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What are the limits to management’s right to manage the workplace? What should those limits be? These are contentious questions in labour law. In fact, they are the questions at the heart of labour law. In this session, Lancaster’s experts will debate these fundamental questions, addressing the following:

• Equal Rights vs. Residual Rights: Should arbitrators presume that management’s customary rights to manage the business are limited only by explicit limitations in the collective agreement? Or, did the institution of collective bargaining change all prior assumptions about the employment relationship as Bora Laskin contended? What practical difference will an arbitrator’s view of management rights have on arbitration?

• Fairness, Reasonableness, Good Faith: Constraints or Conceits? Must an employer exercise its management rights or discretion reasonably and fairly? Must management rights be exercised in good faith? Or, is it beyond an arbitrator’s authority to imply these terms into the collective agreement to govern the exercise of management rights and discretion? Should the scope and content of any requirement to exercise management rights reasonably and fairly depend on whether a decision relates more to the operational aspects of the business or to the rights/ working conditions of individual employees?

• Legislation: Too Little or Too Much? Does the proliferation of work-related legislation that arbitrators must apply, such as employment standards, human rights, and privacy legislation, go too far in constraining the exercise of management rights, or not far enough? Should parties to a collective agreement be free to depart from legislated employment standards? Or, Should parties to a collective agreement be forced to adhere at least to the minimum legislative standards? What additional standards should be imposed by legislation?

Prominent counsel will review important decisions delivered in the past year by Canadian courts, labour boards, human rights tribunals and arbitrators as well as recent legislative changes. The panel will discuss how recent developments in caselaw and legislation will affect labour arbitration. Among the cases that will be discussed is the decision of the Saskatchewan Court of Queen’s Bench that recognized a constitutionally-protected right to strike and declared Saskatchewan’s essential services legislation unconstitutional. The final selection of cases for this session will take place a few weeks before the conference to ensure coverage of late-breaking decisions.

The number of defined benefit pension plans is in decline, and as many as sixty to seventy percent of Canadian workers have no access to a workplace pension plan. Furthermore, Registered Retirement Savings Plans (RRSPs) have proven ineffective as a means for saving sufficient income for retirement for the majority of Canadians. While the Canada Pension Plan (CPP) continues to cover most working Canadians, it is only designed to provide minimal incomes to retirees. As a result many modest and middle-income Canadians may face a significant drop in their standard of living at retirement. This bleak outlook is exacerbated by speculation that the federal government will raise the age of eligibility for Old Age Security (OAS) benefits. In this session Lancaster’s panel of experts will look at the causes of and possible solutions to the current pension crisis. They will also discuss strategies for negotiating pension benefits during collective bargaining and for preserving as much retirement savings as possible for employees of an insolvent enterprise.

• Pensions 101: What are "three pillars" of Canada’s current retirement income system? Must the age of eligibility for OAS be raised to ensure sustainability? How is the adequacy of retirement income generally evaluated? What are defined-benefit pension plans, defined contribution pension plans, target benefit plans and hybrid pension plans? What are the pros and cons of each type? What are the key features of the new Pooled Registered Pension Plans (PRPP) the federal government has established? How does Canada’s reliance on employer-sponsored and individual savings compare with other countries?

• Sustainability: What’s behind the current "pension crisis?" Why is there concern that a majority of Canadians will face a drop in their living standards at retirement? How sustainable is Canada’s retirement income system? What factors have combined to produce the drop in employer-sponsored registered pension plan coverage? Why have employers who offered defined benefit plans shifted to defined contribution plans? Can the trend towards replacing defined benefit plans with defined contribution plans be reversed? Is the concern about the sustainability of defined benefit plans overblown? Will the new Pooled Registered Pension Plans be effective in providing more Canadians with adequate retirement income? Why might it be unwise to count on individual saving to fill a growing earnings-replacement gap created by falling pension coverage? Why are RRSPs not adequate to sustain the standard of living of most Canadians at retirement? How do returns from individual savings compare to returns earned by pooled savings? What are the problems with Tax Free Savings Accounts (TFSAs)? Why will they not help to bridge the earnings-replacement gap?

• Proposals for Pension Reform: What are the leading proposals for reform of Canada’s retirement income system?  How do the leading proposals address the following concerns – the role of private savings, the role of the government, size and scope of coverage, choice of enrolling, portability of pension plans? What are the pros and cons of these proposals? Which proposals are most likely to gain traction? What role can unions play in pension reform? Why aren’t unions creating new large-scale, multi-employer plans that could serve employees in smaller workplaces? What are some existing models of union-administered pensions in different industries? Do they provide a viable template for the creation of similar plans? Should large-scale union-administered plans be enlarged to allow more employers to participate?

