Our Canadian labour and employment system in Ontario functions under Collective Bargaining, Common Law, and Employment Standards Act (ESA) regimes. A selection of cases can help demonstrate how these three regimes manage to regulate the amount of work and attendance obligations of employees in Ontario. McGavin and the Falconbridge cases, outline some of the perimeters that separate collective bargaining, the common law, and ESA regimes and can help deduce what each of these regimes can produce for an employee’s day-to-day workplace obligations. Next, The Wal-Mart case establishes how the collective bargaining regime interacts with an employer’s ability to effect unionization and collective agreements that are created to affect amount and attendance at work. The nature of the basic agreement between the parties in each regime and the remedies available to correct alleged wrongs is an important aspect of this paper. Furthermore, this paper will look at the fundamental ways in which collective bargaining changes agreements and remedies. It should be noted that collective bargaining regime is different from traditional contracts with implied terms (common law regime) and conventional statutory regulation governing some minimum standards in contracts (ESA); the selected cases here discuss aspects of collective bargaining and the amount of work an employee is obliged to complete in comparison to the common law system and the ESA.
Common Law and Statutes
Common law employment agreements are similar to common law contract. They are created through an offer, acceptance, and consideration and are exclusive to parties directly negotiating themselves into various amounts of work and attendance requirements. Contracts may contain certain implied, but rebuttable terms, and are to be adjudicated by a court of law – unless parties contract themselves out of such remedies. Provisions could include the amount of work, over-time pay, vacations, and the consequences that would flow from lack of attendance with or without excuses and other such terms. In McGavin, for example, regular attendance at work is noted as one such implied term in the contract; failing to attend would, in a common law regime, count as breach of contract and be cause for dismissal.
In the contractual regime lawmakers have often either mandated or forbade inclusion of specific terms in some general class of contract. If a contract is expressly or impliedly is prohibited by statute or common law, it is illegal and void ab initio. The ESA makes exact types of statutory amendments, detailing the minimal provisions that an employment contract shall be implied to contain and which, cannot be contracted around even notwithstanding the will of all parties. The 1983 decision Falconbridge illustrates how these provisions would apply in the determination of overtime pay: if an employee is found to have worked more than 44 hours within their work week, they are entitled to time and a half pay for their remaining hours in that week. No mention of the original contract is made when deciding this point, since that contract is irrelevant once the ESA has set an unavoidable minimum provision. A contract cannot take away this overtime pay entitlement. Falconbridge does, however, reference the collective agreement when determining what a “work week” actually is, since ESA does not clearly command this aspect of the contract.
The only considerable difference between the ESA and other contract-modifying statutory provisions is that ESA-based disputes for example about the amount of work that would be considered over-time can be adjudicated either through the courts or through a specific ESA tribunals. In such instance an officer would be assigned to decide the fate of a grievance by an employee or employer. Once jurisdiction has been assumed by one of the bodies, the process has begun and no remedy can arise out of another judicial body available in the Employment and Labour Law context. Falconbridge case travelled through the courts and this route would have automatically prevented a simultaneous appeal to the Tribunal.
Consequences of Collective Agreements
When it comes to termination, the Collective Bargaining regime in Canada has a clear purpose, and effect in relation to the employee amount of work and attendance obligations. Collective bargaining is based upon the premise that a collective body can negotiate on behalf of all employees, even against the wills of up to 49% of said employees. Such agreements entirely displace individual employment relations. These agreements also displace much of the rationale behind the ESA provisions, since an unionised and complex bargaining unit is seen to be in less need of statutory protection. The idea is that a collective structure operates under a set of rules that are entirely different from the common law or statutory mandates. Here even a highly sophisticated corporation is treated similar to a person who is merely a privy to the collective agreement. Interestingly, the certification of a union including an attempt to establish a union would instantaneously impede recourse to courts of law. All parties in this situation must first go through arbitration. The McGavin and Falconbridge cases can help illustrate this issue since both were decided on the premise of failure of the complainants to go through the appropriate arbitrative networks including the bargaining table in the case of Falconbridge.
