Thursday, February 9, 2017
SK LRB on Supervisory Employees in Existing Bargaining Units by Greg
In Saskatoon Public Library Board v Canadian Union of Public Employees, Local No. 2669, LRB File No. 135-16 (PDF) ("SPL"), the Saskatchewan Labour Relations Board issued a key precedent in the interpretation and administration of the Saskatchewan Employment Act ("SEA") provisions respecting supervisory employees.
Section 6-11 of the SEA provides in relevant part as follows:
6‑11(1) If a union applies for certification as the bargaining agent for a unit or a portion of a bargaining unit or to move a portion of one bargaining unit to another bargaining unit, the board shall determine:
(a) if the unit of employees is appropriate for collective bargaining; or
(b) in the case of an application to move a portion of one bargaining unit to another bargaining unit, if the portion of the unit should be moved.
(2) In making the determination required pursuant to subsection (1), the board may include or exclude persons in the unit proposed by the union.
(3) Subject to subsections (4) to (6), the board shall not include in a bargaining unit any supervisory employees.
(4) Subsection (3) does not apply if:
(a) the employer and union make an irrevocable election to allow the supervisory employees to be in the bargaining unit; or
(b) the bargaining unit determined by the board is a bargaining unit comprised of supervisory employees.
(5) An employee who is or may become a supervisory employee:
(a) continues to be a member of a bargaining unit until excluded by the board or an agreement between the employer and the union; and
(b) is entitled to all the rights and shall fulfil all of the responsibilities of a member of the bargaining unit.
(6) Subsections (3) to (5) apply only on and after two years after the date on which subsection (3) comes into force.
The focus of section 6-11 is on the determination of an appropriate bargaining unit in the case of a union application for new bargaining rights (s. 6-9) or a change in bargaining rights (s. 6-10).
However, there was previously some uncertainty as to whether subsection 6-11(3) might also be applied to allow employers to eject supervisory employees from existing bargaining units. Based on the risk of that interpretation (along with the prospect of future applications for changes in bargaining rights), some unions and employers have signed irrevocable elections allowing supervisory employees to remain in their existing bargaining units.
SPL was designated as the "test case" to determine how the Board would apply subsection 6-11(3) in the case of an employer application to amend the scope of a bargaining unit. In addressing the preliminary question of statutory interpretation, Chairperson Love held as follows at para. 27:
(T)his Board is of the view that the ordinary and grammatical meaning of subsection 6-11(3) is that it applies only in the context of an initial application by a trade union to represent a group of employees or a part of such a group.
Chairperson Love also firmly rejected the employer's argument that s. 6-11(3) should be interpreted to allow employers to strip away supervisory employees' collective bargaining rights with no input by, nor protection for, the affected employees. See in particular paras. 31-37.
The remaining interpretive issues surrounding subsection 6-11(3) will now arise only in the case of union applications for new or changed bargaining rights. It remains to be seen whether s. 6-11(3) will pass constitutional muster in some such cases, particularly where its effect could be to substantially preclude supervisory employees from exercising their Charter freedom of association.
However, the Board (through its decision in SPL), the provincial government (through the growing list of occupation-based exemptions under The Labour Relations (Supervisory Employees) Regulations), and many unions and employers (through their irrevocable elections) have all made clear that the exclusion of supervisory employees from standard bargaining units is unworkable and contrary to the purposes of the SEA in a large number of cases. Under those circumstances, the question arises whether the supervisory employee provisions of the SEA serve any useful purpose at all.
Thursday, February 2, 2017
Statutory Criteria in Interest Arbitration by Greg
At this year's Gerrand Rath Johnson Labour Law Conference, I had the opportunity to present on interest arbitration - which may become more important to Saskatchewan unions now that it represents the statutory alternative to job action in workplaces which fall under the essential services regime in Part VII of the Saskatchewan Employment Act ("SEA").
The general principle applied by interest arbitrators is the "replication principle", which was set out by Arbitrator Hope in Beacon Hill Lodges of Canada v. H.E.U., 1985 CarswellBC 2912 (Hope) at para. 56-57:
(A) board of arbitration should attempt to replicate the result which would have occurred if the collective bargaining process had not been interrupted by arbitration…
(A) board of arbitration is not expected to embark upon a subjective or speculative process for divining what might have happened if collective bargaining had run its full course. Arbitrators are expected to achieve replication through an analysis of objective data from which conclusions are drawn with respect to the terms and conditions of employment prevailing in the relevant labour market for work similar to the work in issue.