• Upcoming Issues for Bargaining: What pension-related issues have come up in recent rounds of collective bargaining? What are some innovative proposals for preserving retirement benefits for workers? What are the implications of the recent Air Canada interest arbitration award that created a hybrid pension plan for new hires at Air Canada? How can workplace parties ensure that the solutions they bargain don’t burden younger workers unjustly or leave younger workers without adequate retirement income? Are two-tiered pension plans discriminatory? Are age-based reductions in some pension benefits discriminatory? Is it discriminatory if a pension plan does not allow employees to accrue pensionable service after a certain age?

• Dealing with Employer Insolvency: How have unions and employers been addressing insolvency concerns? Can workplace parties negotiate terms that address hypothetical future situations in which the employer finds itself in financial difficulty and shuts down operations, or lays off employees? What is the effect on the pension plan and employees' pension entitlements if the employer is in financial difficulty shuts down operations, or lays off employees? Must an insolvent employer cover pension fund shortfalls before repaying lenders? Are the employer's contributions to a pension plan "wages" recoverable under federal wage-earner protection legislation? Are employers under bankruptcy protection exempt from paying terminated employees statutorily-mandated termination pay?

"Stress" and "anxiety" are terms that are sometimes used interchangeably. While the two emotional states are similar, they are not the same. One characteristic that stress and anxiety share, however, is they are both major issues in Canadian workplaces. In this session, Lancaster’s experts explain the relationship between anxiety and stress and discuss effective and legally-compliant strategies for accommodating employees who are stressed or anxious:

• Good Stress, Bad Stress, Anxiety: What is the difference between stress and anxiety? What is the relationship between the two? What is the difference between the stress that is inherent in any job and stress that is harmful to an employee’s health? Is ‘stress’ a recognized mental disorder? What about anxiety? Is it a recognized mental disorder? How does the workplace contribute to or affect a person’s stress or anxiety? What are the links between anxiety and stress and other health and safety concerns such as injuries, musculoskeletal disorders, cardiovascular events and other illnesses?

• Recognizing and Preventing Stress: What are some signs that an employee is experiencing harmful levels of stress? Is there a way to measure stress experienced by workers? What can unions and employers do to identify and address any work factors that may cause, contribute to, or exacerbate a worker’s stress? Is a flex-time policy helpful? What are the costs to the employer of allowing stress levels to build-up unchecked? Is failure to address or reduce high levels of stress a breach of the employer’s obligation to maintain a safe and healthy workplace? Does workplace stress constitute a "danger" justifying an employee’s refusal to work?

• Recognizing and Preventing Anxiety: What are some signs that an employee is living with an anxiety disorder? What can unions and employers do to identify and address work factors that may cause or contribute to an employee’s anxiety? If the work environment itself or the duties of the job cause an employee to become anxious, can the employee refuse to work on the basis that the work presents an imminent danger to the employee?

• Medical and Psychological Information: If an employee claims to be too stressed to continue performing his or her normal work or if a physician provides a note saying an employee needs time off due to "stress," how should an employer respond? Is a precise diagnosis of a particular mental disability necessary before the employer has a duty to accommodate? Can an employer ignore diagnoses or medical recommendations based on an employee’s own perceptions about his or her level of stress or anxiety on the basis they are invalid or biased? Some communication between an employer and an employee absent for stress is legitimate, but when might such communication become unreasonable? When might it be considered harassment? Is an independent medical exam appropriate as a means of resolving conflicting diagnoses? If so, how should an independent medical examiner be chosen?

• Accommodation: What is the extent of an employer’s duty to accommodate when an employee’s stress or anxiety is caused by personal pressures or a combination of personal and work pressures? What is the extent of the employer’s duty to accommodate when an employee claims that stress or anxiety arising from normal job duties is disabling? What if the stress of the job contributes to or exacerbates an anxiety disorder or other mental illness? Must the employer alter expectations of performance or productivity? Must the employer alter working conditions? Look for alternative positions for the employee? When will accommodations constitute undue hardship? Must the employer inquire as to whether stress or anxiety is contributing to performance or productivity problems before disciplining an employee or discharging the employee for non-disciplinary reasons? Must an employer accommodate a "stressed-out" employee who engages in misconduct such as theft or violence?

The collective agreement is the law of the workplace, but as with any law, determining your rights and obligations is not as simple as reading through the document. The language must be interpreted according to certain rules. Therefore, anyone involved in labour relations should be familiar with the key principles of collective agreement interpretation. In this interactive session Lancaster's experts will guide you through exercises in collective agreement interpretation, drawing your attention to the relevant rules and principles, including:

• The Plain Meaning Rule: How do arbitrators analyze the precise language used in an agreement to interpret meaning? What is the "plain meaning principle?"

