Criminal records and employment law

hand reaching for file folders

Photo Credit – Edu Grande on Unsplash

At SpringLaw we get a lot of questions from both employers and employees about the intersection of the criminal law and the employment relationship. Unfortunately it’s easier, and likely more common, than you might think to get somehow mixed up in a police database or wind up with a criminal record.

Many employers will require some sort of criminal record check as a condition of hiring, or will have policies with respect to their current employees disclosing criminal charges. For the most part Human Rights and Privacy laws do not protect this information.  

Types of Record Checks

In general, an applicant will need to provide the employer with appropriate consent to perform a record check. There are three basic types of record checks:

Police Criminal Record Check

This is the least intrusive level of check and will reveal criminal convictions that have not been pardoned only.

Police Information Check

This check will reveal much more extensive information, including outstanding charges, peace bonds and probation orders, absolute and conditional discharges, family court restraining orders, other court dispositions such as withdrawn charges, police occurrence reports and information about police contact such as 911 calls and police interactions that did not results in charges.

Vulnerable Sector Check  

This check will include all the information in Criminal Record Check, as well as a Police Information Check as well as information about certain sexual and violent offences for which a pardon has been granted.

Discrimination Based on Record of Offences

The Ontario Human Rights Code prohibits discrimination on the grounds of “record of offences”, which is defined as follows:

10(1)  “record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment;

If an applicant has been convicted and been subsequently pardoned, it would contravene the Code to deny her or him employment, even in part because of the record of offences. However, discrimination based on any of the other information that might show up in a check is not prohibited. This means that where an applicant has a criminal record, or a pending charge for example, they can be denied employment on that basis.

Where the applicant has been convicted and pardoned the Code provides protection. As with all discrimination claims in the workplace, the employment decision at issue need not be based entirely on the ground of discrimination.  For example, an employer may deny an applicant a job for other reasons (over-qualified, lack of specific experience, conservative haircut, etc), but if an applicant could prove that at least part of the decision was based on concerns with respect to his or her record of offences (that is, had she or he been convicted and pardoned), the applicant could have a successful discrimination claim.

Not every applicant will fit with your organization, and that is perfectly legitimate, provided the lack of fit is not in any way based on the Code‘s list of grounds for discrimination.

This can be concerning news for job applicants who may have had some interaction, short of a conviction and pardon, with the justice system.

If you have questions about the intersection been criminal law and your workplace we’d be happy to chat.

 

Tips for recruiting online

laptop keyboard

Photo Credit – Markus Petritz on Unsplash

Gone are the days of posting job ads in the newspaper. Like most things these days job recruitment takes place primarily online. It is important for employers to know how to comply with the law in the online environment – human rights, accessibility and in some cases privacy laws will apply. In general, the laws of the jurisdiction where the business is located will govern, though this may be something to consider where recruiting widely for different offices, or where employees will be working remotely.

AODA and Accessibility

Firstly, recruiters needs to be aware of accessibility standards when drafting job ads. For business in Ontario, Ontario’s Accessibility for Ontarians with Disabilities Act (AODA) sets out notice requirements with respect to ensuring that the hiring process is accessible. These include notifying applicants of the availability of accommodations during the hiring process. It is recommended that this notice be built into the language of the job ad. In the online context, the AODA also requires that information be provided in a way that is accessible. This includes standards that speak to the design of a job ad and how the digital information is navigated.  

Human Rights

In all Canadian jurisdictions human rights standards will also apply. In Ontario, under the Human Rights Code, this means that employers cannot ask job applicants questions that would touch on a prohibited ground of discrimination. The prohibited grounds with respect to employment are:

  • Age
  • Ancestry, colour, race
  • Citizenship
  • Ethnic origin
  • Place of origin
  • Creed
  • Disability
  • Family status
  • Marital status (including single status)
  • Gender identity, gender expression
  • Record of offences
  • Sex (including pregnancy and breastfeeding)
  • Sexual orientation

Therefore, even in the online context – craigslist I’m looking at you – a job ad cannot require an applicant to disclose information about any of the above areas . Where an employer requests information about one of these grounds in order to make a hiring decision, they potentially open themselves to a discrimination claim. Where an applicant can demonstrate that they were not hired at least in part because of one of the prohibited grounds, an employer could be subject to damages.

