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This program has been accredited by the Law Society of Upper Canada towards the professional development requirement for certification.

Labour Law             7.5 hours

Introductory Remarks by Co-Chairs
8:45 a.m. to 9:00 a.m.

Since Health Services v. British Columbia, what are labour boards making of the Charter's guarantee of freedom of association? Are trends perceptible in labour law decisions and will they survive judicial review? How much deference are courts affording to labour board decisions on Charter issues? Lancaster's panel of experts will discuss these and the following issues:

• Freedom of Association: Should government restructuring of bargaining units be considered a violation of freedom of association and, if so, in what circumstances?  Should the guarantee of freedom of association include the right to strike? Exclusivity of bargaining rights? Independent dispute resolution? Mandatory Rand formula?  Does the unilateral determination by the employer of what services or positions are essential violate freedom of association? How much judicial deference should be accorded to legislatures in matters of labour policy? Is the concern that the courts will constitutionalize existing labour law real or fanciful?
• Freedom of Expression: How far should freedom of speech be extended in labour relations – e.g. mid-contract work stoppages, secondary boycotts, wearing union pins for organizing purposes, obtaining contact information for the purposes of unionization,  advertising union messages in public places, communicating messages opposed to unionization to employees during an organizing campaign, publically criticizing employers in matters relating to working conditions?
• Equality Rights: Have the courts taken a wrong turn in failing to apply the equality rights provisions of the Charter in labour disputes? Are workers a group analogous to those to which Charter protections are extended under s.15? Does s.15 offer more scope than s.2(d) for challenges to legislation without constitutionalizing existing law? How likely are courts to develop s.15 in a manner that expands judicial review?
• General Issues: How influential is international law on Charter decisions of the courts? Which organs of international law are considered by the courts to be authoritative? Which experts and academic authorities are highly regarded by the judiciary in Charter matters? What role does expertise in labour matters play in decision-making by the courts on Charter issues? Are the decisions of judges on labour issues involving the Charter informed by their attitudes toward labour?

BREAK
(with refreshments)
10:15 a.m. to 10:45 a.m.

This session will provide you with an update on how labour boards across Canada are grappling with the difficulties involved in enforcing the duty to bargain in good faith. Topics to be discussed include:

• Hard Bargaining versus Bad Faith Bargaining: Where an employer takes the position that it will sign a first collective agreement as long as none of its previous employment policies are changed, does this amount to bad faith bargaining? If there is a strike or lockout, can an employer resile from terms that had been earlier agreed to?
• Duty to Bargain Certain Terms: What particular provisions should a party be expected to bargain over as a matter of good faith? Are there matters within management's prerogative that it is not required to negotiate? What matters, if any, should the employer be required to bargain over during the term of a collective agreement?  Can an employer refuse to arbitrate disputes on the discharge of employees for misconduct during a strike?
• Changing Terms During Statutory Freeze: What is the best test to determine the terms that should not be subject to change without both parties' consent during the statutory freeze? How do the factors of past practice and expectations of the parties, and the terms of the existing collective agreement influence this determination?
• Duty to Disclose Information: What kinds of information should parties be required to disclose to one another during bargaining? At what stage of its decision-making should an employer be expected to disclose its plans to the bargaining agent? How much financial information should a union be entitled to request, in what circumstances and on what conditions as to confidentiality etc.? Does one party have a right to receive disclosure of the other party's internal strategic documents dealing with bargaining and strikes?
• Employer and Union Communications: What information should the union and employer be entitled to reveal to their members/principals during bargaining, and at what stage of the bargaining should this occur?  What commitments as to confidentiality is it reasonable to expect from a party during the negotiating process? How much information should the employer be entitled to give employees about offers it has made, is making, or will make to the union? How free should negotiating members be to speak against a settlement which the committee as a whole has agreed to recommend for ratification?
• Bargaining to Impasse: What matters should not be bargainable? What demands should the parties be precluded from pursuing to the stage of strike or lockout? How far afield can a party go in insisting that certain matters, not normally included in negotiations, be placed on the bargaining table?
• "Receding Horizon" Bargaining: Should there be any limit on when a party can raise matters during bargaining for the first time?   When should it be considered that it is too late for a party to raise such matters? What kinds of circumstances justify the raising of new demands during the bargaining process? Should counter-proposals be limited to those which arise from the proposals to which they respond?
• Remedies: What methods have worked to get a party to bargain in good faith when it is disinclined to do so?
• Interim Orders: Are interim orders preservative or remedial in nature? What tests do labour boards apply in deciding whether to grant interim orders in the context of bargaining activities?
• Introduction of Legislation: What is the impact on the broader public sector of the introduction of legislation? If legislation is introduced midway through bargaining, should parties be entitled to re-evaluate their positions in light of the impact of the new legislation?