Another consequence of interacting in a collective agreement is that employees lose their ability for individual decision-making. Parties to any contractual agreement can, in the middle of that agreement, meet each other and come to whatever alterations and accommodations they can mutually agree to in regards to amount of work and various attendance requirements. This is indeed the case under the common law of employment, which is restricted only by the ESA mandates. One interpretation of the Wal-Mart decision may allow for the recognition of the parties’ right to have such discussions regarding most employment-related matters. However, after certification of a bargaining unit and a union – the contractual nature fails since “…it is [not] possible to speak of individual contracts of employment and to treat the collective agreement as a mere appendage of individual relationships.”
After certification, the union is the one and only party that can bargain for all employees, including those who did not vote for the certification of the union. The extent of this bargaining power is noteworthy: in Falconbridge, the union was assumed to have the power to effectively waive the ESA on behalf of its employees regardless of the individual employees knowledge or consent to such a concession with potential adverse effect on the employees. It is stated in McGavin, these employees would have no right to strike to protest the union’s waiver of their rights; their best option would be to get classified as a separate bargaining unit under OLRA section 8.1(5.5).
Whether the union has the power to waive safety statutes or commit the employees to otherwise excruciating working conditions is a question that must be addressed. Failure of employees to stand by their collectively bargained agreement may be just cause for dismissal resulting in the breakdown of the work relationship. The consequences of just cause dismissal are that the employee does not receive employment insurance benefits or reasonable notice or payment in lieu of termination.
The leading case in Canada on dismissal for cause is McKinley. In this case, the Supreme Court of Canada held that just cause for dismissal is where the employee’s work place breach gives rise to a breakdown in the employment relationship. The Court concluded that just cause exists where the misconduct violates any fundamental condition of the employment contract, breaches the faith inherent in the employment relationship, or is essentially inconsistent with the employee’s obligations to the employer. The Court also stated that an applicable balance must be struck between the severity of the misconduct and the punishment imposed by the employer. Hypothetically, failure to attend intolerable work bargained by the union may mean that employee may at the very least lose their termination pay entitlements since there are no clear cases outlining a union’s fiduciary/agency duties toward its members.
The remedial provisions available for effective breach of the employment relationship differ in the three regimes. Whether under common law or related statutory mandates, the parties may breach the relationship by their conduct. Consequences include damages for the breach and the voiding of contract or other remedies flowing from the law of contracts.
Breaches of a collective agreement, however, only generate the right to file a grievance to an arbitrator. In McGavin, even the fundamental breach of not showing up to work was held inadequate to prompt common law remedies, although the employer did have the right to file a grievance and seek termination at the arbitration hearing. In Falconbridge likewise remedies provided by the Collective Agreement – arbitration in the short term, renegotiation in the long term – are the only remedies that are available, even for an ESA claim. Hence it is clear that the initiation of a Collective Bargaining regime that would affect fundamental terms such as the amount and attendance requirements dislodges common law and most statutory mandates. As a result, what is left are the remedies provided by the collective agreement – often restricted to arbitration. Although it should be noted that an arbitrator may still look to the common law or the ESA to reach a decision about non-negotiated terms, but most sophisticated parties would not leave a substantial matter out of the collective agreement.
It is important to understand the ultimate Collective Bargaining remedy: The ability to strike in absence of an agreement. While striking for recognition of grievances is permissible under both the common law and the ESA, it is usually treated as fundamental breach and is typically rewarded with instant dismissal. A certified union, however, has the ability to order an organized strike after its good-faith negotiations with an employer fail which would effectively end the employees work obligations. The employer is precluded from permanently terminating striking workers who are not attending work for the first six months of a strike. While it is important for the juridical pupil to understand this power and the bargaining advantages that it offers, it is often even more important for the legal rookie to grasp its limits; a strike can only be called where there is no existing Collective Agreement in place. The employees in McGavin Toastmaster, for example, attempted to strike while a Collective Agreement was in effect; an action which constituted an illegal wildcat strike subject to arbitrative punishment.
