Status Under Collective Bargaining Legislation: Introduction
only employyes are capable of collective bargaining, but the nature of "employee" is
o ie, increasing numbers of contracts, consultants, etc.
Some employess legally unable to bargain collectively, often professionals,
agrticulturtal workers etc
Management (and those with significant management capacity) are unable to
May be difficult to conclude who the legal employer is, due to confusing corporate
structures, restructuring, outsorucing, and so on.
Employee organizations may take all kinds of forms, but in order to count as union
must be forme for the purposes of representing the workers vis-a-vis the employer.
sometimes those refused bargaining rights are taken advantage of, but sometimes
even when given rights they have difficulty using them due to their disadvantaged
o others who are barely employees at all (like Drs.) have managed to lobby for
significant benefits and rights.
Old assumptions of vertically integrated blue collar companies no longer make much
What is to be done with the secondary labour market?
o part-time, causal workers
o may hold several jobs.
may be time to consider industry level bargainign rather than employer bargaining,
since the employers are increasingly getting small and specialized.
by focusing on nature of employment, may be missing the point
o some small-business people may be at the mercfy of a single provider of
supplies, but have no access to bargaining
o other groups, like doctors and lawyers, have no firm employer but are able to
bring a lot of pressure on their "employers".
Management exclusion may be overbroad, when we consider the inclusive
participatory approach to management.
As unions take greater ownership and role in the companies they work in, the old
arms-length, adverserial approach may be outdated.
National Labour Relations Board v. Hearst Publications Inc.
Issure: Whether newsboys were employees
no easy test to determine whether someone is or isn't an employee.
must look to purpose of Wagner Act in ordre to define.
Employee broader than old common law "servant", but not meant to include
everyone who performed a service.
The problems the Wagner Act sought to addressed are not solely present in the
traditional employment relationship.
o inequality of bargaining power may be found in contractors works as well as
o strikes from contractors could be just as bad.
Since newsboys face the same kinds of problems and work in the same conditiosn,
they should be convered by the Act o they are supervised and their hours and effots are perscreibed by the
o most of their equipment owned by the publisher.
in order to determine whether someone is an employee, must look to purpose of the
Labour Relations Act
if they are in the same kind of position vis-a-vis employer as a tradtional employee
would be, most likely the LRA will apply.
o look at who sets hours, provides supplies, and whether there is economic
In Canada, the "fourfold" test is used to distinguish between contractors and
o control of the relationship
o ownership of the tools
o chance of profit
o risk of loss
However, some contractors are nonetheless dependent.
Some statutes set out that notwithstanding the fourfold factors, a person who is
working for compensation on such terms that they are economically dependent on
the employer may be found to be an employee.
In BC, statute tends to keep dependent contractors and regular employees in same
unit, while in Ontario they te