• Purposive Interpretation: What is the difference between the way arbitrators interpret collective agreements and the way adjudicators interpret standard commercial contracts? What is the reason for this difference? When interpreting the collective agreement, should arbitrators apply a liberal analysis similar to the "purposive analysis" that is applied in the context of statutory interpretation?

• Reading the Collective Agreement as a Whole: What does it mean to "read the collective agreement as a whole?" How do arbitrators analyze the relationship between words and clauses to discern the intention of the parties? What effect do marginal notes and headings in a collective agreement have in aiding interpretation? Does a preamble play any role in contract construction?

• Implied Terms: When will arbitrators imply terms into a collective agreement? Should arbitrators imply terms of reasonableness, fairness and good faith into collective agreements? What legislation is implicitly part of the collective agreement? Are there limits to the principle enunciated in the Supreme Court’s decision in Parry Sound that arbitrators have the authority to interpret and apply all employment-related statutes as implied terms of the collective agreement? What is meant by "incorporation by reference?"

• Use of Extrinsic Evidence: When will collective agreement language be considered ambiguous such that evidence of past practice and negotiating history will be consulted by arbitrators to ascertain the parties' intentions?

• Estoppel: When will the past conduct or representations of one party prevent it from enforcing its strict rights under the collective agreement?

Among the bewildering number of arbitration decisions listed in texts and archived in databases, there are a handful that have stood the test of time, continue to be cited on a regular basis, and, in fact, contain the basic principles of labour arbitration as we know it today. Along with these seminal arbitration decisions, a select few court decisions are essential knowledge for anyone involved in labour arbitration. This session provides an in-depth analysis of these leading court and arbitration decisions that continue to influence arbitral jurisprudence. Lancaster’s experts will explain why these decisions remain important and how the principles they established have developed over time. Our experts will also draw your attention to some more recent cases that are on their way to becoming leading cases in labour arbitration. Decisions to be discussed include:

Guidance from on high: Essential court cases

Weber: What matters do arbitrators, and not the courts, have exclusive jurisdiction to decide? How do the courts/arbitrators decide what matters fall within the ambit of the collective agreement, and therefore within the exclusive jurisdiction of arbitrators to decide?

Parry Sound: What is the scope of an arbitrator's authority to interpret and apply employment-related statutes? When will the substantive rights and obligations in human rights and other employment-related legislation be considered to be an implied term of the collective agreement, a "floor beneath which an employer and a union cannot contract?"

Dunsmuir: What is the standard of review applicable to the decisions of arbitrators? When will the courts review on a standard of "correctness," and when does the standard of "reasonableness" apply? Has the Dunsmuir approach to judicial review been altered by the recent trilogy of Supreme Court cases that includes Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals; Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association; and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)?

British Columbia v. B.C.G.E.U. (Meiorin): What is the nature and content of the duty to accommodate under human rights legislation? What types of requirements will be considered bona fide occupational requirements? When will accommodation reach the point of undue hardship?

Seneca College: Do arbitrators have the jurisdiction to award aggravated and punitive damages? What does Seneca College say about the scope of an arbitrator’s jurisdiction to award damages? How does this compare to Ontario Divisional Court’s decision and arbitrator Own Shime’s award in the GTAA case?

Foundational Arbitration Awards

KVP Co. Ltd.: On what basis can unions challenge unilaterally-imposed employer rules if the collective agreement does not specifically prohibit those rules? What requirements must unilaterally-imposed employer rules meet in order for arbitrators to uphold them?

Wm. Scott & Co. Ltd. (and Steel Equipment Co.): What are the relevant factors to consider in assessing an appropriate disciplinary penalty for misconduct? When will an arbitrator substitute a lesser penalty than the one the employer has imposed?

Millhaven Fibres Ltd.: When can an employer discipline an employee for off-duty conduct? When will the off-duty conduct of an employee be found to have a detrimental impact on the employer's business?

Edith Cavell Private Hospital: When will an arbitrator uphold a discharge for non-culpable deficiency or incompetence? What steps must an employer take prior to dismissing an employee for incompetence or incapacity?

Hay River: In cases of unjust dismissal in which it is not appropriate to reinstate an employee, how should compensation in lieu of reinstatement be calculated? Is arbitrator Sims’ decision in Hay River regarding the appropriate method of calculating compensation in lieu of reinstatement gaining acceptance as a leading case on the issue? What is the other leading approach to calculating compensation in lieu of reinstatement? Which approach will become dominate?

