Industrial Relations in Canada Presentation by Ginette Brazeau, Director of Legislation, Research and Policy Federal Mediation and Conciliation Service Labour Program Human Resources and Social Development Canada Presentation made at the Australian International Dispute Resolution Conference, October 2007

Constitutional Jurisdiction Canada has ten provinces and three territories The Canadian Constitution assigns jurisdiction for certain industries exclusively to the federal government and others to the provincial governments. Constitution 1867 ― division of powers. Labour relations is viewed as an aspect of property and civil rights – thus primarily in PJ – rather than an aspect of trade and commerce, as in the US Assigns jurisdiction by sector of economy eg. major infrastructure industries such as transportation, telecommunications and banking are in FJ SECRET

The Legal Framework The Canadian collective bargaining system is HIGHLY DECENTRALIZED, but federal and provincial labour relations legislation share common characteristics. They all: Establish certification procedures for a union to obtain recognition as the representative of employees in a particular workplace Set the minimum duration for a collective agreement Establish procedures for legal strikes and lockouts Establish ways of resolving disputes during collective bargaining (conciliation and mediation) and during the life of a collective agreement (grievance and arbitration procedure) Define unfair labour practices Create a labour relations board, which has quasi-judicial status, to interpret the law and prescribe remedies for violations Rights disputes vs. interest disputes. Although 14 jurisdictions, labour laws harmonized ― consistency in regulatory approach, and labour policy. SECRET

The Legal Framework (cont’d) In most Canadian jurisdictions, separate labour relations acts govern public sector employees Some jurisdictions have separate acts for para-public or quasi-public sector employees (employees who work for government-funded organizations, but don’t directly work for the government) Some jurisdictions have additional labour relations legislation that applies to particular occupations or industries (e.g. construction). This legislation usually addresses specific conditions in occupations or industries that would not be adequately covered under general labour legislation e.g. Federal Public Service. e.g. education, health care. e.g. construction, fisheries (NL). SECRET

The Federal Jurisdiction There are a number of federal labour relations statutes: The Canada Labour Code regulates the federal PRIVATE sector (inter-provincial transport (ground, air, marine and rail), telecommunications, broadcasting, banking, Federal crown corporations such as Canada Post, National Museums, and Industries declared by Parliament to be for the general advantage of Canada or two or more provinces (e.g. Nuclear, Grain); The Public Service Labour Relations Act regulates the bargaining relationship between the federal government and its own employees; The Parliamentary Employment and Staff Relations Act apples to employees of Parliament; and The Status of the Artist Act gives collective bargaining rights to self-employed entrepreneurs in the cultural sector. Constitutional Act 1867: 91(2) Trade and Commerce = federal Others Banking 91(15) Postal Service 91(5) Navigation and Shipping 91(10) 92(13) Property and Civil Rights = provincial Two Key Decisions of the Supreme Court of Canada: Legislation relating to the employer and employee relationship is, prima facie, within the class of subject of "Property and civil rights within the province" and hence within the exclusive jurisdiction of the Provinces under s. 92(13) of the British North America Act, 1867: Toronto Electric Com'rs v. Snider, [1925] 2 D.L.R. 5. This jurisdiction of Parliament to so legislate includes those situations in which labour and labour relations are (a) an integral part of or necessarily incidental to the headings enumerated under s. 91; (b) in respect to Dominion Government employees; (c) in respect to works and undertakings under ss. 91(29) and 92(10); (d) in respect of works, undertakings or businesses in Canada but outside of any province. Reference re Industrial Relations and Disputes Investigation Act, etc., [1955] S.C.R. 529, SECRET

The Federal Jurisdiction (cont’d) About 1.3 million employees are subject to federal jurisdiction legislation Approximately 40% of them are unionized Nearly 1,500 collective agreements are negotiated under the Canada Labour Code - between 500 and 600 each year Approximately 10% of Canadian labour force. Sectors that are heavily unionized: Railways; Airlines; Telecommunications. 3 year collective agreement terms are common – not uncommon to see even longer term agreements SECRET

Principles of Canadian Labour Relations Found in the Preamble Canada Labour Code, Part I: Canada is signatory to ILO convention No. 87 concerning Freedom of Association and Protection of Right to Organize; promotes common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes; recognizes and supports freedom of association and free collective bargaining as the bases for the determination of good working conditions and sound labour-management relations; deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress for all. SECRET

The Canadian Model Main aspects: A certified bargaining unit is a group of workers, generally in a single workplace, considered appropriate for collective bargaining (community of interest). The certified bargaining agent (union) has the exclusive right to bargain on behalf of all of the employees in the bargaining unit. The certified bargaining agent is entitled to collect union dues through a “check-off” system (“Rand Formula”) The certified bargaining agent is subject to a duty of fair representation. Certification: Card based; Secret ballot vote. Labour Board certifies or in some jurisdictions voluntarily recognition is accepted. All workers in the bargaining unit are covered by the certification Rand Formula applies May have more than 1 bargaining unit in same workplace – Board determination based on community of interest and labour relations history and stability. Exception to Decentralization: Construction industry (under provincial jurisdiction) is more centralized, i.e. province wide negotiations based on trade, e.g. plumbers. SECRET

