substantive rights and obligations of human rights and other employment-related statutes has the additional advantage of bolstering human rights protection.... [G]rievance arbitration has the advantage of both accessibility and expertise. It is a reasonable assumption that the availability of an accessible and inexpensive forum for the resolution of human rights disputes will increase the ability of aggrieved employees to assert their right to equal treatment without discrimination, and that this, in turn, will encourage compliance with the Human Rights Code.30 In addition, the determination of human rights entitlements and remedies in the arbitration forum will inevitably have a significant impact on labour relations culture. It can only be hoped that the enforcement of human rights at arbitration — combined with the development of creative and full human rights remedies — will contribute to the normalization of human rights values in the workplace,

29 See Windsor-Essex Catholic District School Board and O.E.C.T.A. (M. (R.)) (2005), 136 L.A.C. (4th) 373 (Levinson). In accepting jurisdiction over a grievance involving an alleged human rights violation, the arbitrator noted that complainants under the Human Rights Code do not have direct access to a hearing. Rather, complaints must be screened by the Commission, with the result that very few are referred to the Tribunal for hearing. 30 Parry Sound, supra, note 2, at para. 52. Faraday 11/6/06 1:37 PM Page 437

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 437

in the same way that Meiorin caused a significant shift in the attitudes and practices of workplace parties with respect to the duty to accommodate. On the other hand, however, it is crucial to keep in mind the institutional limits of the arbitral forum and the importance of maintaining a properly funded, public human rights tribunal with concurrent jurisdiction over human rights claims. While it is absolutely necessary for arbitration to be able to effectively redress human rights violations, it does not follow that all human rights claims arising in unionized workplaces must or should be heard at arbitration. In 2005 CanLIIDocs 206 this respect, I would like to touch briefly on four key points:

(1) the institutional resources that are available for human rights enforcement; (2) the need for public education and public ownership of human rights; (3) the importance of institutional independence in the arbitral context; and (4) the increased burden on unions to assume a role in enforcing public rights.

(1) Human rights entitlements are fundamental public rights, second in importance only to Charter rights. As a result, we must keep a critical eye on what some have called the “privatization” of human rights enforcement. Is labour arbitration being “publicized,” or are human rights being privatized? The overwhelming majority of human rights complaints in Canada consistently arise in the employment context. In Ontario, more than 78% of complaints filed with the province’s Human Rights Commission relate to discrimination in employment.31 While these figures do not distinguish between unionized and non- unionized employees, the downloading of human rights adjudication onto the arbitration forum clearly represents a substantial transfer of public enforcement obligations. It is important to ensure that the mainstreaming of human rights enforcement is not accompanied by a dismantling of public

31 Ontario Human Rights Commission, Annual Report 2004-2005 (Toronto: Ontario Human Rights Commission, 2005), at pp. 69-72. Faraday 11/6/06 1:37 PM Page 438

438 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

enforcement. It is troubling that the expansion of arbitral jurisdiction over the past 15 years to encompass the application of human rights legislation has taken place at the same time as governments have been persistently underfunding public human rights bodies and ignoring repeated proposals for institutional reform.32 As a policy issue, the expansion of arbitral jurisdiction over human rights cannot be looked at in isolation. It must be examined in tandem with the health and security of human rights commissions and tribunals. The question then becomes not simply whether we are asking labour arbitration to do too much, but whether we are aban- 2005 CanLIIDocs 206 doning public obligations in other spheres which are necessary concurrent supports for unionized workers’ rights. While labour arbitration is promoted as an accessible, efficient and cost-effective forum for human rights adjudication,33 such economic rationales should not be allowed to obscure the political choices that are made about the allocation of public resources, and that can create delays and performance deficiencies which themselves make it necessary to rely on private enforcement mechanisms.34

(2) With the expansion of arbitral jurisdiction, the focus on and protection of human rights as quasi-constitutional rights must not be undermined. These rights should be given public prominence, should be enforced rigorously in accordance with consistent standards, and should be promoted by specialized public institutions, thereby advancing the goal of public education and reinforcement of the human rights values at stake. If human rights enforcement occurs primarily in the arbitral forum, important social issues — their causes and solutions — are reconstituted in highly individualized and

32 See, for example, Ontario Human Rights Code Review Task Force, Achieving Equality (the Cornish Report, 1992); and Canadian Human Rights Act Review Panel, Promoting Equality: A New Vision (the La Forest Report, 2001) (dealing with the federal legislation). In April 2006, the Ontario government introduced legislation which, if passed, will significantly restructure the enforcement of human rights in the province: supra, note 20. 33 Parry Sound, supra, note 2, at paras. 51-53. 34 This is, of course, a concern that arises not only in the context of public rights enforcement but also in policy debates in many spheres, such as health care, housing, child care and education. Faraday 11/6/06 1:37 PM Page 439

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 439

private terms. At arbitration, the issue of discrimination arises most frequently in the form of discrete and isolated grievances — as individual problems requiring individual solutions. While judicial review on the standard of correctness may provide some degree of consistency in arbitrators’ interpretations of substantive human rights,35 the fact remains that arbitration as it is now structured does not yield the same level of public ownership of human rights as adjudication by a public tribunal.

(3) In asking arbitrators to enforce public rights, we must be prag- 2005 CanLIIDocs 206 matic about the institutional limitations of arbitration. It is not a sound policy option to place the full burden of enforcing core public rights on adjudicators who lack the institutional independence and security of tenure of permanent tribunals and courts. This is not by any means to argue that arbitrators are not able to enforce human rights. It does, however, highlight that it is clearly inappropriate to confer exclusive authority over the enforcement of quasi-constitutional rights on decision-makers who lack the hallmarks of judicial independence. This consideration lends support to the argument that we should maintain the system of concurrent jurisdiction between arbitration and public human rights tribunals.

(4) A further consideration is that enforcing human rights in the arbitral forum imposes significant additional challenges and burdens on unions. The cost, both in terms of finances and of resources, falls most heavily on those who need the protection of human rights statutes. Because of its representative nature, a union is obligated to serve collective interests, and its primary loyalty is to the bargaining unit as a whole. Unions have limited financial and other resources, and could never process all grievances to arbitration. They must make decisions about which grievances should proceed, keeping in mind the bargaining unit’s collective interests. How does the expansion in the scope of arbitration affect those decisions? Will unions be exposed to duty of fair representation complaints if they do not take individual human rights and statutory rights grievances to arbitration?

35 See, for example, O.S.S.T.F. v. Upper Canada District School Board (2005), 78 O.R. (3d) 194 (Div. Ct.). Faraday 11/6/06 1:37 PM Page 440

440 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

The scope of protection afforded to unionized employees’ human rights must not be dependent on the size and resources of a particular union. To ensure that the protection of human rights legislation is equally available to all claimants, unions and unionized employees should have the option of seeking a remedy from a public human rights tribunal, where this is necessary. Ultimately, while it is entirely appropriate that human rights issues be addressed at arbitration and that arbitration yield effective remedies for such violations, it is equally necessary to ensure meaningful and effective access to enforcement by public human rights tri- 2005 CanLIIDocs 206 bunals.