Age

In some jurisdictions there is an exception with respect to age – age in the Ontario Human Rights Code is defined at 18 year of age and older, it is therefore permissible to ask if an applicant is 18+ and, if not at least 18 years old, to ask how old they are. It is also permitted to require applicants to be of a certain age if required by the duties of the job.  For example, where the job involves the service of alcohol an applicant will legally required to be 19+.

Privacy

While Canadian privacy laws are spotty with respect to protecting the personal information of applicants, the following are good general principles to keep in mind:

  • Individuals should be informed about why their information is being collected and how it will be used, stored and shared
  • Information should be securely stored
  • Information should not be kept for longer than is necessary
  • The information of applicants should be kept confidential from each other – for example if there is an interview sign in sheet a new sheet should be used for each applicant so that they do not see the names of those who are also interviewing

British Columbia and Alberta have the most robust privacy laws, but businesses across Canada should consult a privacy lawyer in their jurisdiction to ensure they are complying with standards around data governance.

While it may be tempting to view the web as a wild west free-for-all, it is important to remember that the law still very much applies.

Misrepresentation during the hiring process

Pair of glasses on laptop

Photo Credit – Jesus Kiteque on Unsplash

Employer misrepresentations, such as overstating the benefits program, in an attempt to induce a candidate to take a job can have negative legal consequences.

Negligent Misrepresentations by the Employer

Occasionally, employers might make representations about a job or benefits at the hiring stage that later turn out not to be true. Usually these will not be outright lies, but reflect assumptions, or a lack of accurate information, on the part of the hiring team.

Conversely, the candidate might ask questions that the hiring team is not fully qualified to answer. This was the situation in the British Columbia case, Feldstein v. 364 Northern Development Corporation.

In the Feldstein case, the company made a representations about their disability benefits plan to a sought after candidate. The candidate in question had cystic fibrosis, and anticipated the need for long term disability benefits at some point in the future. He inquired in detail about the company’s plan because this was a very important aspect of his employment compensation, given his condition.

The employer misrepresented the plan, and the employee was later unable to get the LTD benefits he had been assured existed. The company was found liable for the tort of negligent misrepresentation.

Negligent misrepresentation will be made out where:

1. A duty of care is established between the parties:

Employers do owe a duty of care to employees so this is easily established.

2. The representation or statement in question was untrue, inaccurate, or misleading:

The statement with respect to the benefits was inaccurate.

3. The employer acted negligently in making the representation:

The employer should not have answered a detailed question about benefits, but deferred to the benefits provider for clarity.

4. The employee reasonably relied on the negligent misrepresentation:

The candidate in this case took the job only after assurances were provided with respect to the benefits plan. The court concluded that the reliance on the information provided was reasonable.

5. The reliance resulted in damages to the employee:

The employee was unable to get the LTD benefits that he anticipated. The court concluded that he would not have accepted the job but for the inaccurate information provided.

The trial judge awarded Feldstein C$83,336.80 as compensation for lost LTD benefits and $10,000 for aggravated damages.

The British Columbia Court of Appeal upheld the damages award for loss of benefits, but overturned the $10,000 aggravated damages award.

Tips for the Hiring Process

The takeaway from this case is to be careful what you say to candidates during the hiring process. When in doubt, information should be verified before is it shared, and in some cases the hiring team may need to outsource specific questions to ensure that the information provided is accurate.

Drug Policies

Photo Credit - Get Budding on Unsplash

Photo Credit – Get Budding on Unsplash

I blogged about pot in the workplace early this past August – see my post here. The legalization of marijuana made the news again, as Ontario announced its plans with respect to how the legal sale of marijuana will be practically rolled out. Basically, the LCBO will run 150 retail outlets selling marijuana, and it will also be available to purchase online. The mom and pop marijuana dispensaries, which have always been illegal, will continue to be illegal.

Based on my own observations it seems like there are a lot more than 150 of these illegal dispensaries, and it is hard to imagine that 150 government run stores will be able to meet the clear market demand. Concerns have been raised that the black market will continue to flourish, even once these new legal stores open.   

Ontario also announced last week that, for now, legal use of recreational cannabis will be confined to private residences.  Similar to alcohol, it will not be allowed in public places or workplaces.

As I discussed in my previous post, workplace policies may need to be updated based on the changes to the law.

While drug laws in this country seem to be softening, a decision from the Supreme Court of Canada this June seems to have given drug policies more teeth. In Stewart v. Elk Valley Coal Corp the court upheld the termination of an employee for a one time breach of the employer drug and alcohol policy. In the past, a one time breach has rarely justified with cause termination.