Issues relating to the ability of unions to organize workers and acquire bargaining rights under legislation are central issues that labour boards deal with on a daily basis. Do unions have sufficient access to employer property for organizing purposes? How much information in the possession of employers should unions be entitled to request? Lancaster's panel of experts will address these and the following topics:

• Employer Property Rights: When do union members have a right of access to employer property for the purpose of organizing? Does it matter whether the access is during or outside of working hours? When will employers' "no-solicitation" rules be upheld?
• Dependent Contractors: How do labour boards decide who is an "employee," a "dependent contractor" or an "independent contractor" under labour relations legislation? What is the significance of these designations? What degree of economic dependence is required to meet the definition of a dependent contractor?
• Managerial Exclusions: What do labour boards consider in determining whether a person is a "manager," who is thus excluded from protection under labour relations legislation? What is considered to be a "management function"? How does the test vary across jurisdictions?
• Unfair Labour Practices: In what circumstances will labour boards certify a union without a vote because of unfair labour practices that make a vote unreliable? When will labour boards reinstate on an interim basis an employee who is fired during an organizing campaign? Under what circumstances will an employer's communications to employees constitute a "captive meeting"? Are captive meetings per se illegal? Are one-on-one supervisor-employee discussions about unionization inherently objectionable? How should Charter values inform the analysis of whether employer communications constitute an unfair labour practice?
• Confidential Capacity: What does it mean to be employed in a "confidential capacity"? To what kind of information must an individual have access in order to fall within this exclusion?
• Privacy Issues: What kind of employee information is a union entitled to? Does an employee have the right to prohibit the employer from providing his or her contact information to the union?
• Bargaining Unit Issues: What factors do labour boards take into account in determining who is the "real employer" for labour relations purposes? When will an agency and a client be found to be a single employer? How do labour boards across Canada differ in terms of their willingness to alter bargaining structures? When will boards certify single-location versus multi-location bargaining units? How much deference are courts giving to labour board decisions on appropriate bargaining units? How should labour boards deal with instances of overlapping trade groups – i.e. where one trade group is attempting to negotiate a collective agreement that includes workers already covered by another collective agreement? Should unions be allowed to re-certify units they already hold for the purposes of closing an open period?
• Prohibition on Employer Involvement: In many jurisdictions, the board cannot certify a trade union if the employer took part in its organizing campaign. When will an employer's "helping" a trade union be caught by this rule? Do in-house voluntary recognitions impact on the organizing activity of trade unions?

In this session, Lancaster's panel of experts will examine labour boards' views of the scope of acceptable employer behaviour and the remedies available to aggrieved parties when this behaviour falls outside that scope:

• Remedies: What remedies should labour boards award to correct unfair labour practices? What principles should guide labour boards in this exercise: punishment, deterrence, compensation? When should labour boards order remedial certification for an unfair labour practice? How should labour boards exercise the discretion to order interim reinstatement during an organizing campaign? How should boards exercise their discretion to award interim relief? Access to property?
• Direct Bargaining: When should an employer be entitled to negotiate individual agreements with employees in a unionized workplace?
• Anti-Union Animus: When should the fact that an employer has taken action against an employee when that employee was exercising his or her rights under labour relations legislation create a presumption that the employer's action was motivated by anti-union animus? Should this presumption be available for employees of a closed business who seek reinstatement because they have lost their jobs because they exercised their collective bargaining rights?
• Employer Communications: How should labour boards determine the balance between the employer's right to freedom of expression and the protection of employees from undue influence by an employer's anti-union views? During collective bargaining, should an employer be able to communicate to employees its bargaining position? Is an employer's warning to employees about the effect that unionization will have on the viability of the enterprise an unfair labour practice?
• Statutory Open Period: In what circumstances, if any, should the employer and union be entitled to close off the open period by agreeing to renew the collective agreement?

A panel of leading labour and management counsel, and labour board adjudicators, will discuss the most significant decisions of the year issued by courts and labour boards, as well as recent major legislative changes and proposals. The final selection of issues for this perennially popular session takes place a few weeks before the conference, so that up-to-the-minute coverage can be assured.

It is in everyone’s interest that labour board hearings proceed efficiently, effectively, and congenially.  But frustrations can arise when adjudicators’ expectations of how counsel should behave are not met, and vice versa.  In this session, prominent labour board counsel and labour board adjudicators will provide suggestions on how advocates and decision-makers can work together to ensure a process that better meets the needs of all concerned.  The panel will address the following topics, among others:

Issues relating to what labour board adjudicators expect from counsel:

• When should preliminary issues and jurisdictional arguments be raised?
• What strategies can counsel employ to cut down on hearing time?
• What methods can counsel use to organize their arguments and simplify issues?
• What materials should be provided electronically to the Board?
• What help do adjudicators expect in terms of labour board procedures and jurisprudence?
• How can counsel avoid the wasted resources associated with last-minute settlements?

Issues relating to what counsel expect from labour board adjudicators:

• How can adjudicators help counsel streamline hearings through pre-hearing proceedings?
• What level of intervention do counsel expect during the questioning of witnesses? 
• What do counsel expect adjudicators to do in the case of an unruly or vexatious plaintiff?
• How much assistance do counsel think adjudicators should provide to self-represented litigants?
• How lenient should adjudicators be in terms of time limits for argument?
• Is it problematic for counsel when adjudicators take objections under advisement?
• What should labour board adjudicators do to ensure that their reasons for decision are sufficient? 
• What measures should labour board members take to protect the confidentiality of sensitive personal and business information?
• How far advanced are labour boards in distributing decisions to the labour relations community?