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Nelligan O’Brien Payne gratefully acknowledges the contribution of Andrew Reinholdt, Student-at-Law in writing this blog post.

Many thought 2014 would be the most significant year in labour law since 1987, when the Supreme Court of Canada released its famous labour trilogy, which defined the constitutional status of labour relations in Canada. As it turns out however, while the Supreme Court did hear three cases that will likely redefine the constitutional status of labour relations in Canada this year, we are going to have to wait until 2015 for decisions in these cases.

The three cases are:

  1. Meredith v. Canada (AG), which will consider the constitutionality of a Treasury Board decision to unilaterally impose changes to previously approved pay packages, and the constitutionality of the Expenditure Restraint Act, which imposed limits on previously implemented wage increases to RCMP pay;
  2. Mounted Police Association of Ontario v. Canada (AG), which concerns the constitutionality of the RCMP’s Staff Relations Representation Program, an RCMP program that imposes an internal program of communication between employees and management; and
  3. Saskatchewan Federation of Labour v. Saskatchewan (SFL), which will deal with the constitutionality of the right to strike.

However, these were not the only major labour cases the Supreme Court heard this year. Here are some other important decisions the Supreme Court rendered, which will also have far reaching implications on labour relations in Canada:

  1. PIPSC v Canada (Revenue Agency): this case dealt with the tension between a union’s duty to represent an employee and the employee’s right to privacy and to not involve herself with union affairs. The employee did not want her employer to disclose her home address and telephone number to the union, and argued disclosure breached her rights under the Privacy Act.

The Supreme Court rejected the employee’s argument, noting that an employee’s right to privacy must be understood within the labour relations context, a key part of which is that the union has the exclusive right to bargain on behalf of all its employees. While employees are free not to join a union, the union still has an obligation to represent those employees and requires some of the employee’s personal information in order to do so.

  1. Canadian Artists’ Representation v National Gallery of Canada: the Supreme Court upheld the Canadian Artists and Producers Professional Relations Tribunal’s finding that the National Gallery of Canada breached its duty to bargain in good faith when it refused to bargain scale agreements. Scale agreements are the royalties that the Gallery is required to provide artists for displaying the artist’s work, and are set out in the Status of Artist Act (the SAA). After engaging in negotiations with the Artists’ union for over a year, the Gallery subsequently took the position that it could not negotiate scale agreements. The Gallery argued that the union did not have the written consent of all the artists the agreement would cover, as the Copyright Act required.

The Supreme Court held that Copyright Act does not bar the employer from negotiating scale agreements with its employees; therefore the employer breached its duty to bargain in good faith. The union’s role in bargaining scale agreements is effectively to bargain a minimum wage for artists who may agree to provide his or her work as a producer. Establishing a minimum fee does not interfere with a copyright holder’s right to decide whether or not to provide the right to use his or her artistic work. Moreover, the Gallery also breached its duty to bargain in good faith because it did not follow the parties’ established practice of presenting draft agreements prior to bargaining meetings, and took a rigid stance (of not bargaining scale agreements), which it knew the union could never accept.

  1. TUAC, Local 503 v Walmart Canada: here, the Supreme Court held that it is a breach of the statutory freeze for a store to permanently close during bargaining. The statutory freeze is a stage during collective bargaining where an employer cannot unilaterally change the conditions of employment.

This decision turned on the Court’s interpretation of the phrase “condition of employment”. The Court held that the continuation of employment is implicitly incorporated into every contract of employment as a condition of employment. Therefore, the employer is obligated to continue employing an employee (unless there is just cause or reasonable notice given) during the statutory freeze.

The Court considered what constitutes a change in a condition of employment. The freeze requires that the employer make decisions consistent with its normal business practices prior to the freeze. The employer must conduct business in the same way as it would have had there not been an attempt to form a union or renew a collective agreement. The test for whether a change is consistent with past practices has two steps: (1) is it consistent with the employer’s past practice; or (2) is it consistent with the decision that a normal employer would have made in the same circumstances.

In Walmart, the union established that the collective layoff of all employees was a change in the conditions of employment – the employer produced almost no evidence to explain the closure. Indeed, the evidence actually suggested the store was performing well and meeting its business objectives. Therefore, the employer breached the statutory freeze.

Stay tuned to our blog for an update when the Supreme Court releases the three decisions currently sitting in its reserve.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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