The policy in question required employees to disclose any addictions prior to the occurrence of a drug or alcohol related incident. The policy specified that those who did disclose would be supported with treatment, and that those who did not disclose, but subsequently tested positive for drugs or alcohol could be terminated.  

In this case the employee, Stewart, who held a safety sensitive coal mining position, did not disclose his addiction, was involved in a workplace accident and subsequently tested positive for cocaine. During the investigation following the accident Stewart disclosed that he thought he was addicted to cocaine. Elk Valley terminated Stewart’s employment, in accordance with the terms of its policy.

Stewart brought a human rights complaint on the grounds that he was terminated for his addiction, constituting discrimination on the basis of disability under the Alberta Human Rights Act, RSA 2000.

The Alberta Human Rights tribunal held that Stewart was terminated for breaching the company policy, and not because of his addiction, and in the alternative, that discrimination was permissible where there was a bona fide occupational requirement.

Stewart argued that part of his addiction was a denial of his addiction, and therefore it was his addiction that prevented him from complying with the policy with respect to disclosing his addiction. On this point the Tribunal stated, and the Supreme Court agreed, that while he may have been in denial about his addiction he knew that he should not take drugs before working and had the ability to decide whether or not to do so, as well as the ability to disclose his drug use to his employer (and comply with the policy). Denial about his addiction was thus deemed irrelevant.

The Tribunal reached the decision that there was no prima facie discrimination and that the mere presence of an addiction does not establish prima facie discrimination.Stewart appealed to the Court of Queen’s Bench and to the Alberta Court of Appeal, both courts dismissed the appeal. The Supreme Court also upheld the Tribunal’s decision in an 8/1 split.

In many cases, where there is an addiction related issue in the facts with respect to a termination, employers may have felt hamstrung. This case indicates that where the policy is clear, and where the employee has the capacity to comply with the terms of the policy (addicted or not), a termination can be justified.   

Parental Obligations in the Workplace

Photo Credit - Daiga Ellaby on Unsplash

Photo Credit – Daiga Ellaby on Unsplash

For many of us who are parents, September feels like the real New Year.  Workplace issues can arise with respect to shifting childcare obligations, as kids transition from summer schedules to school schedules. Employers may be met with requests to accommodate worker childcare obligations or requests for time off and should be prepared with respect to how to handle these issues both practically and legally.

I’ve blogged about family status accommodation in the past – see my posts here and here. As people delay having children until later in life and once they have more established careers, employers are more likely to be met with requests for flexibility, accommodation and time off from key personnel or managers. Our aging population also means that the demands on many of us, to look after both parents and children, are increasing.

How should an employer respond if an employee suddenly asserts that their normal work hours discriminate against them on the basis as their status as a parent? What if an employee suddenly requests previously unscheduled time off, asserting parental obligations? Here are some of the legal requirements.

Requests for Leaves and Time Off

Under the Employment Standards Act employers who have more than 50 employees are required to provide employees with personal emergency leave of up to 10 unpaid days for illness, injury, medical emergency or urgent matter relating to children and other dependant family members. The expected changes to the Employment Standards Act under Bill 148 are expected to make this leave available to all employees, not just those in workplaces of 50 or more. Additionally, the first 2 days of the leave will be paid days. Bill 148 would also extend the length of unpaid family medical leaves, which would be increased from the current eight weeks in a 26-week period, to 27 weeks in 52 week period. For more information on these changes see my post here.

Discriminating Against Parents

Family status is a protected ground under the Ontario Human Rights Code. Family status is defined as “the status of being in a parent and child relationship.” Employees may, for example, assert that their work schedule or location discriminates against them on the basis of family status where they encounter difficulty meeting their family obligations because of the requirements of their job.

As with other protected grounds employers have a duty to accommodate, up to the point of undue hardship. What exactly this means in the context of childcare has been a moving target in Canada and as with other forms of accommodation, accommodation of family status will look different, depending on the context.

The Legal Test

The current legal test is set out in the Misetich v Value Villages Stores case.  In short, the adjudicator required the employee to establish that he or she is a member of a group protected under the human rights code, has experienced adverse treatment, and that the ground of discrimination was a factor in the adverse treatment (paragraph 43).  The onus then shifts to the employer to establish that the employee cannot be accommodated to the point of undue hardship (paragraph 57).

The case confirmed that the family status test is similar to the discrimination tests set out for other protected grounds. For further details, see my past blog post on this case here.