Generally, interest arbitrators have great flexibility in determining which factors to apply as they set the terms of a new collective agreement through interest arbitration.
However, the SEA's alternative to full collective bargaining includes statutory criteria required to be considered by the arbitration or arbitration board:
7‑21 In making an award pursuant to this Division, a mediation‑arbitration board or single mediator‑arbitrator:
(a) shall consider, for the period with respect to which the collective agreement between the public employer and the union will be in force, the following:
(i) wages and benefits in private and public, and unionized and non‑unionized, employment;
(ii) the continuity and stability of private and public employment, including:
(A) employment levels and incidence of layoffs;
(B) incidence of employment at less than normal working hours; and
(C) opportunity for employment;
(iii) the general economic conditions in Saskatchewan; and
(b) may consider, for the period with respect to which the collective agreement between the public employer and union will be in force, the following:
(i) the terms and conditions of employment in similar occupations outside the public employer’s employment taking into account any geographic, industrial or other variations that the mediation‑arbitration board or single mediator‑arbitrator considers relevant;
(ii) the need to maintain appropriate relationships in terms and conditions of employment between different classification levels within an occupation and between occupations in the public employer’s employment;
(iii) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered;
(iv) any other factor that the mediation‑arbitration board or single mediator‑arbitrator considers relevant to the matters in dispute.
See also s. 6-90(3), setting out the same criteria with respect to firefighters.
On a first review, it is not clear why an interest arbitrator would be required to take into account wages and benefits in non-union and private-sector workplaces which are arguably not comparable to the one at issue, particularly since it would seemingly mandate consideration of what are generally inferior terms and conditions. (Note that the criteria apply to workplaces which are offering public services - which is of course the rationale for offering interest arbitration as an alternative to job action and free collective bargaining.)
Similar criteria in Alberta have been held to be of relatively little effect in their impact on the role of an interest arbitrator. Milvain J. described how arbitrators have applied Alberta’s statutory criteria, cited with approval in City of Medicine Hat v Medicine Hat Fire Fighters Association, IAFF Local 263, 2014 CanLII 50000 (AB GAA) (Sims):
(I)t is only consideration that is required not that slavish acceptance be given. This seems to be a sensible thing to do because all of the matters referred to may not apply to every case, and those that do apply to a case may do so in greater or lesser degree depending on the circumstances surrounding the case. In the final analysis, it is up to the alerted arbitrator to use discretion as to how the suggested matters shall be applied in light of all considerations which must be made in order that a fair, reasonable and just conclusion may be reached within the law.
However, the lone reported Saskatchewan case interpreting the statutory criteria applied them as having a "softening effect" on the wage increase which would otherwise have been awarded: Yorkton (City) v Yorkton Professional Fire Fighters’ Association, International Association of Fire Fighters, Local No. 1527, 2014 CanLII 86899 (SK LA) (Ish) at para. 59.
It remains to be seen whether arbitrators operating under these criteria will ultimately follow their Alberta counterparts in treating the statutory criteria as merely a statement of the normal principles of interest arbitration, or whether they will use the terms of the SEA to substantially limit public-sector compensation due to factors originating far outside the workplace. And if both unions and employers recognize the dangers of having their collective bargaining agreements governed by extraneous considerations, they may wish to agree on their own interest arbitration processes rather than following the ones set out under the SEA.
Wednesday, November 18, 2015
Is Everything An Essential Service? by Greg
Saskatchewan's Bill 183 has been hastily passed during the fall legislative session to put some essential services law in place before the January 30, 2016 deadline set by the Supreme Court of Canada's decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4. (See the bill here (PDF), and the committee explanation here (PDF).) And there are some aspects which represent major improvements over both the unconstitutional Public Service Essential Services Act, and the first attempt at a rewrite.
But there are also some aspects of Bill 183 which look rather puzzling - starting with an issue which seems even more problematic than the terms of the PSESA.
