Tuesday, August 1, 2017

Common-Law Abandonment Still Applies in Saskatchewan by Greg

Recent amendments to Saskatchewan's labour laws have included explicit statutory provisions governing the abandonment of bargaining rights: see section 6-16 of the Saskatchewan Employment Act ("SEA"), and section 6.1 of the since-repealed Construction Industry Labour Relations Act, 1992. Until a recent decision of the Saskatchewan Labour Relations Board, it was unclear whether these provisions covered the field with respect to abandonment, or whether a previous body of case law would continue to apply.

The Board answered that question in United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International, Local 2014 v. United Cabs Limited, LRB File 110-17 (PDF) ("United Cabs").

In United Cabs, another union had previously represented workers employed by the respondent. In response to an employee's application under section 6-16, the previous union gave notice to the Board in May 2017 that it had abandoned its bargaining rights. However, the employer raised the previous collective agreement as a bar to the applicant union's certification application. 

In light of the employer's assertion that the previous certification remained in effect, the applicant withdrew its certification application, and instead applied to have the outstanding bargaining rights assigned to it with the consent of the previous union. The employee also withdrew his abandonment application. The employer then reversed course, and argued that the common-law principle of abandonment applied to the previous certification. 

Chairperson Love determined that the common-law jurisprudence continued to apply, holding as follows at para. 44:

As noted above, the statutory provision provides an employer with a sword, something which was lacking in Cineplex.  It does not, however, provide a shield, something which the common law practice provides.  The statutory provision is complementary to the common law rather than ousting it.

Chairperson Love did note that under the circumstances, he would have allowed the employer to advance an application under section 6-16 in any event: para. 48-49. Under the circumstances, the Board concluded that the previous bargaining rights had been abandoned: para. 52-53. As such, there were no remaining rights to be assigned, and the application was dismissed: para. 59.

The alternate basis for decision in United Cabs reflects the reality that in most cases, a valid assertion of abandonment under the common-law jurisprudence could also be addressed under section 6-16 of the SEA. However, the common-law principles may be particularly relevant where abandonment is asserted based either on an express declaration at a single point in time, or a failure to assert bargaining rights over a shorter time frame than the three-year period set out in section 6-16.

As a result, United Cabs serves as a reminder that unions must be careful to continue asserting their bargaining rights to avoid a finding of abandonment. 

This blog consists of general legal information only, and does not constitute the provision of legal advice to any person or organization. Please contact me at gfingas@grj.ca if you require legal advice related to labour, employment or privacy issues.