Practical Tips for Accommodating Family Status

  • Once an employer becomes aware of their employees’ need for accommodation they have an obligation to assist the employee in finding a solution;
  • The employee must actively investigate solutions to their problem, beyond simply changing their work schedule, for example. While it may be an employee’s preference that they be able to pick up their children from school, this is not necessarily something that an employer must accommodate. While substantial childcare obligations must be accommodated, personal preference does not need to be;
  • If a change in the employee’s position or work hours will not cause undue hardship to the employer, it may be an appropriate solution. However, consider how other employees may be impacted; and
  • Always document conversations with an employee requesting accommodation. Include accommodations that were considered and if they were not adopted make sure the notes set out the reasons why.

Family status accommodation remains a relatively new area of discrimination under the Human Rights Code, and while employers continue to struggle with where is the legal, practical and morale line to draw, the one certainty is that employer have no choice but to engage in meaningful conversation, to determine whether the accommodation is required. Blanket denials for business needs are no longer an option.

Labour Day

Photo Credit - Aaron Burden on Unsplash

Photo Credit – Aaron Burden on Unsplash

The first Monday of September is Labour Day (Labor Day to our friends in the States). In Canada, this is a provincial statutory holiday, celebrated in all of our Provinces and Territories. Most businesses will be closed, with the exception of business that fall under provincial retail business holiday acts, such as tourist destinations and many restaurants.

Both in the US and Canada, Labour Day is a day inspired by union efforts to improve the rights of workers. For our US readers interested in learning more about the origins of Labour Day in Canada, I recommend this Canada’s History article.

For more information about Overtime and Statutory Holidays see my post on this topic here.

Transgender Rights and Employer Responsibilities

Trans rights have been in the news a lot lately. During his eventful tenure, President Trump has eroded existing protections for transgendered individuals in the United States. This winter he removed protections for transgendered students in public schools that allowed them to use the bathroom of their gender expression, and not their physical sex. At the end of July, he announced, via Twitter, that transgender individuals would not be permitted in the US military in any capacity.

Rights for Transgendered People in Canada

Photo Credit - Cait's Cafe, Goderich ON

Photo Credit – Cait’s Cafe, Goderich ON

While such protections have been reversing south of the border, protections and recognition of trans-rights in Canada continue to increase. In June 2017, the federal government passed Bill C-16, which added “gender identity or expression” to the Canadian Human Rights Act, and to the hate crimes and sentencing provisions of the Criminal Code. Notably, every province and territory already had these protections in their respective Human Rights legislation, so this move by the feds closes the loop. Indeed, the pioneering Northwest Territories has had gender expression protections in place since 2002!  

Comments in opposition to the Bill included concerns over being penalized criminally for misusing gender neutral pronouns – this is not illegal – and that the Bill would allow those with male genitalia access to female only spaces, possibly endangering women.  This concern has never been supported by evidence, and if anything transgender people face the greatest risk of violence and harassment in sex-segregated spaces.

Supporting Transgendered Employees

Canadian employers are expected to making workplaces safe for trans-people. Areas to consider include:

  • Ensuring the availability of a safe and comfortable washroom;
  • Removing barriers with respect to employer forms or IDs that collect information on sex, and have only gender binary options (M or F);
  • Reviewing content of background checks to ensure they do not “out” employees who have undergone a gender transition;
  • Reviewing uniforms or dress codes policies, although by now, employers are hopefully aware that any sex-based difference in dress code must be legitimately linked to the requirements of the job. If this cannot be shown (it’s unlikely it can), then the dress code is discriminatory anyway.

In all circumstances employers need to be sensitive to their employees safety, and take care to not discriminate against employees who identify as non-binary.

Transgendered Policies

The Ontario Public Service set a good example in 2016 when it instituted a new Gender Identity Policy. This policy limited circumstances in which biological “sex” information could be collected, and instead asks employees about their “gender identity” when necessary. Three options are given with respect to gender identity for display on employee IDs M, F and X for those employees who are trans, identify as non-binary or simply prefer not to say.

Employers should take a look at their policies and practices to ensure that they are not unwittingly discriminating against current or potential employees. If you need help understanding your obligations, or overhauling your practices, we would be pleased to assist.  

PHIPA Fines in the Workplace

Photo Credit - Brandon Morgan

Photo Credit – Brandon Morgan

This spring the largest penalty to date was issued under Ontario’s Personal Health Information Protection Act (“PHIPA”). A social work student was convicted of accessing personal health information without authorization, and ordered pay a $20,000 fine and a $5,000 victim fine surcharge after pleading guilty to “willfully accessing the personal health information of five individuals.”

