Posted: April 14th, 2015

Occupational Health and Safety Legislation

Topic 1: Occupational Health and Safety Legislation—Creating a Safe Work Environment

The Legal Framework in Canada

The Constitution Act of 1867 gives each of the Canadian provinces and territories the power to legislate in relation to employment law for all those who are not employed by the federal government or not employed in federally legislated industries such as banks and airlines. Each of the jurisdictions is responsible for laws pertaining to human rights, employment standards, labour relations, health and safety, employment equity, and other employment-related legislation. According to your textbook, approximately 90 per cent of Canadian employees are covered by their respective provincial legislation, while the remaining 10 per cent are covered by federal legislation. Although there is a great deal of commonality between jurisdictions, there are differences.

In providing a safe work environment, Canadian employers are governed by both provincial and federal legislation.

Definition

Occupational health and safety legislation refers to the laws intended to protect the health and safety of workers by minimizing work-related accidents and illnesses.

In Canada, the federal and provincial governments regulate occupational health and safety. The standards are very complex and detailed and are enforced through a system of workplace inspections. Occupational health and safety inspectors can issue citations and recommend penalties. We will now discuss both the federal and provincial regulations.

Federal Regulations

Canada Labour Code

The Canada Labour Code (Part II Occupational Health and Safety) at http://laws-lois.justice.gc.ca/eng/acts/L-2/page-53.html#h-46 sets out the minimum standards for safety and health in the workplace that are to be followed in each of the provinces. This piece of legislation also sets out certain rights that apply to all employees under federal jurisdiction:

• The right to know about hazards in the workplace
• The right to participate in correcting those hazards
• The right to refuse dangerous work

This legislation also covers the role that health and safety committees should play in the workplace, the roles and responsibilities of health and safety officers, and the methods to be used for determining if work is hazardous.

Canadian Occupational Safety and Health Regulations (COSHR)

Additional federal regulations are contained in Canadian Occupational Safety and Health Regulations (COSHR). Workplaces under the jurisdiction of COSHR include those of federal employees, railway workers, banks, telecommunications workers, and waterfront workers. Workers covered under COSHR are not under the jurisdiction of their provincial Workers’ Compensation Board, but some federal programs, such as Workplace Hazardous Materials Information System (WHMIS) at http://www.hc-sc.gc.ca/hecs-sesc/whmis/index.htm are enforced by the provincial compensation board.

Federal Workers’ Compensation Service

The Federal Workers’ Compensation Service provides compensation benefits and services to employees of the federal government and certain other groups for work-related accidents and occupational diseases. This is regulated by the Government Employees’ Compensation Act at http://laws-lois.justice.gc.ca/eng/acts/G-5/

Provincial Regulations

Workers’ Compensation Board

WorkSafe BC (the Workers’ Compensation Board of British Columbia), is an independent Crown corporation that implements and enforces occupational safety and health regulations in the province. It is financed by assessments collected from employers in the province. Employers register with the WCB, and registration provides workplace insurance coverage for both employer and employee .

Workers Compensation Act [RSBC 1996] Chapter 492

http://www.bclaws.ca/EPLibraries/bclaws_new/document/ID/freeside/96492_00

Each province passes legislation that defines the power of its workers’ compensation board. In British Columbia, the main piece of legislation that regulates safety and health in the workplace is the Workers Compensation Act.

The Workers’ Compensation Board can develop, implement, and enforce regulations for health and safety in the workplace. Workplaces are inspected to ensure that the regulations are being complied with. In BC, WCB officers can enter any workplace during normal working hours to conduct inspections. Unlike OSHA (Occupational Safety and Health Administration) officials in the United States, they can enter a workplace without a search warrant.

Obviously, you need to be aware of what is in the health and safety regulations if you’re going to comply with them.

Activity 1: Occupational Health and Safety

Introduction

The Human Resources and Skills Development Canada (HRSDC) website at http://www.hrsdc.gc.ca/eng/home.shtml provides up-to-date information on all matters relating to labour and the workplace. The purpose of this exercise is to introduce you to governmental sources of information governing Occupational Health and Safety (OHS) and to provide you with guidelines for establishing an OHS program in your workplace.

Instructions

Part A: Reading

Read the “Basic Facts about Occupational Health and Safety Legislation” on pages 317–327 of your textbook to gain an overview of legislation governing OHS in the workplace.

Read pages 327–332 of your textbook on management commitment, what causes accidents, and how to prevent accidents.

