LANCASTER HOUSE - Labour Employment and Human Rights Law Publishers

While unions generally attempt to negotiate collective agreements that provide their members with greater benefits and protection than workplace legislation, sometimes difficult questions arise about whether the collective agreement or the legislation takes precedence. This workshop will discuss the obligations of workplace parties under labour-related legislation and explore collective agreement provisions that address those obligations. Topics include:

Collective Agreement Interpretation:

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"?
Can parties agree to a collective agreement that prohibits an arbitrator from applying workplace legislation?
Should workplace parties simply rely on the fact that work-related legislation will be implied into the collective agreement or should they negotiate specific provisions dealing with accommodation, harassment, etc.?

Employment Standards:

What approach do arbitrators take to determine whether a contract provides a "better benefit" than employment standards legislation (i.e. an item-by-item or a "global" approach)? Can unions and employers negotiate collective agreement provisions that contract out of certain employment standards obligations?
What types of collective agreement clauses typically frame an employee's entitlement to overtime pay? What type of language in a collective agreement will entitle an employer to demand that an employee work more than the maximum statutory limit?
What provisions have been made in collective agreements for pregnancy and maternity leave? What types of "top-up" benefits do collective agreements routinely provide for pregnancy/maternity/parental leave?

Health and Safety:

Policies, Programs and Training: What provisions should be made in the collective agreement for education and training regarding health and safety issues? What role should the joint health and safety committee play in the education and training of employees in health and safety issues? How can policies most effectively be incorporated into collective agreements?
Joint Health and Safety Committees: What provisions regarding joint health and safety committees should be contained in collective agreements?
Health and Safety Complaints and Work Refusals: What provisions should be made in the collective agreement for worker health and safety complaints? What is the best system to ensure that workers are able to provide input on health and safety issues in the workplace without fear of reprisal? What follow-up response should be provided? Should the collective agreement address work refusals?
Hazards: How should collective agreements address known workplace hazards? What provisions should be negotiated regarding hazard training?
Accidents and Incidents: What provisions should be made in the collective agreement regarding accident and incident investigations?
Return to Work: How can return to work provisions in collective agreements be drafted to meet obligations under both health and safety and human rights legislation? How do the obligations to re-employ under human rights and workplace safety and insurance legislation interact?
Personal Harassment/Bullying and Violence: What provisions have parties negotiated to deal with personal harassment and violence in the workplace?
Compensation: What types of provisions have parties negotiated to "top-up" workers' compensation benefits?

Human Rights Obligations:

Harassment: Does the union share in the employer's duty to provide a workplace free from harassment? What provisions have parties negotiated to deal with harassment?
Systemic Discrimination: What is systemic discrimination? When will a union be jointly liable with an employer for systemic discrimination? What provisions can unions and employers negotiate to combat systemic discrimination against employees with significant family responsibilities, particularly women?
Discriminatory Conditions of Employment: When will the union be held jointly liable with the employer for a discriminatory rule or condition of employment found in the collective agreement?
Accommodation Provisions: What is the union's role in accommodating employees under human rights legislation? What collective agreement provisions have parties negotiated to deal with the duty to accommodate and to avoid liability for discriminatory terms of employment?
Benefits Provisions: If the collective agreement places age or other restrictions on certain employment benefits and these restrictions are found to be discriminatory, will the union be jointly liable with the employer? What if the terms of a benefit plan are incorporated into the collective agreement by reference? Are mandatory retirement provisions associated with access to a pension plan discriminatory?

Privacy:

What provisions regarding privacy should workplace parties negotiate? What are some examples?

Remedies:

What remedies are generally awarded where a collective agreement provision is found to be discriminatory? Will arbitrators "rectify" the collective agreement?