The breach took place in Goderich, Ontario’s prettiest town, where the student was completing a placement with a family health team. The student also admitted that she had accessed the personal health information of 139 individuals, including that of her family, friends, local politicians and the staff of the clinic. No doubt she had an interesting time doing so, but this fine sends a strong message that employees must keep their curiosity in check. Previous fines include two in the amount of $2,505, which were issued 2016 to two hospital workers in connection with breaches of former Toronto Mayor Rob Ford’s health information during his cancer treatment.

In our digitizing and digitized workplace privacy is always a hot topic, but privacy laws in Canada remain spotty. Currently broad privacy legislation only applies to the federal sector workplaces (banks, tele-com, shipping, mail etc.) via the Personal Information Protection and Electronic Documents Act and the Privacy Act. In Ontario, health information is governed by PHIPA, but most other workplace related information is not subject to any regulation.

Despite the lack of clear legislative guidance in many arenas, employers should have privacy policies in place with respect to private employee and customer information. Policies should also specify consequences in the case of a privacy breach, or inappropriate employee snooping. Remember, there is now a common law tort of invasion of privacy, “intrusion upon seclusion,”  and clear policies and appropriate employee training will go a long way in protecting employers from the potential for vicarious liability.

As always, a balance must be struck between an organization’s need to collect, use and disclose personal information and an individual’s right to privacy.

Examples of good practices are:

  • Designating one person as responsible for personal information
  • Clearly identifying the purpose for the collection of information
  • Obtaining consent before information is collected
  • Collecting only necessary information
  • Disclosing and retaining information only as necessary
  • Employees must be permitted to access their own information

Millennial employees, who have grown up with social media, may have a different conception of privacy than that expected by the culture of the organization. Clear communication, and documentation, around what is expected is crucial.  

At SpringLaw, we regularly advise on privacy, technology and how to make workplaces work for everybody. If you think your workplace might need a privacy overhaul, or you just need some general advice, give us a call.

 

Pot in the Workplace

Photo Credit - Get Budding on Unsplash

Photo Credit – Get Budding on Unsplash

Marijuana has been legal for medical use since 1999. As you undoubtedly know, the Trudeau government has tabled legislation that would expand legal use to the recreational sphere. Employers need to be prepared for how the potential legalization of recreational marijuana will impact the workplace.

Background on the Bill

Here’s a little background on the Liberal Bill – Bill C-45, the Cannabis Act, was introduced by Minister of Justice Jody Wilson-Raybould (she’s from Vancouver) in April. In June it passed second reading and was referred to the Standing Committee on Health. The Committee is expected to begin hearings on the Bill in September.  Anyone wishing to participate in the process can make a submission to the Committee.

The Bill would allow for legal possession of up to 30 grams of cannabis by those 18 and older. Individuals will also be allowed to grow up to four cannabis plants in their homes, though these must be under one metre tall.  Because sale and distribution of marijuana will now be regulated, anything to do with illegal marijuana will remain illegal.

Impact in the Workplace

So what will this all mean for the workplace? Many employers will already be familiar with the need to accommodate the use of medical marijuana in the workplace, where an employee uses it to treat an illness or injury falling under the definition of disability in the Human Rights Code.

An addiction to marijuana can also fall under the definition of disability and require accommodation. This does not mean that employers must permit employees to be impaired by marijuana while at work – accommodation must always be balanced with safety, and is required only up to the point of undue hardship.

Practically speaking, employers need to be prepared to handle the presence of marijuana in the workplace. Employers should make themselves aware of the signs of marijuana impairment. Employees have never had the right to work while impaired, and the Cannabis Act won’t change that. Workplace policies may need to be amended. For example if a workplace policy prohibits employees from drinking alcohol on the job or at lunch, it will also need to prohibit them from using cannabis during work hours or on breaks. On the flip side, policies that prohibit recreational marijuana use, due to its illegality, will need to be updated.  

Monitoring Marijuana in the Workplace

Marijuana impairment can be difficult to detect, especially with the rise in popularity of odourless edibles.

Along with Bill C-45 came Bill C-46, which would change impaired driving laws in preparation for the legalization of marijuana. Testing for impairment by marijuana is tricky, as drugs metabolize differently from alcohol, and can remain detectable in the body long after the effects have passed. This is one of the reasons why the caselaw tends to treat the detection of drug and alcohol impairment differently. Bill C-46 would give peace officers the power to demand a bodily sample from drivers suspected of impairment.

