JS380 Lecture Notes - Ontario Public Service Employees Union, Unfair Business Practices, Walmart Canada

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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.
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