The PSESA provision which allowed for a dubiously broad definition of a "public employer" who could dictate which employees were permitted to strike was mentioned in Ball J.'s trial decision in Saskatchewan v. Saskatchewan Federation of Labour, 2012 SKQB 62 at para. 184-185:
Some of the public employers listed in s. 2(i) of the PSES Act employ a high percentage of essential service workers. Examples include Boards of Police Commissioners, Regional Health Authorities and affiliates, and the Saskatchewan Cancer Agency. Some of the public employers, such as municipalities, have proportionately fewer employees delivering essential services. There is no evidence that some of the public employers employ any employees who are engaged in the delivery of essential services. Examples include SIAST and Saskatchewan Gaming Corporation, a Crown corporation that owns and operates Casinos in Regina and Moose Jaw.
Nevertheless, all of the public employers, from Boards of Police Commissioners acting under The Police Act 1990, to resort villages as defined in The Municipalities Act, have the powers set out under s. 9. of the PSES Act.
Amazingly, Bill 183 goes several steps further in loosening the definitions around essential services. It does not define an "essential service" at all (leaving that assessment to be dealt with through the new and complex essential services process), and defines a "public employer" to be any employer which provides an essential service. So in theory, it applies equally whether an employer is private or public - or even engaged in the delivery of public services at all.
Now, the legislature's intent in Bill 183 is not to render every service provided by any employer an "essential service". In fact, Minister Morgan argued in committee that a statutory definition isn't needed in light of the one approved by the Supreme Court in SFL which is intended to apply (p. 1168):
The definition that’s in the Supreme Court, whether we include it in the legislation or not, is binding on the parties. It’s pretty clear that it’s safety and security are the items that are there. It does not go to economic hardship. It does not go to protection of plant and equipment...
(Bill) 128 may arguably have had the ability for a broader interpretation, but 183 is post the Supreme Court decision and, I think, the safety and security and court services judges (sic).
Unlike PSESA, Bill 183 provides for a determination as to the existence of essential services to be made by an independent third party, not by the employer. But that doesn't mean an employer won't be able to substantially alter the bargaining process by making a claim that it provides essential services.
Where either a union or an employer gives notice that it considers some of the employer's services to be essential, both parties are forced to proceed through the essential services process - including collective bargaining as to the terms of an essential services agreement, then a decision by an essential services tribunal which may take up to 81 days to convene, hear and decide the issue. And this is on top of a mandatory period of mediation or conciliation which may take up to 60 days under the normal rules governing collective bargaining.
In other words, a union which has a strike mandate may be prevented from actually taking job action for a period of upwards of four months after bargaining reaches an impasse. And that may make a substantial difference both in the union's ability to maintain support for the strike, and in the type of economic pressure it can bring to bear on the employer. (A Mall Santas Union may be able to push for some meaningful demands by walking off the job in December; it figures to have much more difficulty if an employer can unilaterally push any strike window into February by dragging out conciliation processes and tribunal hearings.)
It seems that Bill 183 is based on the assumption that nobody will think to make frivolous claims about essential services in workplaces which obviously don't provide them. But given how some employers saw the PSESA as an invitation to attack union bargaining positions, it's hard to see that assumption as a reasonable one even in the public sector - and there's all the more reason for concern that private parties who weren't involved in the development of Bill 183 may suffer from the abuse of its terms.
Monday, June 1, 2015
Intrusion Upon Seclusion in Saskatchewan by Greg
This spring, I had the opportunity to present on civil liability for privacy breaches at the Law Society of Saskatchewan's update on privacy and access law. And I'll follow up by expanding on a few of the noteworthy points for those interested in privacy in Saskatchewan.
To start with, let's take a look at how the tort of intrusion upon seclusion (discussed by the Ontario Court of Appeal in Jones v. Tsige, 2012 ONCA 32) may - or may not - apply in Saskatchewan.
The relationship between provincial privacy statutes such as the Privacy Act, RSS 1978, c P-24 (“Privacy Act”) and the common law related to privacy has been considered a number of times in British Columbia, where courts have regularly concluded that the statutory tort of violation of privacy precludes the development of any parallel common-law torts. See e.g. Mohl v. University of British Columbia, 2009 BCCA 249 at para. 13. This analysis has been repeated even as the tort of intrusion upon seclusion has developed in provinces which lack a statutory tort: see Ari v. Insurance Corporation of British Columbia, 2013 BCSC 1308 at para. 64-65, and Foote v. Canada (Attorney General), 2015 BCSC 849 at para. 116.