Appendix

EXAMPLES OF SYSTEMIC REMEDIES ORDERED BY HUMAN RIGHTS TRIBUNALS36

Remedies that have been granted by statutory human rights tribunals to redress systemic discrimination include orders to do the following:

¥ develop and implement a comprehensive workplace harassment and discrimination policy, which includes a definition of harass- ing behaviours, an internal complaints process, and specific notification that complaints arising under the policy can be taken to the human rights commission;37

36 Excerpted from V. Verma & M. Wente, “Systemic Remedies to Address Institutional Racism: Lessons Learned from McKinnon v. Ontario (Ministry of Correctional Services),” presented at Osgoode Hall Law School’s Second Annual Human Rights Symposium: Focus on Racial Discrimination, 2003. Available online at . 37 Curling v. Torimiro, [2000] O.H.R.B.I.D. No. 16 (QL); Drummond v. Tempo Paint (1999), 33 C.H.R.R. D/184 (Ont. Bd. of Inquiry), at p. D/190; Moffatt v. Kinark Child and Family Services (1999), 33 C.H.R.R. D/184 (Ont. Bd. of Inquiry), at p. D/360; Miller v. Sam’s Pizza House, [1995] N.S.H.R.B.I.D. No. 2 (QL). Faraday 11/6/06 1:37 PM Page 441

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 441

¥ review or amend internal workplace standards or restrictions that adversely impact certain groups and bring the standards into compliance with the human rights code;38 ¥ implement special programs, such as employment equity, or plans to remedy past discrimination as well as to prevent future discrimination;39 ¥ change hiring and/or recruitment practices in order to achieve proportional representation in the organization;40 ¥ create a race relations committee at the workplace (which may include external members) to meet periodically to set objectives 2005 CanLIIDocs 206 and measures for improving race relations;41 ¥ establish an internal review committee to monitor the implementation of orders or a plan which includes periodic reports to senior management;42 ¥ appoint a person with full powers to ensure that the implementation is carried out;43

38 Meiorin, supra, note 8; Morgoch v. Ottawa (City) (No. 2) (1990), 11 C.H.R.R. D/80 (Ont. Bd. of Inquiry), at p. D/93; A. v. Quality Inn (1993), 20 C.H.R.R. D/230 (Ont. Bd. of Inquiry), which included revisions to the harassment policy to clarify when discipline would result and what the discipline would be; Gauthier v. Canada (Canadian Armed Forces), [1989] C.H.R.D. No. 3 (QL); Gohm v. Domtar (1992), 89 D.L.R. (4th) 305 (Ont. Div. Ct.); Green v. Canada (Public Service Commission), [2000] F.C.J. No. 778 (QL) (T.D.). 39 Action Travail, supra, note 22; Green v. Canada (Public Service Commission), supra, note 38; Pitawanakwat v. Canada (Attorney General) (1994), 21 C.H.R.R. D/355 (F.C.T.D.); Gauthier v. Canada (Canadian Armed Forces), supra, note 38. 40 Action Travail, supra, note 22; Pitawanakwat v. Canada (Attorney General), supra; National Capital Alliance on Race Relations v. Canada (Health and Welfare), [1997] C.H.R.D. No. 3 (QL). 41 Dhillon v. F.W. Woolworth Ltd. (1982), 3 C.H.R.R. D/743 (Ont. Bd. of Inquiry); Ahluwalia v. Metropolitan Toronto (Municipality) Commissioners of Police (1983), 4 C.H.R.R. D/1757 (Ont. Bd. of Inquiry). 42 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra, note 40. 43 Ibid. Faraday 11/6/06 1:37 PM Page 442

442 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

¥ require employers and managers to attend a training program specifically designed to enable them to identify and address instances of harassment and inappropriate behaviour;44 ¥ train senior management in methods of mentoring a culturally diverse workforce, and reward good mentoring;45 ¥ amend the management training curriculum to include a requirement to circulate to all employees information on available resources and remedies for those with harassment concerns;46 ¥ conduct annual performance assessments of senior managers, to determine whether full compliance with orders has been 2005 CanLIIDocs 206 achieved;47 ¥ design, and require all employees to attend, education and training programs on discrimination and harassment;48 ¥ post human rights decisions or informational notices about human rights in a place accessible to employees at the workplace, or distribute them;49 ¥ state in all staffing notices, advertisements, job postings, job searches and other staffing communications that the employer is an “equal opportunity employer”;50 ¥ retain a human rights consultant, with expertise in creating an effective grievance procedure and training of employees;51

44 Curling v. Torimiro, supra, note 37, at paras. 16, 70, 81; Chiswell v. Valdi Foods 1987 Inc. (1995), 95 C.L.L.C. ¦230-004 (Ont. Bd. of Inquiry). 45 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra, note 40. 46 Pitawanakwat v. Canada (Attorney General), supra. 47 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra. 48 Green v. Canada (Public Service Commission), supra, at para. 80; Pitawanakwat v. Canada (Attorney General), supra, note 39. 49 Curling v. Torimiro, supra, note 37, at paras. 19, 81; Drummond v. Tempo Paint, supra, note 37, at p. D/190; Espinoza v. Coldmatic Refrigeration of Canada Ltd. (1995), 95 C.L.L.C. ¦230-026 (Ont. Bd. of Inquiry), at p. 145,298; Moffatt v. Kinark Child and Family Services, supra, note 37, at p. D/360 (where the decision was ordered to be distributed province-wide); Miller v. Sam’s Pizza House, supra, note 37. 50 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra, note 40. 51 Espinoza v. Coldmatic Refrigeration of Canada Ltd., supra, note 49. Faraday 11/6/06 1:37 PM Page 443

MAINSTREAMING HUMAN RIGHTS VALUES AND REMEDIES 443

¥ provide individual career plans and training programs for visible minorities.52

The remedial powers of a tribunal may also include appointing a third party to monitor the implementation of orders, to ensure accountability. Such remedies may include orders to:

¥ design education seminars or human rights training under the direction of the human rights commission;53 ¥ report to the race relations division of the human rights commis- 2005 CanLIIDocs 206 sion about steps taken to eradicate inequality;54 ¥ have the human rights commission approve harassment and discrimination policies and monitor their implementation;55 ¥ report to the human rights commission on the results of a review of standards or workplace policies which may adversely impact certain members of a disadvantaged group, and on the development of mechanisms to accommodate individuals;56 ¥ retain a human rights consultant and have the human rights commission monitor the implementation of a grievance procedure;57 ¥ provide information and statistics to the human rights commission on employment practices;58 ¥ provide the human rights commission with the names, addresses, and phone numbers of targeted employees during a period of monitoring, and with reasons why an employee leaves his or her employment during this period;59

52 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra, note 40. 53 Lee v. T.J. Applebee’s Food Conglomeration (1987), 9 C.H.R.R. D/4781 (Ont. Bd. of Inquiry), at p. D/4788; Green v. Canada (Public Service Commission), supra, note 38, at para. 80. 54 Lee v. T.J. Applebee’s Food Conglomeration, supra, note 53, at p. D/4788. 55 Curling v. Torimiro, supra, note 37, at paras. 8, 19; Drummond v. Tempo Paint, supra, note 37, at p. D/190; Moffatt v. Kinark Child and Family Services, supra, note 37. 56 Gohm v. Domtar, supra, note 38. 57 Espinoza v. Coldmatic Refrigeration of Canada Ltd., supra, note 49. 58 Niedzwiecki v. Beneficial Finance System (1982), 3 C.H.R.R. D/1004 (Ont. Bd. of Inquiry); Miller v. Sam’s Pizza House, supra, note 37. 59 Ibid.; Curling v. Torimiro, supra, note 37. Faraday 11/6/06 1:37 PM Page 444