I will address the nexus between recent caselaw on random drug testing in the workplace and the legalization of marijuana in a later post, as it’s sure to be a hot topic post July 1, 2018, the date Trudeau would like the new legislation to be in place.

Bill 148 Fair Workplaces Changes: Unionized Workplaces

Over the last several weeks I’ve laid out some of the changes that will affect workplaces governed by the Employment Standards Act, 2000 (ESA). In this post I’ll touch on how Bill 148 proposes to change the legislation that governs the business of unions, the Labour Relations Act, 1995 (LRA). Like the proposed changes to the ESA, the overall tone of these changes is pro employee/union.

Photo Credit - John Salvino

Photo Credit – John Salvino

Certification Process

Many of the changes involve the certification process, which is the process by which a workplace or group of workers becomes unionized. Certifications can be a shifty business, and historically both employers and employee organizers have been known to play dirty, or skirt the rules. The proposed amendments aim to combat some of these issues. Here are some of the proposed changes:

  • Under the revised LRA the Ontario Labour Relations Board (OLRB) would be able to order the employer to provide the union with a list of employee names and contact information, where the union can demonstrate that at least 20% of the organization’s employees are already members of the union. Having names and contact information would make the certification process easier for the Union;
  • Following certification, first contract arbitration would be streamlined and include a mediation requirement;
  • Certification in the temporary help agency industry, the building services sector and home care and community services industry would be “card-based.” Card-based certification, whereby employees express their wish to join the union by signing a card, is favoured by unions. In vote-based certification, employees sign a card and then a secret vote is held. Unions have argued that the time in between the signing of the card and the vote gives employers an opportunity to coerce employees into voting against unionization;
  • Under the proposed amendments, unions would be more easily able to certify where the employer engages in misconduct that contravenes the LRA;
  • The OLRB would have the power to conduct certification votes electronically and by telephone;
  • Labour Relations Officers would be authorized to give directions regarding the voting process to assure neutrality; and
  • Employers would not be able to discipline or discharge (without just cause) any unionized employee during the period in between certification and conclusion of the first contract.

Discipline/Discharge Freeze

Similar to the freeze during the negotiation of the first contract, employers will also not be able to discipline or discharge (without just cause) any unionized employee between the date at which the employees are in a legal strike or lockout position and the execution of the new collective agreement. Most collective agreements contain “just cause” protection, that does not allow employers to terminate employees but for “just cause.” This change extends that protection to periods where there is no collective agreement in force.

Successor Rights in Building Services

An interesting change relates to the extension of successor rights to instances where building services are re-tendered. Building services are services such as cleaning, food and security services. The change will make it easier for unions to retain bargaining units when work is re-tendered and a new provider chosen. For example, if unionized staff provide the security services at a building, when the security services contract is retendered any existing bargaining rights and collective agreements applying to the previous security staff will transfer to the new provider of those services. This could temper service providers, who do not have unionized employees from bidding on work in buildings with existing union relationships.

Structure of Bargaining Units

The proposed legislation would allow the OLRB to change the structure of bargaining units where one employer has multiple bargaining units, all within the same union.

In order for the OLRB to review and potentially consolidate bargaining units, the following conditions must be met:

  • The application requesting the review is made at the time of the certification application, or within the subsequent three months;
  • No collective agreement can have been entered into yet; and
  • The trade union certified, already represents employees of that employer in another bargaining unit.

Upon application, and if the above conditions are met, the OLRB would have the power to consolidate bargaining units, amend the description of the bargaining unit, direct which collective agreement will apply, with or without modification, and amend the collective agreement in order to ensure the consolidation works in practice.

The impact of this change will likely be that the OLRB will more easily certify small and fragmented bargaining units, which previously would not have been appropriate candidates for certification.

Notably, these new powers would not apply to the construction industry.

Return to Work from Strike

This proposed change would remove the six-month limitation under which striking employees can apply to return to work. Employers will be required to reinstate employees at the conclusion of lawful strike or lockout and employees will have access to arbitration if there is any refusal to reinstate an employee.

Maximum fines under the LRA would increase to $5,000 for individuals and $100,000 for organizations (up from the current $2,000 for individuals and $25,000 for organizations).

This concludes my series on Bill 148 for now. As always we will keep you posted as to what happens through the public consultation process and when the legislature gets back to work after the summer break.

 

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