Part B: Research

1. Visit the Human Resources and Skills Development Canada (HRSDC) website at http://www.hrsdc.gc.ca/en/home.shtml
2. Click “Topics” link under the “Explore the site” heading on the navigation bar on the left.
3. Scroll down and click “Health and Safety in the Workplace” under the “Employment” heading.
4. Under “Laws and Regulations” click “Part II of the Canada Labour Code” (top) and familiarize yourself with this section.

Part C: In Your Journal

What are the main responsibilities of the employer and the employee under Canadian law? Note your answers in your journal and then check the answer key.

Show Answer

 

 

 

Topic 2: The Human Rights Code—Establishing a Positive Work Environment

A positive work environment is one that is free from discrimination, harassment, or violence. Such an environment allows employees to perform to the best of their abilities and develop to their fullest potential. Employers have a clear obligation to ensure that the workplace is free from harassment and discrimination so that employees are able to work productively, free from fear.

Canadian human rights legislation prohibits intentional and unintentional discrimination, both in terms of employers’ interactions with the public as well as in the employment relationship. All jurisdictions prohibit discrimination on the grounds of race, colour, religion or creed, physical and mental disability, sex, and marital status. Other forms of discrimination are prohibited in some jurisdictions but not all. For further information on federal and provincial human rights legislation, read pages 40–49 of your textbook.

Federal legislation and legislation in some other jurisdictions prohibits harassment on all prohibited grounds. Consider Figure 2.3 Examples of Behaviours That May Constitute Harassment on page 48 of your textbook. Something you may notice about this table is that harassment includes a wide range of actions and activities that were once tolerated, ignored, or considered innocent flirtation.

Sexual Harassment and the Law

To prevent sexual harassment from occurring in your workplace, or to deal effectively with it if it does occur, you need a clear understanding of exactly what constitutes sexual harassment and what the law has to say about it. It is important to note that the current legal definition of sexual harassment has evolved beyond its sexual aspects to include sexual annoyance. This includes sexually-related conduct that is hostile or intimidating to an employee and can lead to the development of a “poisonous work environment.”

Workers in BC are protected from unwelcome behaviour of a sexual nature by regulations in the British Columbia Human Rights Code, found on the BC Laws home page, http://www.qp.gov.bc.ca/statreg/stat/H/96210_01.htm . On the BC Laws website, click “Laws” on the top horizontal navigation panel and find “Human Rights Code [RSBC 1996] c. 209” on the Alphabetical Listing. Another good source of information about the Human Rights code harassment policies can be found at from the BC Ministry of Justice, http://www.ag.gov.bc.ca/human-rights-protection/pdfs/SexDiscrimination&Harassment.pdf

The BC Human Rights Tribunal (BCHRT), http://www.bchrt.bc.ca/, is the provincial body that tries to resolve complaints about actions that contravene the British Columbia Human Rights Code. The BCHRT does this through mediation between the parties, and if mediation fails, through a hearing procedure.

The law says that an organization can be held liable for harassment that occurs in its workplace. The harassment can be by co-workers, managers, or even clients of the organization. It is the obligation of every manager to protect employees and the organization by establishing a healthy work environment where people are respectful of one another and sexual harassment is not tolerated in any way.

Activity 2: Harassment and Discrimination Policies

Introduction

The purpose of this exercise is to introduce you to harassment and discrimination policies developed by the City of Vancouver and British Columbia Institute of Technology (BCIT), and to encourage you to think about the need for a formal policy governing discrimination in your own organization or any organization that is familiar to you.

Instructions

Part A: Research

Find the City of Vancouver’s Policies on Harassment by going to the City of Vancouver’s website home page at http://vancouver.ca, finding the “Your Government” tab on the top navigation and selecting “Corporate Policies and Procedures” under the “City Operations” heading from the drop down menu. From the “Corporate Policies and Procedures” page, you can search for “Harassment” policies using the “Find a Policy” search button and either browsing through the policies or by typing in harassment in the “By Content” search bar. Read through the harassment policy documents “Human Rights and Harassment Policy: Number AE-002-05” and “Respectful Workplace Policy: Number AE-002-06” and take note of the following aspects:

• The statement of the city’s commitment to maintaining a harassment-free environment
• The definitions of harassment, respectful workplace, and disrespectful behaviour
• Procedures for preventing harassment
• Procedures for reporting, investigating, and remedying it

For another approach, look at BCIT’s Harassment and Discrimination Policy on the BCIT website home page at http://www.bcit.ca/. Click the “About BCIT” on the top navigation bar, and find “Policies” under “Explore” on the drop down menu. Type “Sexual Harassment” into the “Search Policies and Procedures” search bar. Choose “Harassment and Discrimination, ” Policy No. 7507.