Employer duty of non-interference
There are also some duties that are enforced upon the employer under the collective bargaining regime. Since union members and organizers are inherently in a dynamic power relationship with the employer, the employer may have the ability to punish their union participation by reacting against them personally, either by creating unbearable working conditions or through termination. The resulting employer duties of non-interference in union matters, enumerated in OLRA s.70 and s.72 where hardly any other legal relations impose such a strong prohibition on the way speech and action by an employer can be regulated. In Wal-Mart, the employer greeted the news of a emerging union organization drive with an argumentative battle. The employees were gathered for a speech by the area manager, a pro-employer employee was allowed to give a lengthy speech on behalf of the employer – with no rebuttal speeches allowed by union organizers, the “home office” managers spent several days walking around the store asking employees about their union support, and the employer implicitly indicated that the store might close upon successful union certification by refusing to answer the questions about the potential for store closure, despite otherwise indicating a willingness to answer all other types of questions.
Wal-Mart having used every union-deterring option short of actual dismissal allowed the OLRB to adjudicate the appropriateness of various forms of an attack on amount and attendance at work for the purposes of this paper. The pro-employer speech by the employee and the gathering of workers was permissible, but the fact that there was a threat of store closure which would destroy the ability to attend work in an implicit fashion was sufficient to breach section 70 of the OLRA: “An employer simply cannot allow an employee to make a speech containing… subtle threats to job security… at a meeting run by management, fail to distance itself from the comments and then silence the union’s supporters…” The presence of the outside managers, while not ruled prima facie actionable was held to be “an extremely risky response… to the union’s organizing drive.” Their “repeated and persistent personal contact… was clearly designed to identify the union supporters and communicate the message [that a union was unwelcome]…” This interference by the outside managers was found as a breach of section 70 – an action designed to adversely affect the union’s organization drive directly affecting the ability of employees to engage in their contractual obligations of certain amount of work and attendance.
In conclusion, Wal-Mart decides that the employer’s failure to answer questions about store closure also, in these “unique” circumstances resulted into the breach of section 70: “If you adopt the approach of constantly soliciting questions [in the circumstance of a union organization drive] you have to answer them… company’s failure to answer the questions of associates with regard to the issue of store closure would cause the average reasonable employee to conclude that the store would close if the union got in.” Hence, if the employee asks questions about the union, the employer should decide to either answer all or none in a way that will not be seen as jeopardizing the employee’s ability to attend work.
Hence, a union can be seen as an agent, which negotiates on behalf of previously individual employees. The choice of whether to bargain individually for the amount of work and attendance requirements under common law and ESA doctrines, or collectively under OLRA collective bargaining provisions should rest with the employees alone. The OLRA provisions were designed to leave that choice with the employees. It would be counterproductive to the goal of empowering employees to have the employer affect this choice since the employer may have a hidden agenda to support the least effective bargaining agent that attempts to unionize.
Conclusion: Termination with cause
The basics of Labour and employment Law that effect the amount and attendance requirements of employees in Canada are ultimately created through the distinction between the common law employment contracts as modified by the ESA versus the collective bargaining regime. These differences mainly rest in the type of judicial remedies available to employers/employees with a grievance regarding daily work obligations. For the common law there are the courts while the ESA, a court or a tribunal appointed officer. For collective bargaining there is arbitration. Ability to strike without facing dismissal when a group of employees for instance are pushed to work in difficult conditions without any break time or paid vacations and the prohibition on employer to interfere with the unionization process is one of the advantages of collective bargaining.
TABLE OF AUTHORITIES
Ontario Labour Relations Act, 1995, SO 1995, c 1, Schedule A [OLRA].
Ontario Employment Standards Act, SO 2000, c 41, s 97 [ESA].
Cope v Rowlands,  150 ER 707.
Falconbridge Nickel Mines Ltd. and Egan et al, 1983] OJ No. 3068, 148 DLR (3d) 474, ONCA [Falconbridge].
McGavin Toastmaster Ltd. v. Ainscough,  1 SCR 718 [McGavin].