444 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

¥ provide an explanation in cases where visible minority candi- dates have not been selected for vacancies;60 ¥ institute monitoring by the human rights commission for a period of time to ensure that the Tribunal’s decision is implemented;61 ¥ modify employment standards and tests to ensure compliance with the human rights code, to the satisfaction of the tribunal, or provide an “implementation plan” to the tribunal (which may include reports on why existing training programs are ineffective);62 2005 CanLIIDocs 206 ¥ institute “special temporary measures,” which include the appointment of a person with full powers to ensure the implementation of the measures and to carry out other duties, as well as to submit periodic reports to the human rights commission while the special temporary measures are in effect.63

60 National Capital Alliance on Race Relations v. Canada (Health and Welfare), supra, note 40. 61 Miller v. Sam’s Pizza House, supra, note 37. 62 Morgoch v. Ottawa (City) (No. 2), supra, note 38, at p. D/93; Turnbull v. Famous Players Inc. (2001), 40 C.H.R.R. D/333 (Ont. Bd. of Inquiry), at pp. D/364- D365. 63 Action Travail, supra, note 22, at pp. 1126-1127. Gall 11/6/06 1:37 PM Page 445

Determining Human Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction

Peter A. Gall, Q.C., Andrea L. Zwack & Kate Bayne*

Labour arbitration is now the primary forum for the adjudication of human rights claims arising in unionized workplaces. However, reflecting a 2005 CanLIIDocs 206 long-standing tension between the “private” and the “public” conceptions of arbitration, courts and human rights commissions have resisted granting arbitrators exclusive jurisdiction to deal with such claims. In the authors’ view, the system of concurrent jurisdiction now in place creates a serious labour relations problem, because it permits unionized employees to pursue the same claim in multiple forums — through a grievance brought under the collective agreement, and through a complaint filed with the human rights commission. The authors argue, therefore, that the time has come to recognize exclusive arbitral jurisdiction over human rights issues that arise in unionized workplaces. This approach would have a number of advantages, which include avoiding relitigation of identical claims, giving individual complainants access to the more ample resources of their trade union, and allowing the parties an opportunity to resolve the matter internally through the grievance procedure. Above all, the authors contend, the exclusive jurisdiction model would ensure that the specialized expertise of arbitrators in handling workplace disputes is brought to bear on the critical task of harmonizing the application of public law principles with the private law negotiated by the parties. Only where the union is a co-respondent to the claim should a unionized employee be entitled to pursue the matter before the human rights commission.

1. INTRODUCTION

In the 1960s and 70s, considerable debate arose over the remedial authority of labour arbitrators and, specifically, the extent to which they could exercise the jurisdiction to apply equitable doctrines such as rectification, estoppel, or laches. Those who viewed labour arbitrators as mere “readers” of the parties’ collective agreement argued that they had no authority to act beyond the language of the agreement and, therefore, could not grant such equitable

* Heenan Blaikie LLP. Gall 11/6/06 1:37 PM Page 446

446 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

remedies. In response, Paul Weiler criticized courts that held this view as being driven by “the tyranny of the concept ‘inherent jurisdiction,’”1 maintaining that it was no longer legally defensible to deny labour arbitrators a broader set of remedial tools. Over time, this debate subsided and a full panoply of remedies became a standard part of the labour arbitrator’s arsenal — a development which undeniably benefited the process by facilitating the expedient, efficient, and proper resolution of grievances. However, the tension underlying the debate lingered. Commentators continued to question whether labour arbitration, 2005 CanLIIDocs 206 originally a private dispute mechanism centred on contractual interpretation, should be permitted to evolve into a forum for public adjudication in which public policy and public law influenced the decision-making process. Today, it is beyond question that arbitrators have the jurisdiction to decide issues involving the interpretation and application of employment-related statutes, including issues arising under human rights statutes — the focus of this paper. Still, the unresolved dichotomy between the “private” and “public” conceptions has led some to question whether labour arbitrators should have primary, let alone exclusive, jurisdiction over the application of human rights law in unionized workplaces. Some in the human rights community are reluctant to give arbitrators this authority, doubtful that arbitrators are capable of applying human rights principles correctly or appropriately, or convinced that such a development would be contrary to the “public interest” conception of human rights. We believe that such fear is unwarranted. In fact, we believe that labour arbitrators are best able to apply human rights principles in ways that are consistent with the competing interests in workplaces.2

1 P. Weiler, “Remedial Authority of the Labour Arbitrator: Revised Judicial Version” (1974), 52 Can. Bar Rev. 29, at p. 53. 2 D.D. Carter, “The Arbitrator as Human Rights Adjudicator: Has Meiorin Made a Difference?” in K. Whitaker, J. Sack, M. Gunderson & R. Filion, eds., Labour Arbitration Yearbook 2001-2002, vol. I (Toronto: Lancaster House, 2002) 1. Professor Carter, at p. 6, considered the challenge to basic collective agreement values and norms presented by human rights law and opined that “[i]f disruption to the basic value system enshrined in a collective agreement is deemed undue hardship, it will be evident that the traditional paradigm [of labour arbitration] is alive and well.” Gall 11/6/06 1:37 PM Page 447

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 447

In the pages that follow, we will argue that arbitrators should be given the primary and, indeed, exclusive jurisdiction to deal with human rights issues that arise in unionized workplaces, other than in cases where a union is a co-defendant to a human rights claim. While there has been some reluctance to go this far, we believe that the evolution of the role of labour arbitrators, and the growing recognition of their ability to address human rights issues, makes this the logical and necessary next step in the development of human rights adjudication. 2005 CanLIIDocs 206 2. THE TRADITIONAL ROLE OF ARBITRATORS

There are essentially two competing visions of the role of labour arbitrators: one vision that sees them as “private peacekeepers” and interpreters of the collective agreement, and another that views them as public adjudicators whose mandate is more creative and far-reaching.3 The first role, which we will call the conventional or traditional conception, is based on the idea that a labour arbitrator is selected by parties to a private dispute to interpret, apply and give effect to their collective agreement, the arbitrator’s sole source of jurisdiction. Here, the arbitrator’s duty is to respect the integrity of the parties’ bargain. Thus, the arbitrator is required only to determine from the collective agreement the rights and obligations of each party, with no mandate to do anything else.4 Early in the history of labour arbitration, respected academics and arbitrators challenged this conception of the arbitrator as one who merely reads collective agreements. They argued instead for an alternative and expanded role for arbitrators. Bora Laskin went even further, identifying a statutory imperative to move beyond the traditional role. As Weiler observed, referring to Laskin’s historic ruling in Polymer Corp.:5

3 J.E. Dorsey, “The Remedial Role of Arbitrators: Private Peacekeeping to Public Institution,” in W. Kaplan, J. Sack, M. Gunderson & R. Filion, eds., Labour Arbitration Yearbook 1998 (Toronto: Lancaster House, 1998) 29, at pp. 30-31. 4 Supra, note 1, at p. 30. 5 Polymer Corp. Ltd. and Oil, Chemical & Atomic Workers (1959), 10 L.A.C. 51. Gall 11/6/06 1:37 PM Page 448