As a result of Canada’s aging population, some experts are predicting shortages of skilled labour and are warning about the inadequacy of Canada’s retirement income system. People may need to work later in life because they need the income, and employers may want people to work longer because they need the skilled labour. This situation raises questions about the degree to which older workers need to be accommodated under human rights legislation and about what incentives and supports employers should offer to retain older workers. Questions also arise about what policies employers and governments should put in place to retain other groups of employees who are likely to leave the workforce and to re-engage those who have left the workforce. Lancaster’s panel of experts will address these and the following issues:

• Demographics: Do any Canadian jurisdictions still allow mandatory retirement ages that would prohibit people from working past the age of 65? Is it essential to Canada's economic well-being that people work later in life?  Regardless of whether Canada’s economy needs people to work longer, will Canadians be forced to work longer because of a lack of adequate retirement resources? If it is desirable to have Canadians work past standard retirement ages, what incentives should be offered to encourage them to do so?  Encouraging older workers to remain engaged in the workforce longer is one strategy for addressing potential labour shortages and concerns about retirement incomes, but what other groups should employers and government encourage to increase their participation in the workforce? Women with children? Workers with disabilities? What strategies should be implemented both by governments and employers to encourage these groups to participate more fully in the workforce?

• Age and Safety Concerns: Has age been found to be a bona fide occupational requirement in certain types of employment because of safety concerns? What statistics are available regarding the safety records of older workers – especially those in vocations that are particularly safety sensitive, such as airline pilot, firefighter, police officer, etc.? Do workers have better safety records as they age because of their experience or is there a ‘point of diminishing returns?’

• Slowing Down? Can an employer institute tests to assess whether the capacity of a worker to perform his or her job has been affected by age? Must employers alter performance standards to accommodate older workers who wish to remain employed? How much decline in productivity would an employer have to tolerate before it reached the point of undue hardship? If the point of undue hardship has been reached in accommodating an employee with diminished capacities, are there certain steps an employer must take before dismissing an employee for incapacity? Must attendance management programs make certain allowances for older workers who may have more frequent absences due to chronic medical conditions? Must attendance management programs make allowances for disabled employees and employees with significant family obligations?

• Is Part-time Work a Solution? If a full-time employee wants to reduce his or her work schedule to work only part-time to accommodate a decline in stamina due to age, is it discriminatory to refuse the request? Conversely, is it discriminatory for management to suggest that an employee reduce his or her work schedule from full-time to part time because of a perceived decline in energy and/or productivity? Would it be discriminatory to encourage older workers who are eligible to receive their pensions to refrain from working part time in order to give more opportunities to younger workers? Is offering more part-time work a suitable strategy for encouraging the retention and re-engagement of other groups of workers, such as women with children or people with disabilities, who may have left the workforce and may be seeking to re-enter the workforce? Does human rights legislation present any barriers to offering or suggesting part-time work to employees with disabilities or significant family obligations?

• Benefits and Pensions: What changes should workplace parties make to benefit and pension plans to address the costs of employing workers past the customary age of retirement while still respecting human rights legislation and providing an incentive for employees to continue to work? Is it discriminatory to have a pension plan that does not allow employees to accrue pensionable service after a certain age? Can benefit plans still make distinctions based on age? Does the termination or reduction of employee benefits at age 65 constitute age-based discrimination? Should employees over 65 be offered some sort of compensation for benefits they are no longer eligible to receive because of their age? Can an employee retire and continue to receive retirement benefits if he or she is re-hired?

The principles of equality and human dignity that underlie human rights legislation enjoy almost universal support. However, applying human rights principles and legislation in the real world can be complex and contentious. This interactive panel will address the situations in which the application of human rights principles is least clear and most contentious. Participants will be presented with factual scenarios drawn from complex cases and experienced counsel will argue the merits of the case. Conference participants will then be given an opportunity to discuss the case and render a decision, which they can compare to the decision rendered by the experienced adjudicator on our panel. Issues to be addressed may include:

• Rights in Collision: How do you strike the appropriate balance when the human rights of two or more employees come into conflict? How should workplace parties handle requests for accommodation when the accommodation appears to infringe upon the human rights of other employees? Must employers discipline employees who express discriminatory opinions or beliefs based on their religion?

• Negative Stereotyping: What’s the line between looking for ideal qualities and character traits in employees (or potential employees) and discriminating against individuals because of differing cultural norms, values and behaviours? For example, is it discriminatory to prefer "enthusiastic" candidates over more "reserved" candidates because some candidates’ cultural and ethnic backgrounds dictate that they be more quiet and reserved? Is it discriminatory to prefer "energetic" candidates to more staid candidates because older candidates may be, or may be perceived to be, less energetic and enthusiastic than younger candidates? How can a grievor prove that subtle stereotypes operated to disadvantage him or her?

• Discrimination on Multiple Grounds: Does discrimination against an employee based on more than one protected ground compound the harm? How should adjudicators calculate damages when an employee has been discriminated against on multiple grounds? Do prohibitions against discrimination based on family or marital status make the disabilities and religions of an employee’s family members relevant in accommodation requests?

CONFERENCE ENDS
4:30 p.m.

Directions to the Metropolitan Conference Centre Calgary