General Labour News Updates

Criminal Charges following Bill C-45

However, since the enactment of the legislation, there has only been one charge under this section of the criminal code, a charge which was eventually withdrawn as part of a broader plea agreement.  Lawyers Weekly reported that a second charge has recently been laid against a Quebec company in relation to the death of a worker who was fatally injured after being crushed by heavy machinery.   If the matter proceeds to trial, the court may define what is meant by the requirement that the employer take reasonable measures to protect employees and public safety.

October 2006

Changes to the Human Rights Code - Bill 107

The Standing Committee on Justice Policy is now calling for requests by organizations and individuals to make submissions on Bill 107, An Act to Amend the Human Rights Code.   If you need any assistance in preparing submissions, please do not hesitate to call our office.

September 2006

Retirement Mandatory no more in Ontario (well almost)

The Ontario government  legislation that eliminate mandatory retirement at age 65 becomes effective in December 2006.  The legislation amends the Human Rights Code to extend protection against discrimination on the basis of age to people 65 and older.   Critics of the legislation warn that this may be the thin edge of the wedge and could result in employees being expected to work until age 67 or more before they can access government benefits, or may undermine early retirement plans or existing pension plans. 

Alberta, Manitoba, Quebec, Prince Edward Island, the Yukon and the Northwest Territories have all banned mandatory retirement.

September 2006

Ontario Health Premium Issue Still Undecided

After a year and a half of arbitral jurisprudence regarding the issue of an employer’s responsibility to pay the new Ontario Health Premium on behalf of its employees, there is still no consensus amongst arbitrators. Although the majority of arbitrators have found that employers are not responsible to pay the premium, even where the collective agreement specifies that the employer is required to pay OHIP premiums and/or other government levied health premiums, the issue is by no means decided, particularly as most of the early decisions are heading to judicial review.  The first decision, Arbitrator Barrett's decision in Lapointe, was recently upheld on judicial review, as was Arbitrator Goodfellow's decision in Hamilton Firefighters; Arbitrator Harris' decision in ATU Local 113 and Herlich's decision in National Steel.    However, Arbitrators Shime and Whitaker's decisions in OPSEU have also been upheld.  Other court decisions are expected to be released soon and given the high standard of review for arbitral decisions in Ontario, it is unlikely that the decisions will be overturned by the Divisional Court.

The OHIP premiums referenced in a number of collective agreements were first introduced in 1972. It was common for employers and employees to have agreements that the employer would pay all or part of the premiums. In 1989, OHIP premiums were replaced by a payroll tax called the Employer Health Tax that was to be paid by the employer only. Although individual employees were no longer required to pay any government levied health premiums, many unions maintained provisions in their collective agreements that required the employer to pay the OHIP premiums.

The Ontario Health Premium (OHP) which was introduced by the Liberal government to take effect July 1, 2004, is arguably the return of government levied health premiums. The OHP is collected as a withholding tax by employers in a manner similar to employment insurance premiums and the rate paid is based on an individual’s taxable income. Because the OHP is collected by employers as a withheld tax rather than as a premium paid by an individual, many employers contend that even where collective agreements obligate the employer to pay health premiums, the employer is not responsible for paying the OHP "tax." The Liberal government has been uniformly unhelpful in this matter, repeatedly siding with employer and stating that the OHP is a "tax" (despite the fact that it is called a premium) for which individuals, not employers are responsible for paying.

Many arbitrators have found the fact that the OHP is collected as a tax conclusive reasoning as to why employers are not on the hook for the OHP premium. Others have not. Other arbitrators have determined that whether the OHP is a premium or a tax is completely irrelevant and have focused on the collective agreement language instead. In decisions in which the arbitrators focus on the collective agreement language, the usual conclusion reached is that the employer is responsible for paying the premium.

Perhaps the most helpful decision for union is one of the most recently issued ones. In Ontario Power Generation and Power Workers Union (unreported) May 25, 2005 (Swan), Arbitrator Swan concluded that the Employer was responsible for paying the OHP on behalf of employees to the extent that the OHP was based on the earnings with the Employer only. Arbitrator Swan commented:

the correct way to look at this issue is to consider what reasonable parties in the position of the Employer and the Union must have intended when they negotiated the language in the current collective agreement. Obviously, that renegotiation took place in a universe where there was no existing OHIP premium, and where OHIP was funded by the employer health tax. At the same time, however, the language chosen must have been informed by the fact that at one time there had been an OHIP premium. In my view, reasonable parties in their position would have intended that, should some government initiative in the future require that a payment for OHIP insured services be required of individual employees, the Employer would be responsible to pay that on behalf of the individual employees, provided that it was materially and reasonably similar to the OHIP premium payable prior to 1989. If the parties intended that only the reinstatement of the previous OHIP premium in identical terms would trigger the clause, they could have expressed that in the language chosen, as did the parites in the two College Compensation and Appointments Council cases. Rather, they continued to use language which in general required payment of 100% of the "premiums" for OHIP. [Emphasis added]