448 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

In one of the most powerful opinions in the history of Canadian labour arbitration, Professor Bora Laskin, as he then was, took up the challenge and sketched an alternative model of the arbitrator’s function and authority. The key to his approach is his rejection of the absolute, all-embracing reign of the contractual foundation of labour arbitration. It simply is not true that the parties opted for arbitration of grievances as a matter of voluntary choice. Instead, the relevant labour legislation, reflecting a comprehensive collective bargaining policy, directed the parties to use grievance arbitration as a means of securing final and binding settlement of their disputes in the administration of the agreement. This legislative policy was in sharp contrast to the attitude

of common law judges who had rejected the enforceability of the collective 2005 CanLIIDocs 206 agreement in the ordinary courts and told the parties to use their weapon of self-help — be it strike or lockout — to secure their rights under the original bargain. The new collective bargaining policy of the statute seeks to prohibit such economic warfare during the term of an agreement. To this end it directed the parties to provide for a peaceful method of securing an authorita- tive settlement which, in effect, meant grievance arbitration.6 Weiler shared Laskin’s opinion that restricting arbitrators to their traditional role could defeat the statutory directive that disputes be submitted to arbitration for final and binding resolution: If they stuck rigidly to the first model of labour arbitration, arbitrators would have to say that we just read the agreement, when we do we find nothing there about who is to go first, we cannot add such a term, in the absence of immediate agreement the arbitration hearing cannot start, and so everyone just has to go home. That may reflect a literal reading of the agreement, but it mocks the provision which an arbitrator can read in the statute, that there is supposed to be final and binding settlement of these issues in arbitration. As a result, arbitrators have had to develop from the very beginning a common law jurisprudence of the system of arbitration itself. As a consensus has emerged in the course of reported decisions, this becomes the framework within which experienced negotiators write the arbitration clause into their collective bargaining agreements.7 Weiler thus advocated “creative arbitral elaboration” as a necessary concomitant to the fulfillment of an arbitrator’s mandate.8 The arbitrator’s role has now evolved well beyond the conventional conception to that of a public adjudicator expected to apply substantive law and policy in order to resolve the parties’ dispute.

6 Supra, note 2, at p. 31. 7 Ibid., at pp. 33-34. 8 Ibid., at p. 34. Gall 11/6/06 1:37 PM Page 449

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 449

This evolution was facilitated by the emergence and reporting of a body of arbitral jurisprudence that served as a “creative and coherent analytical framework” for arbitrators.9 It has been marked by several key events, from the judicial recognition of an arbitrator’s authority to award damages, to the seminal decision of the Supreme Court of Canada in Weber v. Ontario Hydro10 holding that arbitrators have exclusive jurisdiction over a wide range of employment-related matters, to the increasing use of grievance arbitration to resolve human rights disputes in the unionized sector. It is the Weber decision that presents the most compelling challenge to the role of a labour arbi- 2005 CanLIIDocs 206 trator. No meaningful discussion of that challenge can proceed without an appreciation of the impact of Weber on the settlement of industrial disputes — after all, it was Weber that opened the door to arguments that labour arbitrators should have exclusive jurisdiction over human rights issues arising in a unionized workplace.

3. WEBER AND THE EXCLUSIVE JURISDICTION MODEL

Weber involved a court action by a unionized employee against his employer based on tort and on an alleged breach of his rights under ss. 7 and 8 of the Charter.11 Upholding the employer’s challenge to the authority of a court to hear the claims, the Supreme Court of Canada held that exclusive jurisdiction over all aspects of the dispute lay with a labour arbitrator. McLachin J., as she then was, rejected concurrent or overlapping jurisdiction models as a means of determining jurisdictional contests between labour arbitrators and the courts, favouring instead a model that granted exclusive jurisdiction to labour arbitrators over all issues arising expressly or inferen- tially under the collective agreement. McLachlin J. relied on the following passages from the Court’s earlier decision in St. Anne- Nackawic Pulp and Paper Co. Ltd. v. C.P.U., Local 219:12

9 Supra, note 3, at pp. 32-33. 10 [1995] 2 S.C.R. 929. 11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 12 [1986] 1 S.C.R. 704, cited at supra, note 10, at para. 41. Gall 11/6/06 1:37 PM Page 450

450 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law .... The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which

are in the circumstances a duplicative forum to which the legislature has not 2005 CanLIIDocs 206 assigned these tasks. ... What is left is an attitude of judicial deference to the arbitration process.... It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration . . . is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.13 Exclusive jurisdiction, according to McLachlin J., was thus based on a view of labour arbitration as a complete code governing all workplace differences. Again adverting to earlier caselaw, in which the contention that labour arbitration was unsuited for the liti- gation of Charter claims was considered and rejected, she noted that the exclusive jurisdiction model had a number of advantages: In so far as this argument turns on policy considerations, it is answered by the comments of the majority of this Court in Douglas/Kwantlen Faculty Ass’n v. Douglas College [[1990] 3 S.C.R. 570]. That case, like this, involved a grievance before a labour arbitrator. In that case, as in this, Charter issues were raised. It was argued, inter alia, that a labour arbitration was not the appropriate place to argue Charter issues. After a thorough review of the advantages and disadvantages of having such issues decided before labour tribunals, La Forest J. concluded that while the informal processes of such tribunals might not be entirely suited to dealing with constitutional issues, clear

13 Ibid., at pp. 718-719, 721. Gall 11/6/06 1:37 PM Page 451

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 451

advantages to the practice exist. Citizens are permitted to assert their Charter rights in a prompt, inexpensive, informal way. The parties are not required to duplicate submissions on the case in two different fora, for determination of two different legal issues. A specialized tribunal can quickly sift the facts and compile a record for the reviewing court. And the specialized competence of the tribunal may provide assistance to the reviewing court. Douglas/Kwantlen Faculty Ass’n v. Douglas College also answers the concern of the Court of Appeal below that the Charter takes the issue out of the labour context and puts it in the state context. While the Charter issue may raise broad policy concerns, it is nonetheless a component of the labour dispute, and hence

within the jurisdiction of the labour arbitrator. The existence of broad policy 2005 CanLIIDocs 206 concerns with respect to a given issue cannot preclude the labour arbitrator from deciding all facets of the labour dispute.14 The exclusive arbitral jurisdiction model set out in Weber can be said to flow from the justification offered by Weiler and Laskin for the expansion of an arbitrator’s remedial authority — the statutory directive to arbitrators to render a final and binding resolution of the parties’ dispute. Arming the arbitrator with the authority to decide all matters arising, expressly or otherwise, out of the collective agreement facilitates the efficient and final dispensation of disputes, as opposed to requiring parties to seek redress from the courts. More importantly, it gives full recognition to the nuances of the unionized workplace, and the labour arbitrator’s unique appreciation of them. Labour arbitrators have a specialized understanding of labour relations issues, which is invaluable when adjudicating disputes arising in the workplace. While this expertise originally may have been acquired through the more limited exercise of interpreting and applying collective agreement language, it nevertheless gives arbitrators a sizeable advantage over the courts and other tribunals in resolving workplace disputes of any kind. Moreover, as this expertise evolved, it well surpassed its original confines to encompass the application of policy and substantive legal principles arising out of the parties’ collective agreement. Whether or not it is a logical response to Weiler’s call for creative arbitral elaboration, Weber has taken hold and has led to the conferral of arbitral jurisdiction over a host of matters formerly thought to reside clearly within the mandate of the courts. These include benefit entitlement under policies of insurance, negligence