However, the British Columbia reasoning was rejected at least at the pleadings stage in Hynes v. Western Regional Integrated Health Authority, 2014 CanLII 67125 (NL SCTD) ("Hynes") at para. 25. In Hynes, Goodridge J. held that since the Privacy Act contained an explicit declaration that it operated without derogating from a right of action or remedy otherwise available, it was at least arguable that the tort of intrusion upon seclusion could operate concurrently with the tort of violation of privacy.
The Privacy Act contains a similar provision: section 8(1). As a result, it is possible that both torts may be available to plaintiffs in Saskatchewan.
In most circumstances, there will be little reason to prefer the more limited tort of intrusion upon seclusion to the slightly broader (if not yet well-defined) tort of breach of privacy. However, it may offer:
- a means to avoid the explicit statutory defences present under the Privacy Act, though courts will likely consider those defences in defining the contours of intrusion upon seclusion in any event; and
- perhaps more significantly, the ability to pursue a privacy-related claim through small claims court, which is precluded by the Privacy Act's requirement that an action for violation of privacy be brought in the Court of Queen's Bench.
It remains to be seen whether the reasoning in Hynes will be followed in Saskatchewan, or indeed applied at the trial stage in Newfoundland and Labrador. However, it offers at least some prospect that the options available to an individual facing a breach of privacy have been expanded.
Wednesday, March 18, 2015
PIPEDA and the Dine-and-Dash by Greg
CBC reported recently on the use of social media to identify a couple involved in a dine-and-dash at a Regina restaurant. But before we see too many businesses adopt a similar strategy, let's note that there are some significant privacy risks arising out of that course of action.
Restaurants and other organizations engaged in commercial activity in Saskatchewan are regulated by the Personal Information Protection and Electronic Documents Act, SC 2000, c 5 ("PIPEDA") in their collection, use and disclosure of the personal information of customers. And it's well-established that video footage of an individual is personal information under PIPEDA's definition of "information about an identifiable individual". (That conclusion is particularly obvious in a case where the express purpose of releasing footage is to identify the individuals involved.)
As a result, a business releasing footage for the purpose of identifying individuals may only do so in accordance with the authorizing provisions of PIPEDA.
In principle, an organization is permitted to disclose information for the purpose of collecting a debt owed by the individual to the organization: PIPEDA, section 7(3)(b). So there's no serious issue as to whether disclosing footage of individuals who have left without paying is for a valid purpose - though the organization may run into trouble if it's incorrect as to whether a debt is actually owed.
More significantly, though, an organization is also required to limit its disclosure of personal information to what is appropriate in the circumstances: section 5(3).
On that front, disclosure of information in a manner which makes it available online without restriction may raise significant liability issues. See e.g. here at para. 58 as to the problems with posting information on unsecured websites in the context of a defamation claim - and note that under PIPEDA (unlike in the defamation context), the truth of the information being made available is not a defence.
Beyond the inherent risks of posting information online, the appropriateness standard may become even more difficult to reach when a business' intention is to have information shared among people who may not know the individuals involved, with the mere hope that it will eventually be passed along to somebody who may be able to apply it for the organization's purpose.
And PIPEDA makes an organization liability for damages caused by humiliation or otherwise where it discloses personal information inappropriately: section 16(c).
So how could the show-and-shame approach go wrong?
Suppose one of the individuals in a photo released on social media had recently moved between cities for the purpose of escaping from an abusive relationship - and the former partner was able to determine the individual's new location because of the organization's sharing of the photo online. Under those circumstances, it's highly questionable that the sharing would be found to be appropriate - and the business responsible could be required to pay damages for humiliation, emotional suffering, and the cost of relocating the individual to a safe location.
Fortunately, the actual incident in the news seems to have been resolved without any such issues. But any organization should be careful before making a habit of putting photos online to track down non-paying customers - as the liability risk could far exceed the payment which might be recouped.