Part B: In Your Journal

1. Read through the examples of policies developed by the City of Vancouver and BCIT.
2. Investigate the policies and procedures that exist within your organization or collective agreement that deal with harassment. In your journal note any points you hadn’t been aware of. Could any aspects of the City of Vancouver or BCIT’s policies be used to improve the policies in your own workplace?
3. Briefly describe the methods (if any) that have been used to inform employees of your organization’s policies on harassment and discrimination. What steps would you suggest to management of your organization to promote awareness of these policies among employees? Write your ideas in your journal.

 

Topic 3: Foundations of Effective Employee Relations

HR managers play an important role in the process of establishing effective management and employee relationships. One of the ways that the HR department can do this is by playing a key role in keeping communication channels open, ensuring that managers know what is going on with employees (upward communication), that employees are kept informed about developments in the organization (downward communication), and that feedback reaches the appropriate decision makers. Having specialized knowledge of the legal framework, HR managers can assist in ensuring that employees are treated fairly, ethically, and legally. Thus companies can ensure effective employee relations by having good communication systems and engaging in fair, ethical, and legal treatment of employees. Clearly defined management and employee rights are essential.

Quite aside from legal constraints, employers must show employees that their policies and procedures are fair in order to foster improved commitment and to reduce grievances and morale issues. While it may not be possible to completely guarantee that employees are treated fairly, there are steps employers can take to move in that direction.

Activity 3: Foundations of Effective Employee Relations

Introduction

The purpose of this exercise is to introduce you to the ways in which organizations seek to ensure effective employment relationships and to encourage you to think about ways to improve employment relationships in your own workplace, or a workplace you are familiar with.

Instructions

Part A: Reading

Read pages 350–357 of your textbook, which include the following:

• “The Strategic Importance of Effective Employee Relations.”
• “Ethical and Legal Treatment”, including “Electronic Trespassing, and Video Surveillance and Employee Privacy.”

As you read, identify ways in which employers build and maintain effective employee relationships and note the rights of employers and employees that are outlined. Answer the Focus Questions below.

Part B: Focus Questions

Answer the following questions in your journal:

1. In what ways does your organization or an organization you are familiar with ensure effective employee relations?
2. Does this organization have a fair treatment program?
3. Does this organization have a written policy in place governing the monitoring of employee use of the Internet and email? What are your thoughts on this?
4. If this organization does not have a harmonious work environment, what advice would you give management to ensure a more effective employment relationship?

 

 

Topic 4: Labour-Management Relations

“Labour-management relations” refers to the ongoing economic and social interactions between labour unions and management in organizations. In Canada, the right of employees to organize is protected by law, and over two million Canadians are members of an organized union. As described in your textbook on pages 378–381, the primary goal of the labour unions active in Canada today is to obtain economic benefits and improved treatment for their members. These activities are known as business unionism.

Definition

Business unionism refers to the activities of labour unions focusing on economic and welfare issues, including pay, benefits, job security, and working conditions.

Specifically, unions strive to do the following for their members:

• Ensure job security.
• Attain improved economic conditions.
• Improve working conditions.

Managerial discretion in dealing with employees is greatly reduced in a unionized environment, as the employment relationship is governed by a collective agreement, which is the employment contract agreed on by the bargaining unit. In unionized environments, specialized knowledge is required within the HR department in order to effectively manage the employment relationship. Once a union has been recognized in a workplace, the industrial relations specialist within the HR department usually manages this relationship. In this topic section, we will discuss labour relations strategy, the labour relations process, labour bodies in Canada, and unfair labour practices.

Labour Relations Strategy

The kind of labour relations strategy present in any organization sets the tone for its union-management relationship.

Definition

Labour relations strategy refers to an organization’s overall plan for dealing with unions.

Over the years, unions have done a great deal to further the security and fair treatment of workers in an astonishing array of occupations. This progress has not been gained without job action and a certain amount of antagonism between unions and management. Employers would be wise to have a labour relations strategy that encourages co-operation rather than hostility.

Activity 4: Labour Relations

Introduction

The purpose of this activity is to examine the role of unions and their interactions with management.

Instructions

Part A: Reading

Read the “Overview of Labour-Management Relations,” “Canada’s Labour Laws,” and “The Labour Movement in Canada Today” on pages 378–385 in your textbook. Make sure you understand what unions do as well as the range of strategies adopted by organizations in relation to unions and the current challenges facing unions in Canada.