14 Supra, note 10, at para. 60. Gall 11/6/06 1:37 PM Page 452

452 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

claims, claims for the tort of the infliction of mental suffering, defamation claims, and claims for negligent misrepresentation.15 As noted above, in Weber, the choice of fora was between arbitration and the courts. Where the issue is whether jurisdiction lies with a labour arbitrator or another statutory tribunal, including a human rights commission, the application of Weber has been less clear. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General) (“Morin”),16 a group of Quebec teachers brought a complaint before the province’s Human Rights Commission alleging that the collective agreement negotiated 2005 CanLIIDocs 206 by their unions and the employer discriminated against them on the basis of age. The unions and the employer challenged the Commission’s authority to inquire into the complaint, arguing that the principles set out in Weber supported a finding of exclusive arbitral jurisdiction over the matter. The Supreme Court of Canada dis- agreed, and affirmed the Commission’s jurisdiction. According to the Court, “Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes.”17 Rather, the Court reasoned, “[d]epending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction ....”18 In effect, while affirming that the appropriate venue was to be determined by establishing the “essential nature of the dispute,” the Court declined to recognize exclusive arbitral jurisdiction over the human rights claim, and instead endorsed an overlapping or concurrent jurisdiction approach. The impact of Morin may be restricted, however, by the fact that the Court characterized the dispute before it as one involving

15 For a review of the cases, see M. Lynk & L. Slotnick, “Labour Arbitrators and Human Rights Remedies: The Final Frontier,” in K. Whitaker, J. Sack, M. Gunderson & R. Filion, eds., Labour Arbitration Yearbook 1999-2000, vol. I (Toronto: Lancaster House, 2000) 23, at pp. 32-33. The authors note that the dust stirred up by Weber has settled somewhat and that some newly extended areas of authority are returning to their original judicial or quasi-judicial domains. However, they conclude that labour arbitration will never revert to the “more lin- ear jurisdiction that it possessed prior to the 1990s.” 16 [2004] 2 S.C.R. 185. 17 Ibid., at para. 11. 18 Ibid. Gall 11/6/06 1:37 PM Page 453

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 453

pre-contract negotiations rather than contract interpretation or application, as had been the case in Weber. On this basis, the Court held that the dispute did not fall within the exclusive jurisdiction of a labour arbitrator. Most cases arising in a unionized workplace, including most cases involving human rights issues, involve questions of collective agreement interpretation or application, not contract formation or negotiation. Hence, Morin does not seem to upset Weber’s holding that these cases will attract exclusive arbitral jurisdiction. 2005 CanLIIDocs 206 4. ADJUDICATION OF HUMAN RIGHTS ISSUES — ARBITRATION, HUMAN RIGHTS TRIBUNAL, OR BOTH?

At one time, it was thought that, absent a specific provision in the collective agreement incorporating the tenets of human rights law, an arbitrator lacked jurisdiction to determine the human rights- related aspects of a grievance. However, since the Supreme Court of Canada’s decision in Ontario (Human Rights Commission) v. Etobicoke (Borough),19 it has been clear that all collective agreements are deemed to incorporate, and are subject to, the prohibitions on discrimination contained in applicable human rights legislation. Moreover, the labour relations legislation of several jurisdictions, establishing the powers of labour arbitration boards and the obliga- tory nature of grievance arbitration, provides that arbitrators have the power to interpret and apply employment-related statutes relevant to the matter before them.20 Nevertheless, some arbitrators required an “anchor” or a “land- ing pad” importing substantive human rights law into the collective agreement before accepting jurisdiction to apply a human rights statute. The Supreme Court of Canada conclusively dispensed with any such requirement in Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324,21 where Iacobucci J.

19 [1982] 1 S.C.R. 202. 20 See, for example, s. 89(g) of the Labour Relations Code, R.S.B.C. 1996, c. 244. 21 [2003] 2 S.C.R. 157. See also Canpar Industries v. I.U.O.E., Local 115 (2003), 234 D.L.R. (4th) 221 (B.C.C.A.). Gall 11/6/06 1:37 PM Page 454

454 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

confirmed that every collective agreement incorporates the substantive rights and obligations of human rights legislation, and that arbitrators are empowered and indeed obligated to decide human rights issues arising in the course of the workplace disputes brought before them. The recognition of arbitrators’ authority to interpret and apply human rights legislation, even if it conflicts with the terms of a collective agreement, brought into question the forum in which an employee should pursue a human rights claim. It was (and is) not uncommon for an employee to file both a grievance under the collec- 2005 CanLIIDocs 206 tive agreement (through his or her union) and a human rights complaint to the statutory human rights tribunal. This course of action leads to all of the practical and substantive problems associated with the use of multiple fora: duplication of processes, forum-shopping, lack of certainty of result, the possibility of conflicting findings or outcomes, and the unnecessary expenditure of both public and private resources. Numerous attempts have been made over the years to address these concerns. In British Columbia, some unions and employers endeavoured to restrict the right of employees to proceed in both fora by requiring in their collective agreement that employees elect a single forum in which to proceed with a claim. However, such provisions were held by arbitrators to be inconsistent with the Human Rights Code (and thus unenforceable), as they deprived employees who had filed a human rights complaint of the right to pursue a grievance, and thus visited an adverse employment consequence on such employees for bringing a human rights claim.22 Adjudicators then turned to the judicial doctrines prohibiting duplication of proceedings and forum-shopping in an attempt to restrict the ability of employees to pursue both arbitration and human rights proceedings relating to the same complaint. In Axton v. B.C. Transit,23 for instance, the B.C. Human Rights Council applied the doctrine of issue estoppel to prevent an employee from proceeding with a human rights claim in relation to a matter which had

22 British Columbia and B.C.G.E.U. (Malahias), [1992] B.C.C.A.A.A. No. 36 (QL) (Kelleher); British Columbia and B.C.G.E.U. (Hills), [1995] B.C.C.A.A.A. No. 329 (QL) (Nordlinger). 23 [1996] B.C.C.H.R.D. No. 25 (QL). Gall 11/6/06 1:37 PM Page 455

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 455

already been the subject of arbitration. The key findings in that case were a recognition of the union as an agent of the employee in the arbitration proceeding, and an affirmation that the claim of discrimination had been fully and effectively dealt with in the arbitration proceeding. However, in subsequent cases, this latter point — that the discrimination claim had been fully and effectively dealt with in the arbitration proceeding — proved difficult to establish. Human rights tribunals frequently found that the arbitration proceeding had not provided a sufficient forum for the full adjudication of the human 2005 CanLIIDocs 206 rights issues, thereby defeating arguments based on issue estoppel. In some cases, this conclusion was based upon what was then viewed as a limitation on an arbitrator’s ability to provide the same remedies that are available under the Human Rights Code; in others, it seemed to reflect a discomfort with the less formal or more innovative dispute resolution procedures agreed to by an employer and a union, and the “labour relations” rather than “human rights” orientation of the language employed by arbitrators in their decisions. For example, in Marc v. Fletcher Challenge Canada Ltd.,24 the Human Rights Council allowed a human rights claim to proceed (resulting in a very protracted hearing spanning several years), despite the fact that the same allegations had been dealt with through an arbitration process. In the mid-1990s, the B.C. legislature responded to this situation by enacting provisions in the province’s new Human Rights Code that allowed for deferral of proceedings and/or dismissal of complaints on the basis that the matter has been dealt with in another forum.25 However, because these provisions vested substantial discretion in the Tribunal, the way in which the Tribunal applied them continued to reflect hesitancy to defer to the arbitration process, based on its concern that arbitration might not be an appropriate forum for the adjudication of human rights claims. It was in this context that the Supreme Court of Canada handed down its decision in Weber, holding that arbitrators had exclusive jurisdiction over all matters arising under a collective agreement, including Charter claims. Immediately, a debate began as to whether

