Federal Sector Update John D. R. Craig Christopher D. Pigott

Transcription

1 Federal Sector Update 2017 John D. R. Craig Christopher D. Pigott

2 Federal Landscape in 2017 Key Developments 1. Significant Legislative Changes 2. OHS Inspection Obligations 3. Scope of the Right to Represent 4. Important CIRB Case Law 5. Looking Ahead

3 Legislative Action Bill C-4 (June 22, 2017) Reversed the changes to union certification and decertification processes made during Conservative Government Card-based certification if union has support of more than 50% Vote if union support between 35% - 50% De-certification vote if support of 50% + 1 Into force on June 22, 2017

4 Legislative Action Bill C-44 (Royal Assent - June 22, 2017) New Powers for the CIRB Transfer of powers from appeals officers (Part II) and referees/adjudicators (Part III) Administrative Monetary Penalties Penalty system to promote compliance with Parts II and III Reprisal Complaints Express prohibitions on employer reprisals

5 Legislative Action Bill C-44 (con t) Leaves of Absence Maternity Leave up to 13 weeks before due date (up from 11) Parental Leave up to 63 weeks (up from 37) Critically ill child leave now available to family members New critically ill adult leave Employment insurance changed to match leaves of absence

6 Legislative Action Federal Accessibility Legislation Areas to be addressed Employment Built environment Transportation Program and service delivery Information and communications Procurement Consultation completed May 2017 Legislation expected late 2017 or early 2018

7 Genetic Characteristics and Testing Canadian Human Rights Act amended to prohibit discrimination on the basis of genetic characteristics or refusal to undergo testing or refusal to disclose test results Canada Labour Code amended to: prohibit employers from requiring genetic testing or disclosure of genetic testing prohibit disciplinary action against an employee due to the results of a genetic test, refusal to undergo testing, or refusal to disclose test results provide for complaint mechanism

8 OHS Inspection Obligation CUPW v. Canada Post CUPW v. Canada Post Federal Court of Appeal July 2017 Issue: Is an employer required to ensure inspection of locations it does not control? Answer: YES? Justice Near: NO Justice Nadon: YES Justice Rennie: SOMETIMES SCC Leave to Appeal Application Filed in Sept. 2017

9 Union Representation Rights TWU v. TELUS Issue: Is a union entitled to notice, information and consultation in all accommodation cases? Arbitrator Chris Sullivan (2014): YES - Code principle of exclusive representation requires an employer to involve the union in the accommodation process in all cases BC SC (2015): Unreasonable Code requires union involvement only if (1) employer needs union agreement or (2) employee requests union assistance

10 Union Representation Rights TWU v. TELUS BC CA (February 2017): the pillar of reasoning supporting the entire arbitration decision that the collective bargaining authority of the Union compels its engagement in all requests for accommodation for medical disabilities is in error and is unreasonable BC SC upheld SCC (September 2017): Union s application for leave to appeal dismissed so the answer is NO

11 CIRB Procedure Rogers Communications Inc. Rogers Communication Inc. Federal Court of Appeal June 2017 Judicial Review of bargaining unit review Key Outcomes: CIRB is required to analyze major arguments raised by employer No requirement to apply for reconsideration prior to JR application

12 Essential Services & the Right to Strike ATU v. Outaouais Issue: Is a municipal transit authority an essential service under s of the Code? CIRB (March 2017) No Key Outcomes: No need to modify the current approach to s in light of the SCC decision in Saskatchewan Federation of Labour current approach already reflects the fundamental importance of the right to strike Employer must demonstrate that a strike without essential services would cause an immediate and serious danger to the health and safety of the public.

13 Looking Ahead More Legislative Change Convention 98 Revival of the Arthurs Report Pay Equity Legislation

14 John D.R. Craig Partner jcraig@fasken.com Christopher D. Pigott Partner cpigott@fasken.com

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