Part B: In Your Journal

There are four possible approaches to labour relations; how an organization deals with labour relations can result in a relationship ranging from hostility to co-operation. The four approaches are:

• Union acceptance
• Union avoidance
• Union substitution
• Union suppression

Determine which of these strategies seems to have been adopted in a firm in which you have been employed or a company with which you are familiar. Provide evidence to back up your answer.

Part C: Discussions

“If managers communicate effectively with employees, deal with their concerns, and treat them fairly, employees are far less likely to be interested in forming or joining a union.” Do you agree or disagree with this statement? Why? Post your thoughts to Discussions.

The Labour Relations Process

Even if your organization has been fair in dealing with its employees, the employees may still want to join a union or form their own union. The primary goal of labour unions in Canada is to obtain economic benefits and improved treatment for their members. For example, an employee may join a union for economic reasons, to benefit from:

• Higher wages
• Increased job security
• A clear path to advancement (often through seniority)
• Improved fringe benefits

But not all people join for purely economic gain. In fact, the reasons for joining may differ significantly from one person to another. Some non-economic reasons may include:

• Increased fairness in rules and promotions
• Better working conditions
• An opportunity to make formal complaints
• The feeling of belonging to a larger group with similar goals

The labour relations process involves a series of steps, beginning with the desire to unionize and ending with day-to-day contract administration. The union organizing process involves a series of steps as well, which typically includes: employee/union contact; an initial organizational meeting; the formation of an in-house organizing committee; and an organizing campaign. The outcome could be certification, recognition, or rejection. This is explained in detail in your textbook.

Activity 5: The Labour Relations Process

Introduction

This activity will provide you with an overview of the labour relations process.

Instructions

Part A: Reading

Read “The Labour Relations Process” on pages 386–405 in your textbook to gain a thorough understanding of the six steps of the labour relations process. As you read, attempt to answer the Focus Questions below.

Part B: Focus Questions

Answer the following four questions in your journal and then refer to the answer links to compare your answers:

Describe the purposes of collective bargaining and cite five examples of violations of the principle of bargaining in good faith.

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Answer

The purposes of collective bargaining include:

• Negotiating, “in good faith,” a collective agreement (contract) that describes the scope of management and union rights and responsibilities.
• Arriving at an agreement that is acceptable to management, the labour union representatives, and the other bargaining unit members.
• Developing a framework for labour relations (LR) in the organization, including a mechanism to resolve conflicts or disputes pertaining to the interpretation or application of one or more of the contract provisions.
• Specifying, in writing, the manner in which management and bargaining unit members will treat each other and conduct themselves during the term of the collective agreement.

Examples of violations of the principle of bargaining in good faith include:

• Surface bargaining, which involves going through the motions of bargaining without any real intention of reaching a mutually acceptable agreement
• Failing to make concessions or withdrawing previously granted concessions
• Failing to advance proposals and/or failing to advance realistic proposals
• Refusing to meet or using dilatory tactics, such as frequent postponement of scheduled sessions
• Imposing unreasonable conditions
• Making unilateral changes in conditions of employment during negotiations without consulting the union
• Refusing to negotiate with the selected representatives of the other party
• Committing unfair labour practices during negotiations
• Failing to provide information, upon request, that will enable the members to understand and intelligently discuss the issues raised in bargaining, or deliberately distorting information or misleading the other party (page 392)

Describe strategies used by the management and union negotiating teams to prepare for collective bargaining.

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Answer

Management’s Preparation Strategies: The organization’s labour relations specialists are generally the key players in management’s preparations. In addition to reviewing the strengths and weaknesses of any previous negotiating sessions, management’s preparations involve: reviewing the organization’s strategic plan; gathering data on general economic conditions, cost-of-living trends and wage rates for the general geographic area; conducting wage and benefit surveys of competitors and analyzing the organization’s ability to pay; analyzing other collective agreements, since they often provide a framework that one side or the other may seek to follow in negotiations; obtaining multi-employer coordination, if so desired (where legally permissible); obtaining supervisory input; reviewing the union’s organizing-campaign promises or the existing contract; conducting an audit and analysis of grievances; canvassing relevant arbitration awards and LRB rulings; costing any current contract provisions, as well as anticipated union demands; contingency planning for dealing with a bargaining impasse if it is deemed to be a possibility; preparing an initial bargaining plan and strategy; establishing a bargaining team; establishing bargaining guidelines that will provide a framework for the negotiating team and ensure that the chief negotiator has the authority to reach a settlement, and establishing a procedure to modify the guidelines, as circumstances dictate, once the negotiations are under way; finalizing bargaining strategy and proposals; and establishing strategies for communicating with senior management during negotiations.

