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JS380 (30)
Lecture

Alteration of Working Conditions The Statutory Freeze.docx
Alteration of Working Conditions The Statutory Freeze.docx

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School
University of Regina
Department
Justice Studies
Course
JS380
Professor
Stefan Idziak
Semester
Winter

Description
Alteration of Working Conditions: The Statutory Freeze  no unlitaral changes to the wokring conditinos during the certication and bargaining processes.  PRe-certification freeze begins when certificate is filed, and ends when application dismissed or certificate issued.  then bargaining freeze kicks in and substists until there is a legal strike/lockout position.  Point is to avoid employers from undermining union o this means even bona fide business decisions may be illegal during the freeze period. o even doing things that are in the favour of workers may lead to an unfair business practice  don't want bribes or punishments.  Canadian Imperial Bank of Commerce o during freeze period, Bank gave raise to all non-organizing branches but not branch that was organizing. o Board applied "busniess as before" test and found an unfair business practice. o shcheduled pay raises must continue as before  BC allows some changes in conditions o employer can apply to board to have conditions of employment changed, even during the freeze o board may allow these changes if "business as usual" and "business as before"  perhaps based on resaonable expectations of parties? Simpsons Limited v. Canadian Union of Brewery, Flour... (1985) N.S. LRBR  Employer department store, in some difficulty.  union recently certified. Just prior to notice to bargain, employer made big lay offs across the workforce, including in certified unit. o some of the work that was laid off was replaced by contractors.  Board accepted that the layoffs were done without anti-union animus.  But bargaining freeze meant "business as before" was supposed to keep going o this is a hard test though.  Typcially first time events are rejected by the board o however, sometimes layoffs are ok during the freeze, even where that was the first instance of lay offs.  Goes to reasonable expectations model instead o what would a reasonable employee expect to constitute his or her privileges in the specific circumstances of that employer? o it may be reasonable for employees to expect an employer to respond to a sginficant downturn in buseiness with layoffs, even if this is the first round of layoffs. o of course, severity and extent of layoffs must be proportionate to the severity of the economic circumstances. o Must be an absence of animus.  So layoffs ok  but would a reasonable employee expect a downturn to be met with layoffs, then have those layoffs replaced with contract workers? o during the freeze, the employers abliity to contract out is limited.  Ultimately the board found that the lay offs were ok, but that the contracting out was not, because "the introduction of a new means to continue to have the work performed" aws outside the employees' reasonable expectations? Ontario Public Service Employees Union v. Royal Ottawa Care Group  Hospital reduced benefits during bargaining freeze.  hospital says it was acting in response to serious budgetary pressures. o reducing savings without impairing other benefits or patient care. Analysis  freeze captures bonafide actions that may nonetheless undermine organization.  aim is to facilitate bargaining, not protect employees from persecution  "business as usual" model is flawed, since obviously when unionization occurs, the business must change. o indeed, if business continue to act unilaterally as it did before, it would violate the process.  reasonable expectation not much help, since no easy way to determine how reasonable employee expectations may be ascertained. o besides, given the organizing employees should reasonably expect that these kinds of decisions will be the product of bargaining.  Board moves to a third approach, that reads the freeze provisions in light of the need to bolster the bargaining process, reinforce the status of the unioin as bargaining agent, and provide a firm (if temporary) starting point for the collective bargain National Labor Relations Board v. Exchange Parts Co., (1964), USA USA USA  basically boils down to changes that benefit the employees are also not allowed.  "Danger of a fist inside the velvet glove".  employees will assume that what can be given can be taken away... Ratio:  new benefits are also inappropriate during the statutory freeze. Unionization and Wal-Mart in Canada Plourde v. Wal-Mart Canada Corp. [2009] SCC Facts  D closed its store during negotiations with union over a first collective geement  P argued that when Wal-Mart closed the store and he lost his job, this should be understood as dismisal motivated by anti-union animus  trbinual and lower courts said that Wal-Mart had permanently closed the store, so it doesn't matter what the motivations were o can't order reinstatement, and can't order Wal-Mart to reopen the store  SCC rule 6:3 in favour of Wal_mart o Binnie said that 15-17, which deal with dismissal for union activity, could not apply where the employer had p
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