The Canadian Model (cont’d) Collective bargaining in Canada is generally decentralized: in most cases, bargaining takes place at the plant or enterprise level, between an employer and a certified bargaining unit Collective agreements take the form of fixed term, legally binding contracts prescribing wages, hours of work and other working conditions, as well as matters such as union recognition, job security and work rules. SECRET

The Canadian Model (cont’d) The parties have the duty to bargain in good faith and make every reasonable effort to reach a collective agreement Strikes and lockouts are illegal during the term of the collective agreement Some jurisdictions, such as the federal jurisdiction, provide for mandatory conciliation before the parties acquire the right to strike or lockout SECRET

Union Recognition requires 50% +1 majority Employees in a workplace, by majority support, may choose to be represented by a trade union. Certification of bargaining agent is a democratic process: requires 50% +1 majority evidence can be based on signed membership cards secret ballot vote can be ordered by labour board Unions and bargaining units are independent and free from employer interference. SECRET

Union Recognition (cont’d) If a majority of employees are dissatisfied with their union representation, they may select another union to act on their behalf or they may apply to decertify their bargaining agent Labour Board is empowered to hear and decide applications for certification and decertification of bargaining agents and complaints against the bargaining agent made by employees. SECRET

Bargaining Rights and Obligations Once a union has been certified, either party can give a “Notice to Bargain” - both employer and union are required to bargain in good faith and make every reasonable effort to negotiate a collective agreement During bargaining, the employer cannot unilaterally change any of the employees’ terms and conditions of employment Complaints of unfair labour practices (eg. failure to bargain) can be made to the labour board, which has the power to order appropriate remedies Neutral third party assistance (conciliation/mediation) is provided free of charge by the government to assist the parties in their negotiations (public interest in the peaceful resolution of collective bargaining disputes). SECRET

Strikes and Lockouts Strikes/lockouts are not permitted until certain requirements have been met: Mandatory conciliation process has been completed Union has obtained a positive strike vote from its members The party initiating the work stoppage has given the other party and the Minister of Labour 72 hours notice If there are services affected that are essential to public health or safety, the parties must have reached agreement as to how those services will be provided during the work stoppage. Note legal obligation: during a strike or lockout, the union, the employer and the employees must continue to supply services, operate facilities or produce goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public. SECRET

The Collective Agreement The goal of bargaining is to achieve a Collective Agreement: Legally-binding contract establishing terms and conditions of employment, including wages, premiums, benefits and other monetary terms; and work rules, including hours of work, seniority, promotion etc. Minimum duration of 1 year (but longer collective agreements are more typical) Strikes and lockouts are illegal during the term of the agreement Any disputes over the application or interpretation of the collective agreement must be submitted to grievance arbitration SECRET

IR Indicators Across Canada Canada’s unionization rate today is approximately 31.8%, more than twice that of the United States (13.8%). Recent public opinion polls indicate that a majority of Canadian workers believe unions are worthwhile (Vector Research 2003). Since 1975, there has been a significant drop in both the number of work stoppages and the person-days not worked, indicating stability in the labour-management relations climate. Since 1995, average duration of collective agreements has increased from 24 to 38 months, reducing the number of bargaining sessions & thus reducing the potential for work stoppages. SECRET

Federal Mediation and Conciliation Service Our Mission: The Federal Mediation and Conciliation Service (FMCS) is responsible for providing dispute resolution and dispute prevention assistance to trade unions and employers under the jurisdiction of the Canada Labour Code. SECRET

Federal Mediation and Conciliation Service FMCS services: Conciliation and mediation assistance to parties engaged in collective bargaining Preventive mediation and grievance mediation services aimed at resolving differences and improving industrial relations during the closed period of a collective agreement Appointment of grievance arbitrators The Labour-Management Partnerships Program, which provides seed funding for innovative projects designed to improve labour-management relationships Research to aid in the development and implementation of industrial relations policy SECRET

FMCS Conciliation Process Mandatory before parties can strike or lockout during a collective bargaining dispute Government-appointed neutral assigned to meet with the employer and union to help resolve their differences and achieve a collective agreement Government conciliators and mediators have considerable skill and expertise in resolving labour disputes – are located in 5 regional offices across Canada FMCS settles over 90% of collective bargaining disputes without a work stoppage SECRET

FMCS Preventive Mediation Program Relationship-by-Objectives (RBO) Committee Effectiveness (CET) Negotiation Skills training Collaborative Problem-Solving Facilitation Grievance Mediation Designing Grievance Resolution Processes Joint Planning for Organizational Change Creating Respectful Workplaces SECRET

Summary Canadian free market economy The Canadian IR system is a structured framework for interaction between employers and unions that works The collective bargaining process has a negative economic impact if bargaining fails, however these same economic pressures strongly influence the parties to reach a settlement Positive labour-management relations and cooperative workplaces contribute to higher productivity Government, through the FMCS, plays a key role in promoting effective workplace relations SECRET