McKinley v BC Tel,  2 SCR 161 [McKinley].
Parry Sound (District) Social Services Administrative Board v Ontario Public Services Employees Union, Local 324, 2003 SCC 42.
United Steelworkers of America v. Wal-Mart Canada Inc.  OLRD No 207 (OLRB) [Wal-Mart].
Weber v. Ontario Hydro,  2 SCR 929.
SECONDARY MATERIAL: ARTICLES
Piccolo, P and Bhandal, N. “Dismissal for Just Cause: It Is Not Impossible To Terminate For Just Cause… The Right Policies Can Do Wonders!” Labour and Employment Group Leader at Keyser Mason Ball, LLP <http://www.kmblaw.com/news48.html>
 McGavin Toastmaster Ltd. v. Ainscough,  1 SCR 718 [McGavin]; Falconbridge Nickel Mines Ltd. and Egan et al., 1983] OJ NO 3068, 148 DLR (3d) 474, ONCA [Falconbridge].
 United Steelworkers of America v. Wal-Mart Canada Inc.  OLRD No 207 (OLRB) [Wal-Mart].
 McGavin Toastmaster Ltd. v. Ainscough,  1 SCR 718.
 Cope v Rowlands,  150 ER 707.
 Falconbridge Nickel Mines Ltd. and Egan et al., 1983] OJ No 3068, 148 DLR (3d) 474, ONCA.
 Ontario Employment Standards Act, SO 2000, C 41, s 97 [ESA]. Grievance may not file civil action, including suit for wrongful dismissal, if have complaint and s.98 of ESA: no ESA complaint if civil action.
 Ontario Labour Relations Act, 1995, SO 1995, c 1, Sched A, s. 10 [OLRA].
 Supra note 3. Here the common law rules of constructive breach no longer applied after a collective agreement was signed.
 Supra note 5. Here, the union was denied standing for grievance because they were seen as having had a number of chances to bargain about the very matter at hand.
 Supra note 2.
 Supra note 8 at s43 and s48.
 Supra note 1 and note 5.
 Supra note 1.
 Supra note 8 at s45.
 Supra note 5.
 Supra note 1 at 724.
 Piccolo, P and Bhandal, N. “Dismissal for Just Cause: It Is Not Impossible To Terminate For Just Cause… The Right Policies Can Do Wonders!” Labour and Employment Group Leader at Keyser Mason Ball, LLP <http://www.kmblaw.com/news48.html>
 McKinley v BC Tel,  2 SCR 161 [McKinley].
 Ibid at para 48.
 Ibid at para 53.
 Parry Sound (District) Social Services Administrative Board v Ontario Public Services Employees Union, Local 324, 2003 SCC 42. Here it was decided that while OLRA Section 17 does specify a general duty to bargain in good faith, it is not clear if that good faith includes a duty towards one’s members. Furthermore, Section 17 is usually cited in complaint of a lack of serious bargaining by an employer and not the union itself.
 Breaches were acknowledged in McGavin on the employee side and Falconbridge on the employer side.
 Arbitrators and human rights tribunals have concurrent jurisdiction over human rights (Parry Sound SCC 2003); section 48(12)(j) OLRA: arbitrators have power to interpret and apply employment-related statutes; section 45.1 Ontario Human Rights Commission: Tribunal can dismiss complaint if another proceeding has appropriately dealt with it; section 99 of ESA: if employer is party to a collective agreement, ESA enforceable as if part of Collective Agreement – may not file complaint under ESA to enforce.
 Supra note 1 at 727.
 Supra note 5.
 Supra note 8 at s17 and s 79(2).
 Ibid at s 80.
 Weber v. Ontario Hydro,  2 SCR 929. Here it was decided that arbitrators have broad power to interpret and apply the general law.
 Supra note 2.
 Ibid at para 41.
 Ibid at para 43.
 Ibid at para 47.
 Ontario Labour Relations Act, 1995, SO 1995, c 1, Sched A, s 5, s 70 and s 72.