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JS380 (30)
Lecture 12

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Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Lecture 12: Remedies for violating the Duty to Bargain  Remedies are not penalties o can only award compensation to the injured union, not punish the employer.  Labour Board must stay within the parameters of statute o however purely monetary wards may not secure the objectives of legislation  typical award is a cease and desist order  notice sent to employees stating that the duty to bargain has been violated  perhaps some costs.  Novel remedies may be possible, but there are 4 situations where a remedial order will be invalid o remedy may not be punitive o remedy may not violate charter o remedy must have some rational connection to the breach o remedy must be consistent with the objectives of the labour Code Royal Oak Mines v. canada (LRB) [1996] 1 S.C.R. 369 Facts:  As above Analysis:  did the labour board go to far in ordering an employer to put back on the table an offer it had made previously o critically including greivance arbitration for employees discharged by employer during strike.  Wording of stautte does not put limits on power of board, allows anything that is "equitable".  Aim of the Code and the board to resolve labour dispute, and this is exactly the thing that Parliament inteended to resolve.  Remedy must be rationally connected with the breach o so remedies must be rationally connected with breach and consistent with the underlying policy of the code.  Here the decision was reasonable, especially considering the extraordinary violence involved in the strike.  Board had to take into account this long history of violence o a simple "cease and desist" order would have done nothing but waste time. o no agreement between parties would be forthcoming.  Statute gives board a lot of flexibility in terms of awards.  Here the board did NOT impose a collective bargain, which may be outside its jurisdcition o this is what the Ontario board found in RadioShack o board used a prior tentative agreement as a baseline for negotiations. o if the parties couldn't agree after that point, they would be subject to binding arbitration.  There are four times when a remedial order will be found patently unreasonable o remedy punitive in nature o remedy infringes Charter o No rational connection between breach, consequence of breach, and remedy o remedy contradicts purpose of Code.  Rational connection. o board must be addressing a particular breach of the code o breach here the employers intractability on the point of greivances o remedy gets around this by making greivance part of the baseline of negotiations. o also intrasigence thwardted agreement.  Union agreed to Inquiry Commission's proposals, the employer rejected them out of hand because the dismissed employees would be back at work. o the result of the order is to put the parties back in the position they would have been in had the breach not occured o so connection clear  Policy consistent with Statute? o part of the purpose is free collective bargaining o however, this is not the only consideration. o Where there is no progress being made and the party is not in good fiath, the Board is justified in fashioning a remedy. o The position of the employer here put an agreement out of the picture. o no other solution possible here Ratio  Remedies must not be punitive  remedies must be in accordance with the Charter  There must be a rational connection between the breach, the consequence of the breach, and the remedy,  And the remedy must be in accordance with the purpose of the statute.  novel remedies possible o in this case, putting an old offer back on the table, due to the history and intractibility of the dispute. o not truly imposition of agreement, since at one point parties agreed on this, and other positions still up for dispute Buhler Versatile  the employer breached the duty to bargain which led to a long strike  remedy was to compenate each employee for the lost wages and benefits had the strike not occured.  Millions of dollars. Board-ordered Abitration  possible for first-contact arbi
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