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JS380 (30)

Status Under Collective Bargaining Legislation.docx

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University of Regina
Justice Studies
Stefan Idziak

Status Under Collective Bargaining Legislation: Introduction  only employyes are capable of collective bargaining, but the nature of "employee" is in flux 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 bargain collectively.  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 positions. 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 sense  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unions take greater ownership and role in the companies they work in, the old arms-length, adverserial approach may be outdated.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 Analysis  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 employees 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 employer o most of their equipment owned by the publisher. o etc. Ratio:  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 dependence. Depedent Contractors  In Canada, the "fourfold" test is used to distinguish between contractors and employees 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
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