24 [1996] B.C.C.H.R.D. No. 24 (QL). 25 Human Rights Code, R.S.B.C. 1996, c. 210, ss. 20 and 22. Gall 11/6/06 1:37 PM Page 456

456 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

or not Weber gave arbitrators exclusive jurisdiction over human rights claims. Some courts and tribunals answered this question in the affir- mative, interpreting Weber as granting exclusive jurisdiction to labour arbitrators over occupational health and safety, employment standards, and human rights legislation.26 Others, however, restricted Weber’s application on the basis that the decision could not have been intended to oust the jurisdiction of statutory human rights tribunals. For example, in Saskatchewan (Human Rights Commission) v. Cadillac Fairview Corp.,27 the Saskatchewan Court of Appeal held 2005 CanLIIDocs 206 that a harassment complaint by a unionized employee was essentially a human rights violation. Since the Human Rights Commission had been established specifically for the purpose of investigating and adjudicating such matters, the Court of Appeal ruled, the dispute fell within the purview of the statutory tribunal. In British Columbia, the application of Weber was addressed by the B.C. Supreme Court in British Columbia v. Tozer.28 In that case, a disabled employee grieved her employer’s denial of a right to recall, arguing that the employer’s duty to accommodate required it to con- vert her from auxiliary to regular employee status. The arbitrator ruled in the employer’s favour on the scope of its duty to accommodate the grievor. The grievor then filed a human rights complaint with the B.C. Council of Human Rights, alleging discrimination. Relying on the doctrine of issue estoppel, the employer contended that the Council was without jurisdiction to entertain the complaint. The Council dismissed the objection, ruling that the issue before it was different from the one before the arbitrator. On judicial review to the province’s Supreme Court, MacKenzie J. rejected the notion that an arbitrator could assert exclusive jurisdiction and reasoned that, as a specialized body, the Council was best suited to hear the discrimination complaint. She was unreceptive to the employer’s concern that a finding of concurrent jurisdiction would lead to forum-shopping.29

26 Ibid. See also Lynk & Slotnick, supra, note 15. 27 (1999), 173 D.L.R. (4th) 609 (Sask. C.A.). 28 (1998), 80 B.C.L.R. (3d) 160 (S.C.). 29 See also Ford Motor Co. of Canada Ltd. v. Ontario (Human Rights Commission) (2001), 209 D.L.R. (4th) 465 (Ont. C.A.). Gall 11/6/06 1:37 PM Page 457

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 457

The B.C. legislature addressed this problem with further amendments to the Human Rights Code in 2002. New provisions reduced the scope of the Tribunal’s discretion to decide whether or not to defer to other proceedings and, in particular, to arbitration proceedings. Sections 25 and 27 of the Code now provide authority to defer or to dismiss a complaint if the “substance of the complaint has been adequately dealt with in another proceeding.” The result of this change has been a significant increase in the number of complaints that are deferred pending the completion of arbitration proceedings, or that are dismissed on the basis that they have been adequately 2005 CanLIIDocs 206 dealt with at arbitration. The B.C. Court of Appeal has also recently made clear that the Human Rights Tribunal does not enjoy any primacy over arbitrators as a preferred forum for adjudicating human rights claims arising in unionized workplaces. In Canpar Industries,30 a disabled employee was dismissed for excessive absenteeism. The employee grieved, alleging that the employer had failed to accommodate his disability, even though the collective agreement made no reference to human rights. At the arbitration hearing, the employer raised a preliminary objection to the arbitrator’s jurisdiction. The employer submitted that, since the collective agreement was silent on human rights, the dispute did not arise out of the collective agreement, but rather under an external statute, the Human Rights Code, and therefore could be determined only by a tribunal constituted under that statute. The arbitrator rejected this argument, finding that he had jurisdiction over the claim. The Court of Appeal upheld the arbitrator’s decision, noting that Parry Sound had confirmed that an anchor in the collective agreement was not a prerequisite to an arbitrator’s jurisdiction over human rights issues. The Court also rejected the employer’s argument that an arbitrator could not assume jurisdiction over a human rights issue until the Human Rights Tribunal had determined that the dispute should be deferred to another proceeding. In resolving the question of which forum had jurisdiction, an arbitrator or the Human Rights Tribunal, the Court in Canpar Industries found that the essence of the dispute was a dismissal from employment, a labour relations matter that properly fell within the

30 Supra, note 21. Gall 11/6/06 1:37 PM Page 458

458 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

jurisdiction of the arbitrator. The Court did not, however, express any opinion as to whether the dispute could also have been brought before the Human Rights Tribunal and, indeed, left open the possibility that a party to the dispute could yet choose to take it to the Tribunal.

5. WHY EXCLUSIVITY?

The system now in place is therefore founded on a concurrency model, which allows employees to file claims in both fora, requiring the employer (in most cases) to apply for deferral and/or dismissal of 2005 CanLIIDocs 206 the human rights complaint on the basis that the matter is being or has been dealt with in arbitration. This can result in protracted litiga- tion and lack of certainty, as can be seen from Canpar Industries. In that case, after the Court of Appeal confirmed the arbitrator’s jurisdiction, the arbitrator dismissed the grievance, holding that the employer could not further accommodate the grievor’s disability without undue hardship. The employee then filed a complaint with the Human Rights Tribunal, which was dismissed by the Tribunal on the basis that the matter had been appropriately dealt with in arbitration. The employee sought judicial review of this decision, which was denied by the B.C. Supreme Court.31 Ultimately, the matter was concluded on May 1, 2006, some five years and five proceedings after the employee’s dismissal. The length of time required to achieve a final resolution, the multiplicity of proceedings, and the expenditure of public and private resources does not benefit any party or the public.32 In our view, the concurrency model, by permitting unionized employees to file human rights complaints rather than pursue the matter through grievance arbitration, creates a serious labour relations problem. In particular, this model allows employees to advance human rights complaints without the involvement, assistance or input of their union, effectively undermining the statutory role of the union as exclusive bargaining agent. In many cases, these complaints involve provisions of the collective agreement which have been the

31 Hines v. Canpar Industries Ltd., [2006] B.C.J. No. 1149 (QL) (S.C.). 32 Philip Bryden reviews many of these concerns in “Principles for Allocating Jurisdiction over Human Rights Claims between Labour Arbitrators and Human Rights Agencies” (CLE Human Rights: Disability Issues, November 1999). Gall 11/6/06 1:37 PM Page 459

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 459

subject of careful consideration and negotiation, and have been entered into as part of a balancing of interests between the employer, the union, and other employees. To allow individual employees to pursue human rights claims in relation to these issues without the involvement or support of the union is inconsistent with the statutory collective bargaining scheme and the union’s role as exclusive agent for employees in the bargaining unit. That is not to say that challenges to collective agreement terms or employer practices on the basis that they are inconsistent with human rights legislation should be forestalled. Where appropriate, 2005 CanLIIDocs 206 such challenges can and should be brought by the union, which has the resources to obtain expert assistance in advancing the claim after a thorough assessment of the merits, and which is able to appreciate and address the impact of the claim on the collective agreement and the interests of the bargaining unit as a whole. Such challenges should be brought through the grievance and arbitration process set out in the collective agreement, which allows the parties to discuss the issues through the grievance procedure, to endeavour to find accommodations or solutions which may resolve the issue to all parties’ satisfaction and, if not, to have the matter adjudicated by an arbitrator with demonstrated expertise in the area and with whom the parties are comfortable. Dealing with challenges to collective agreement provisions or management practices through the arbitration process, rather than through a human rights claim brought by an individual employee against the employer, has the added advantage of ensuring that the result reached in the adjudication of the claim is determinative of the matter for all employees. Where individual employees bring human rights complaints based on the application of collective agreement provisions to themselves, the outcome applies only to that employee’s relationship with the employer. Issue estoppel would not likely preclude a second claim by another employee, as the complainants are not the same parties or their privies. Thus, the employer, the union, or other employees can take the position that a different result can or should follow in relation to a claim by another employee. By contrast, s. 95 of the B.C. Labour Relations Code expressly provides that arbitration awards are binding on the employer and the union that are party to a collective agreement, along with all employees (and all employers where an employer’s Gall 11/6/06 1:37 PM Page 460

