What Is Employment?

• Compare employee with agent and independent contractor

• Differences:

• Control test - Degree of control exercised over an employee is greater than over an independent contractor

• Organization test - Is person an essential part of employer’s organization?

Tests

• Control test - Degree of control exercised over an employee is greater than over an independent contractor– Factors:

• Organization test - Is person an essential part of employer’s organization?

Obligations

• Employer:

• Employee:

Termination

• Where no just cause, reasonable notice of termination is required of both employer and employee

• Employer is required to give reasonable notice or pay in lieu of notice– may dismiss an employee with notice for any

reason unless it violates human rights legislation

Reasonable Notice

• Minimum Standards – Employment Standards Act– BC

• Contract– Must meet minimum standards of Act

• Common Law– Factors:

Termination/3

• Just cause dismissal requires no notice.

• Dismissal without notice must be based on employee wrongdoing or a failure to perform the job.

• Examples:

Termination/4

• An employee discharged without adequate notice can sue for wrongful dismissal.

• An employee can leave without notice when required to work in dangerous conditions or when work involves immoral or illegal activities

Termination/5

• Constructive dismissal - employment contract may be breached when nature of job changes or working conditions become intolerable.

• Compensation based on reasonable notice, lost benefits and pension rights

– Employee must mitigate losses

Employment Standards Acts

• Statutes designed to protect employees by setting minimum standards for:

– safety– wages– hours of work– child labour– termination

Human Rights Legislation/2

• Issues relate to: harassment, disabled workers, pay equity, affirmative action, retirement policies

– Duty to accommodate– To what point?

• Tribunals hear complaints, investigate, levy fines and reinstate employees

Other Legislation

• Child Labour Regulations– minimum age varies with jurisdiction– designed to control abuses

• Workers’ Compensation– mandatory insurance coverage– paid for by fees assessed against employers – worker gives up right to sue– Exceptions:

Other Legislation/2

• Health and Safety - federal and provincial legislation seek to:

– provide safer working conditions– ensure safe employment practices– establish education programs

• Regulations provide for boards to hear complaints and enforce compliance

– inspection and investigations procedures

Other Legislation/4

• Employment Insurance

• Qualified unemployed entitled to benefits

• Employers and workers pay into a fund

• Decisions may be appealed to Board

Collective Bargaining

• Wartime Labour Relations Act

• Canada Labour Code

• Provincial Acts

Types of Labour Disputes

• Recognition Disputes

• Interest Disputes

• Jurisdictional Disputes

• Rights Disputes

Organization of Employees

• Certification - employees’ application to labour relations board to be recognized as a bargaining unit

• Bargaining Agent - one per bargaining unit

– given exclusive authority to negotiate with employer

– any contract negotiated is binding on all employees within the unit

Unfair Labour Practices

• Legislation creates orderly process for organization and recognition of unions

• lays down specific rules of conduct

• prohibits unfair labour practices

• coercion, intimidation, blacklists,etc.

Unfair Labour Practices/2

• requires employer to recognize and bargain with a certified union

• may provide for certification of employers’ organizations

Bargaining

• Collective Agreements– Either party can give notice to commence

bargaining– Agreement must be ratified by both

employees and employers– Parties must make reasonable effort to

reach an agreement

Dispute Resolution

• Mediation –

• Conciliation or mediation may be mandated by legislation

• Arbitration - a method for settling disputes and grievances arising out of the agreement

– Mandatory in rights disputes– Decisions of arbitrator(s) are binding on

parties

Strikes and Lockouts

• Strike - withdrawal of services by employees

• Lockout - action by employer to prevent employees from working

• Requirements:

Job Action

• Work to rule - employees do no more than minimally required by agreement

• Right to job action limited by legislation

Public Sector and Essential Services

• People involved in essential services may have their right to strike limited

• Public sector employees may be prohibited from participating in strikes

Picketing

• Strikers gathered at a place of business providing information that dissuades people from doing business with employer.

• Permissible only when lawful strike is in progress

• Must be peaceful and merely communicate information

• Courts or labour relations boards may restrict picketing when regulations violated.