Canadian Labour Relations

This article is about the labour relations in Canada, presented by Mr Martin Aquilina, who is the founder of Aquilina Law, Ottawa, Ontario, Canada. He is an international business lawyer. This was recorded in October 2020 when he was still belonged to HazloLaw. Please keep in mind that all information in this article and video is accurate as of October 2020.

I. Constitutional Regime in Canada – Federal vs Province, Public vs Private –
He started with an explanation of an overview of the constitutional regime in Canada. First, he explained, “the federal government is empowered to make laws that the provincial governments are not empowered to make, and vice versa.” He emphasized this point because we need to comply with a federal law wherever we are in Canada. After all, it is federal law. But on the other hand, a provincial law covers only the province whose government passed the law.

Also, he mentioned that we need to consider the public and private sectors. Especially in the labour relations of the public sector, this point is vital because “there is a federal civil service as well as ten provincial governments and hence ten provincial civil services.”

He continued to explain that Canada has “potentially four sets of laws for everything”. Then, he pointed out a labour relations law for the private sector in Ontario, a labour relations law for the public sector in Ontario, and some laws for private sectors in Ontario and across Canada.

Labour relations In Canada
Historically, the federal government of Canada developed laws for the administration and regulations for the labour relations, which were similar to the laws and regulations in place in Great Britain. Also, the federal government was mighty even on the regulations for the labour relations.

However, the decision in the case of Toronto Electric Commissioners v. Sinder removed the federal government’s ability to govern the labour relations for most employers. This means that the regulation and enforcement of the labour relations laws became decentralized. “It allows each province to tailor its policies and its laws to the inhabitants of the particular province,” explained Mr Aquilina. Then, the government rewrote the law to one which applied to only employers in federal sectors and of companies that were incorporated under the federal law.

Collective Bargaining and the Wagner Model
Collective bargaining is a negotiation process between a group of employees, so-called a union, and an employer. A representative from the union can negotiate with their employer. They are “obligated to negotiate in good faith,” said Mr Aquilina.

The Wagner model is a basic model of collective bargaining. Because of this model, the labour management model in Canada is similar to one in the US. In the current framework of collective bargaining based on the Wagner model, any strikes and lockouts are not legal once they have a collective agreement. Mr Aquilina explained;
“Once a union obtains the bargaining rights on behalf of the employees, it is the one and only legally recognized agent of all the employees in the bargaining units, which can be seen as a good thing. However, what it means is that the employees themselves lose their individual status of employment.”

In short, they have no longer an employment relationship under the collective bargaining agreement. This leads to the situation where employees are not allowed to sue against their employer even if the employees find any breaches of the employment contract. They no longer have “the right to do that once a collective agreement is in place.”

Also, there are specific classifications of employees where the right to strike is limited or none. For example, certain workers who are considered essential workers, such as ambulance workers, hospital workers, firefighters, and the police, “have limited right or no right to strike.”

He told us that the collective bargaining agreement would come to the following results.
The employee’s loss of the right to sue for any alleged of their employment agreement
A court cannot decide the worker-related issue
Mandatory grievance and arbitration procedure

Joint Management-Employee Boards (or Committees)
The joint management-employee boards or committees are a solution to avoid the above results of the collective bargaining agreement. An advantage for the employees is that it allows for some forms of representation other than one of a union. A benefit for the employers is that it will enable them to keep a balance of power between management and employees and flexibility more than in a unionized workplace. This method is implemented in largely unionized industries. However, this is not mandated by law, and it is entirely voluntary for employers to

II. Workers’ Protection – Employment Standards Legislation (ESL) –
For employees who do not belong to a union, each province and territory in Canada sets out the minimum legal requirements such as overtime, minimum wage, statutory holidays, vacation, different types of leaves, notices of termination, severance pay, and so forth. The employers must follow these requirements.

Human Rights Legislation
Human rights tribunals exist in all jurisdictions in Canada and deal with complaints against harassment and discriminatory practices. On the following prohibited grounds, all discrimination and harassment are prohibited: age, disability, sex creed, colour, place of origin, ethnic origin, sexual orientation, ancestry, marital status, and citizenship. Mr Aquilina said that employers would need to show that those things were “not to have been material to the decision of, or even considered in, the decision to demote the employee or terminate its employment.”