460 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

bargaining association is involved) to whom the agreement applies. Only one adjudication process is necessary to decide the substantive issue in relation to all employees (and employers) to whom the collective agreement applies. The availability of two different avenues for unionized employees to raise human rights issues — the arbitration process and the human rights complaint process — calls into question the effect of s. 95 (and similar provisions in labour legislation in other provinces) in preventing relitigation of the same issue by different employees in a bargaining unit. The B.C. Human Rights Tribunal is currently deal- 2005 CanLIIDocs 206 ing with a situation in which an employee of the provincial government is seeking to pursue a human rights complaint on an issue which has already been decided in an arbitration proceeding arising from the grievance of another employee in the bargaining unit. The complainant has taken the position that issue estoppel does not apply because the union represented a different employee in the proceeding leading to the arbitration award. The Tribunal has not yet issued a decision.33 Furthermore, the interests of fair and expeditious resolution of human rights claims are better advanced by having such matters dealt with by labour arbitrators. Generally, arbitration is much more efficient than the human rights system, in which scarce public resources, a backlog of cases, and unrepresented complainants result in a protracted, often multi-year complaint process. The Fletcher Challenge case referred to earlier spanned almost nine years from the filing of the complaint to the Tribunal’s decision on the merits. By contrast, the grievance process under a collective agreement allows the parties the opportunity to attempt to resolve the issue internally, providing a better chance of a resolution which may allow for the maintenance of the employment relationship. If unable to resolve the issue internally, the parties can generally advance the matter to adjudication quickly because of fixed grievance procedure timelines and provisions for expedited arbitration. Moreover, unions have ample resources with which to represent the claimant, often resulting in better representation of the complainant/grievor than may occur in proceedings before human rights

33 Matuszewski v. British Columbia, Tribunal Case No. 119. Gall 11/6/06 1:37 PM Page 461

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 461

tribunals. This in turn translates into more sophisticated argument and analysis of the legal issues by the parties and, consequently, by the adjudicator. And, because the costs of arbitration are borne by the parties to the collective agreement, the proceedings are conducted without cost to the public. Human rights tribunals and commissions are then free to devote their scarce resources to other cases outside of the unionized employment context, in which complainants do not have the same access to representation. Finally, and perhaps most importantly, labour arbitrators have a specialized expertise in workplace issues, including human rights 2005 CanLIIDocs 206 issues, arising in unionized workplaces. Where the dispute involves the application of human rights law in the workplace, an arbitrator’s expertise allows him or her to meld those public law principles with the parties’ private law. No other body is equally equipped to perform this function. And it is a critical function, because if public law principles are applied within the organized workplace context without regard to the private law that governs that workplace, and the competing interests and rights under that law, it could have disastrous consequences on workplace harmony. All of these considerations have led arbitration to become the preferred avenue for adjudication of human rights issues arising in unionized workplaces. Indeed, grievance arbitration is now the primary forum for the adjudication of such disputes.34 However, in our view, the courts, or the legislatures if necessary, should take this preference or primacy to the next level, by conferring exclusive jurisdiction upon labour arbitrators, in accordance with the model adopted in Weber. That is, for all human rights matters arising in the organized workplace, exclusive jurisdiction should presumptively fall to a labour arbitrator. Nothing short of exclusive arbitral jurisdiction properly recognizes the importance of the workplace setting to the resolution of these disputes and the expertise that only arbitrators possess in respect of that setting. This would not necessarily entail a legislative amendment (whether in B.C. or elsewhere), but simply a recognition by the province’s human rights commission and the courts that arbitrators have the skills to decide human rights issues and should do so where these issues arise in a unionized workplace.

34 Lynk & Slotnick, supra, note 15, at pp. 30-31. Gall 11/6/06 1:37 PM Page 462

462 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

In our view, only one exception to this principle of exclusive jurisdiction is necessary: where a trade union is a true co-respondent, along with the employer, to a human rights claim. This situation could arise where a trade union refuses to fulfill an employee’s request to grieve a provision or practice under the collective agreement — not on some arbitrary or bad faith basis, as this could be dealt with by way of a duty of fair representation complaint — but because the union disagrees with the human rights claim and itself seeks to uphold the collective agreement provision or practice in question. An example can be found in a case in B.C. (ultimately 2005 CanLIIDocs 206 resolved without adjudication), in which a provincial government employee challenged certain of the seniority provisions in the collective agreement between the government and the British Columbia Government and Service Employees’ Union (BCGEU) on the basis that they discriminated against female employees. Both the government and the BCGEU were named as respondents to the human rights complaint, and both opposed the discrimination claim. In this type of situation, the employee could not be expected to rely upon the union to advance her claim through the grievance procedure. The union seeks to uphold the collective agreement terms and is thus properly a respondent to the claim, along with the employer. In these circumstances, the only available avenue for the employee to pursue her claim is through the human rights complaint process. In our view, this is the only circumstance warranting deviation from the grievance procedure as the exclusive forum for resolution of unionized workplace disputes, including human rights claims. The primary concern that is expressed about giving arbitrators exclusive jurisdiction over the adjudication of human rights complaints is that arbitrators will not fully appreciate the importance of human rights principles, and will instead subsume these to the interests of employers and unions in maintaining the collective agreement bargain. In our view, such concerns are fully addressed by two factors: first, arbitrators now have extensive experience applying human rights law, and indeed more experience than human rights tribunal members when it comes to human rights in the workplace; and second, arbitral awards remain subject to judicial review, with the courts retaining a supervisory role in respect of the development and application of human rights law. Gall 11/6/06 1:37 PM Page 463

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 463

It is telling that, in the past ten years, the majority of important judicial decisions on substantive human rights law have originated in arbitration proceedings and awards, not in human rights tribunal proceedings. This includes the Supreme Court of Canada’s seminal decision in British Columbia (Public Service Relations Commission) v. B.C.G.E.U. (“Meiorin”).35 Recently, in British Columbia, this also includes decisions on such issues as family status,36 discipline for drug- and alcohol-related misconduct,37 and post-LTD return-to- work programs.38 This trend reflects not only the preference of parties to take important cases to labour arbitrators rather than to human 2005 CanLIIDocs 206 rights tribunals, but also the enhanced resources of trade unions, in contrast to those of individual complainants, in advancing and fully arguing these complex issues. Some commentators have expressed concern that requiring arbitrators to adjudicate public law concepts such as human rights will undermine labour arbitration as a mechanism for effectively resolving issues arising out of collectively bargained agreements. Arbitrator Picher wrote a scathing critique of Weber, in which he cautioned that “[e]mployers, employees and trade unions who see in Weber an elevation of arbitration that will enhance collective bargaining would do well to think again.”39 He explained the crux of his concern as follows: There is sufficient court and arbitral jurisprudence in the wake of Weber to justify concerns that labour arbitration is being forcibly pushed in a direction of indifference to the ongoing relationships of employers and unions. If Weber is broadly interpreted, the focus of arbitrators could shift from their traditional role of facilitating the smooth functioning of collective agreements to vindicating individual rights at the expense of long-term collective bargaining