This is exactly the decision that trade unions have been attempting to make for the past year: it is irrelevant whether the premium is a "premium" or a "tax". The key issue should be the intention of the parties when the clause that requires the employer to pay health premiums was negotiated as part of the collective agreement. If the parties intended that the employer would pay government health levies, the employer should pay the OHP, regardless of the mechanism that the government uses to collect the premium.   This decision was heavily relied upon by the Divisional Court in its decision in Lapointe Fisher.  Unfortunately, Arbitrator Swan's decision has been taken to task in a number of subsequent decisions, including several decisions of Arbitrator Burkett in which he found the Employer was not responsible for paying the OHP.

While the majority of arbitrators have concluded that an employer is not required to pay the OHP on behalf of its employees, this matter is by no means settled, particularly given the number of decisions proceeding to judicial review. Furthermore, as increasing numbers of collective agreements come up for negotiation, this is also becoming a hot bargaining issue for the parties. It will be some time before it is clear whether or not employers are responsible for paying the OHP where the collective agreement contemplates employers paying the old OHIP premiums. At this time the only determining factor appears to be which arbitrator is chosen to interpret the collective agreement.

A summary of the Ontario Health Premium Decisions may be found at: www.watsonlabourlaw.com/page12.html

April 2006

"Grinch of the Year" one of Canada's Best Employers?

Wal-Mart, a company twice named "Grinch of the Year" and constantly under attack for its poor employment practices and vehement anti-union stance, is apparently considered to be one of Canada's best employers by The Canadian Institute.   Advertizing its conference on Winning HR Practices of the Best Employers in Canada, The Canadian Institute noted its speakers list would include representatives from not only Wal-Mart, but other equally anti-union companies with questionable working conditions including McDonalds.   Letters and e-mails indicating your disbelief that such companies would be considered appropriate candidates for this discourse should be sent directly to the Canadian Institute.   http://www.canadianinstitute.com/Contact_Us.htm

February 2006

Ontario Courts uphold law denying agricultural workers the bargaining rights

An Ontario Superior Court judge ruled that the Agricultural Employees Protection Act does not offend s. 2(d), s. 9, s.10 or s. 15(1) of the Charter.  The law, enacted by the Conservative government in 2003 in response to a 2001 Supreme Court of Canada decision directing the government enact legislation that allowed agricultural workers to organize, allows Ontario workers to form "employee associations" and to "make representations" to employers, but does not provide a framework for meaningful collective bargaining.   The challenge to the Agricultural Employees Protection Act was brought by three Ontario farm workers and backed by UFCW Canada.   In dismissing the application, Justice Farley found that the impugned legislation provided adequate protection to the farm workers' freedom of association given that he did not believe that a full collective bargaining regime was a necessary component of that freedom.   There was no prima facie case of discrimination against the workers, although he did concede they were "poorly paid, face difficult working conditions, have low levels of skill and education, low status and limited employment mobility."  He also recommended a "wait and see" approach in relations to the Agriculture, Food and Rural Affairs Appeal Tribunal's competence in matters of labour relations, suggesting that the applicants' attack on the tribunal was "premature and unfair."

UFCW Canada appealing the decision to the Ontario Court of Appeal.

February 2006

Minimum Wage to be Raised in Ontario

The hourly minimum wage in Ontario, now $7.45, will be raised to $7.75 effective February 1, 2006.   It will increase another 25 cents on February 1, 2007 to $8.00.   For Ontario students under 18 years old working less than 28 hours per week, the minimum wage of $6.95 will rise to $7.25.   Liquor servers' minimum hourly rate will go up by 25 cents to $6.75 per hour.

While Watson Labour Lawyers congratulates the Ontario government for keeping its promise to raise the basic minimum wage to $8.00 per hour by 2007, our position remains that the minimum wage in Ontario is inadequate.  A family where the main income provider earns the minimum wage or slightly higher will still not earn enough to live above the poverty line.   Differential wages for minors and liquor servers is also inappropriate.  

January 2006