Canadian Human Rights Act (CHRA)
The CHRA is a federal law and prohibits discrimination at the federal level: the federal government, First Nations governments, and private companies regulated by the federal government. All employers and service providers in this category must comply with this act and treat all employees equally.

Employment Equity Act (EEA)
The EEA is also a federal law and requires federally regulated organizations and businesses. Those organizations and businesses must provide equal employment opportunities for women, Aboriginal people, disabled people, and people in visible minorities. Mr Aquilina added that the EEA’s requirement “is going beyond even the idea of not discriminating. It is actually legislation that is in place to promote or advance the interests of certain groups which have been traditionally discriminated.” Any provinces do not have an equivalent law to the EEA.

Both CHRA and the EEA only apply to the federal level. Mr Aquilina said, “Private employers, by and large, do not have the obligation to promote or to allow greater access to employment for people” who are listed above.

Occupational Health and Safety
He also explained the occupational health and safety of workers to reduce casualties in the workplace. Every province has a law which “forces employers to have committees to examine on a regular basis.”

III. Personal Data Protection
The framework for the personal data protection in Canada, he said, “may be more restrictive or a little more stern,” and “the laws are a little more prescriptive.”

The federal Personal Information Protection and Electronic Documents Act (PIPEDA) is the law for personal data protection in Canada. This federal law governs the handling of personal data in all commercial activity across Canada unless provinces adopt similar legislation to the PIPEDA. Today, employers in Quebec, British Columbia, and Alberta must comply with those laws for personal data protection; however, ones in the other provinces need to follow the PIPEDA.

Mr Aquilina also explained the position change of the Office of the Privacy Commissioner of Canada (OPC), which administers and enforces the PIPEDA about the “disclosure” or “use” of the personal data between organizations, including transfers between organizations and their service providers. Between April and September 2019, the OPC issued their view that such data transfer is considered the “disclosure” rather than the “use.” However, this change “caused to a number of people to panic,” so the OPC reverted their position back before April 2019. Now, consent for personal data transfers to data processors is generally not required.

Mandatory Data Breach Reporting
Organizations have to inform affected individuals of any security breach, including their personal data. In Canada, since 2018, organizations need to notify the OPC also when a security breach occurs. Also, the PIPEDA requires the organizations to keep and maintain a record of every breach of security safeguards for 24 months.

IV. Whistleblower Protection
Mr Aquilina pointed out that “employers of the public sector are governed much more stringently when it comes to whistleblowing and the protection of the whistleblower than those in the private sector” because the employees in the public sector “are deemed to be the custodians … of the trust of the public and the trust of the electorate.”

Public Servants Disclosure Protection Act (PSDPA)
The PSDPA protects all employees in federal departments, agencies, boards, tribunals, Crown corporations, court administrations, and the Royal Canadian Mounted Police. They may bring a claim of wrongdoings forward confidentially and securely without fear or retaliation.

Whistleblower Programs
A first paid whistleblower program is started in Ontario in July 2016 under the Securities Act. There established the Ontario Securities Commission (OSC) to administrate the whistleblower program. In this program, whistleblowers are compensated for whistleblowing. Following the program in Ontario, Alberta, the Alberta Securities Commissions (ASC), implemented a whistleblower program in November 2018. The program of the ASC is not a paid program; however, it provides many processes and mechanisms to allow whistleblowers easily to report, including confidentiality protection and protection from retaliation. Mr Aquilina mentioned that those programs “only applies to the extent the Securities Act applies, and the Security Act is not likely to apply to anyone who is not in the securities industry.”

Canada vs the United States and the European Union
In Canada, the whistleblower protection is limited to the employees in the public services, those in publicly traded companies in Canada, and those in the securities industry. In contrast, employees in all industries are protected in the US and the EU.

Difficulties in Foreign Implementation
There are no difficulties implementing the whistleblowing regime, which is utilised in Japan, for example, because laws in Canada do not mandate it. Also, he said that implementing the whistleblowing regime “would actually be a voluntary regime” because, especially in the private sector, “we do not have these programs by and large” in Canada.

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