35 (1999), 176 D.L.R. (4th) 1. 36 H.S.A.B.C. v. Campbell River & North Island Transition Society (2004), 240 D.L.R. (4th) 479 (B.C.C.A.). 37 Kemess Mines Ltd. v. I.U.O.E., Local 115 (2006), 264 D.L.R. (4th) 495 (B.C.C.A.); Kootenay Boundary Regional Hospital v. B.C.N.U. (Bergen) (2006), 264 D.L.R. (4th) 478 (B.C.C.A.). 38 B.C.G.E.U. v. British Columbia (Public Service Employee Relations Commission) (2005), 251 D.L.R. (4th) 73 (B.C.C.A.). 39 M. Picher, “Defining the Scope of Arbitration: The Impact of Weber,” in K. Whitaker, J. Sack. M. Gunderson & R. Filion, eds., Labour Arbitration Yearbook 1999-2000, vol. I (Toronto: Lancaster House, 2000) 99, at p. 146. Gall 11/6/06 1:37 PM Page 464

464 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

relationships. When the main subject-matter of labour arbitration expands from disputes about overtime provisions, call-in pay and statutory holidays to include bitter personal conflicts about negligence, defamation and other emotion-charged individual rights, arbitration itself may come to be perceived as an instrument that promotes conflict and human discord, in ways that do not ultimately serve the best long-term interests of employers, unions or employees.40 As Arbitrator Picher noted, Weber made it clear that labour arbitration is no longer strictly about the parties’ rights and obligations as

contained in their collective agreement. As arbitrators stray further 2005 CanLIIDocs 206 from their circumscribed role as private peacekeepers, and assume greater responsibility for the interpretation and application of public statutes, including the Charter, the arbitration process will move away from its foundation in the collective agreement and the parties’ ongoing relationship, becoming controlled more by the substantive principles of law, and less by the parties. In the words of Harry Arthurs, the result is that . . . the industrial community is less and less the producer of its own rules, more and more the consumer of those devised and dispensed by arbitrators. And arbitrators are less and less the servants of the parties and more and more the oracles of a brooding legal omnipresence.41 This is a valid concern. As public law plays a greater role in the resolution of workplace disputes, there is a real risk that the focus of these disputes will shift away from the ongoing relationship between the parties. However, unionized workplaces are not immune from public laws, and these public laws must be enforced. The question is, by whom will they be enforced — by a tribunal that does not have any expertise about workplaces, or by a tribunal that does? We believe that it should be the latter. Arbitrators have the expert understanding that is required to ensure that human rights principles are applied in a way that makes sense in the workplace, in a way which appropriately balances all interests, including the rights of employees and employers under the parties’ private law. We recognize that this

40 Ibid., at pp. 146-147. 41 H.W. Arthurs, “Future Directions for Labour Arbitration and for the Academy,” in B.D. Dennis & G.G. Somers, eds., Arbitration 1977: Proceedings of the Thirteenth Annual Meeting, National Academy of Arbitrators (Washington: Bureau of National Affairs, 1978) 222, at p. 227. Gall 11/6/06 1:37 PM Page 465

HUMAN RIGHTS ISSUES IN THE UNIONIZED WORKPLACE 465

presents a challenge to arbitrators. They must contextualize the application of human rights law within the industrial relations setting in which the dispute arises, so that the adjudication of human rights can to the greatest extent possible be reconciled with the values and norms that are enshrined in the collective agreement. There can be no doubt that with the adjudication of human rights disputes, the bargained language of the parties is no longer the arbitrator’s exclusive or, in some cases, even paramount consideration. A reasonable accommodation may well result in the accommodated employee’s being exempted from certain organizational norms 2005 CanLIIDocs 206 which are, because of the overriding nature of human rights considerations, not binding on the arbitrator. Consider an accommodation that provides an employee with a more desirable work schedule or assignment than is otherwise available under the collective agreement. The accommodation not only disrupts the parties’ bargain, but may cause workplace unrest among employees who remain governed by the collective agreement. It is true that the employer need only accommodate to the point of “undue hardship”; however, disruption to the parties’ collective agreement does not generally equate to undue hardship. Furthermore, to the extent that any such disruption can be measured by workplace morale, the Court in Meiorin held that the morale of other employees (or the impact of the accommodation on other employees) will not usually be sufficient to establish undue hardship. This poses a considerable challenge to unions in circumstances where the majority of employees could be detrimentally affected by a proposed accommodation and the accommodation could have serious organizational consequences. The result can be a disjunction between human rights principles and theory, and the realities and values of the workplace. This disjunction can be overcome or at least minimized if adjudicators, in their assessment of undue hardship, are able to distill those interests which are of sufficient importance that subsuming them to accommodation of an individual employee amounts to undue hardship, or to articulate the reasons why they do not. Labour arbitrators are clearly in the best position to do this, because their very role provides them with the requisite expertise about workplaces and the operation of collective agreements. This does not mean that human rights complainants are short- changed by submitting their complaints to the arbitral forum. On the Gall 11/6/06 1:37 PM Page 466

466 CDN. LABOUR & EMPLOYMENT LAW JOURNAL [12 C.L.E.L.J.]

contrary, a review of arbitral awards over the past several years demonstrates that arbitrators are no less vigilant than human rights tribunals in holding unions and employers to their duty of accommodation. However, arbitrators generally approach the issue in a manner which recognizes the competing interests and values at play, and articulate the scope of the duty to accommodate in a manner that acknowledges and strives to harmonize those competing principles. In AirBC Ltd. and C.A.L.D.A.,42 for example, Arbitrator McPhillips held that the duty to accommodate a disabled employee does not extinguish the doctrine of non-culpable absenteeism. Rather, the doc- 2005 CanLIIDocs 206 trine continues to apply, subject to an employer’s obligation to accommodate an employee’s disability, if that is reasonably possible. Other arbitral awards, in British Columbia and elsewhere, over the past decade likewise reflect a firm grasp of human rights principles and substantive law, as applied within the unionized workplace context.43

6. CONCLUSION

Arbitrators are clearly best situated to deal with human rights matters arising in the organized workplace. They have a unique appreciation of workplaces and an expertise regarding workplace issues, including those involving human rights law and principles. For this reason, as well as for reasons of cost, expediency, certainty, avoidance of duplication of processes, and consistency with labour law principles providing for the exclusive bargaining agency of trade unions, we believe that it is time to confer upon labour arbitrators exclusive jurisdiction to deal with human rights issues arising in unionized workplaces.

42 (1995), 50 L.A.C. (4th) 93. 43 See, for example, Norske Canada Ltd. and Pulp, Paper & Woodworkers of Canada, Local 2, [2001] B.C.C.A.A.A. No. 339 (QL) (Munroe) (early retirement benefits and disability); British Columbia and B.C.G.E.U. (Sheshka) (2002), 109 L.A.C. (4th) 1 (Lanyon) (accrual of seniority while on LTD); Weyerhaeuser and I.W.A., [2004] B.C.C.A.A.A. No. 164 (QL) (Taylor) (drug and alcohol policy); Kelowna (City) and C.U.P.E., Local 338, [2003] B.C.C.A.A.A. No. 272 (QL) (Lanyon) (accommodation outside the bargaining unit).