The Union’s Preparation Strategies: The union’s preparation for negotiations involves a number of parallel steps: obtaining information on international or national union policy objectives; gathering data on general economic conditions, cost-of-living trends, and wage rates for the general geographic area; obtaining data on collective bargaining trends and settlements elsewhere; obtaining data about the financial state of the organization and its ability to pay; analyzing other collective agreements; obtaining input from stewards and chief stewards, as well as the central or regional office staff; obtaining input from the membership at large; gathering data about the demographic composition of the bargaining unit members; reviewing organizing-campaign promises or the existing contract; conducting an audit and analysis of grievances; costing any current contract provisions, as well as proposed demands; contingency planning for dealing with a bargaining impasse if it is deemed to be a possibility; establishing a bargaining team; and finalizing bargaining strategy and proposals.

Explain the following terms: bargaining zone, monetary issues, and non-monetary issues. What happens if bargaining items are outside of the bargaining zone? Why are non-monetary issues normally handled first in contract negotiations?

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Answer

Bargaining Zone The area defined by the bargaining limits (resistance points) of each side, in which compromise is possible, as is the attainment of a settlement satisfactory to both parties

Monetary Issues All bargaining items with direct cost implications, such as wages, overtime pay rates and shift premiums, changes in hours of work, vacation entitlement, and holidays

Non-Monetary Issues Bargaining items, such as contract language, procedural matters, and administrative issues that do not have direct cents-per-hour cost implications. They may, however, have indirect cost implications. If the solution desired by one party exceeds the limits of the other party, it is outside the bargaining zone. Unless that party modifies its demands sufficiently to bring them within the bargaining zone, or the other party extends its limits to accommodate such demands, a bargaining deadlock is the inevitable result. Typically, non-monetary issues are discussed first, based on the assumption that such items will be easier to resolve. Quick resolution of such items builds a pattern of give and take. When a deadlock subsequently occurs, the sense of past progress may increase the resolve of both sides to find a compromise. [Endnote: Popup Answer 3]

Differentiate between conciliation and mediation and explain the role of each in the collective bargaining process.

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Answer

Both conciliation and mediation involve the use of a neutral third party to help an organization and the union representing a group of its employees to reach a mutually satisfactory collective agreement, and are undertaken at the request of one or both of the parties involved, or at the suggestion of the Minister of Labour.

The law requires conciliation prior to a strike or lockout in many Canadian jurisdictions, whereas mediation is usually voluntary.

Conciliation is typically requested after the parties have been negotiating for some length of time to reach a first agreement or renew an existing one and are starting to reach a deadlock, or after talks have broken down. Mediators typically become involved during the countdown period prior to or during a strike or lockout.

The only means available to a conciliator to bring the parties to agreement is persuasion; he or she is not permitted to have any direct input into the negotiation process, nor to impose a settlement. The mediator’s role is an active one. It often involves meeting with each side separately and then bringing them together in an attempt to assist them in bridging the existing gaps. He or she is allowed to have direct input into the negotiation process but cannot impose a settlement.

In those jurisdictions in which conciliation is required by law, the conciliator must file a report with the minister at the end of the process, indicating whether he or she was able to help the parties to reach an agreement. Mediators are not required to file a written report.

In all jurisdictions except Saskatchewan, strikes and lockouts are prohibited until third-party assistance has been undertaken. (Conciliation is required in all but two jurisdictions.) In most jurisdictions in which third-party assistance is mandatory, strikes/lockouts are prohibited until conciliation efforts have failed and a specified time period has elapsed.

The aim of conciliation is to try to help the parties to reach a mutually satisfactory agreement, such that the hardship of a strike or lockout can be avoided. Whether the conciliator will be successful depends primarily on the extent to which the parties want to settle their differences.

Some jurisdictions have provision in their act for a two-stage conciliation process, involving the appointment of a three-person conciliation board if the conciliation officer fails to obtain a settlement. In practice, conciliation boards are not appointed and the conciliation process involves a conciliation officer alone. In such jurisdictions, the parties are in a legal strike or lockout position following a specified number of days (ranging from seven days to two weeks) after the Minister of Labour releases a “no-board report” (the report indicating that a conciliation board will not be appointed).

During the countdown period prior to a legal strike or lockout, or once a work stoppage has begun, the parties may request the assistance of a mediator.

Labour Bodies in Canada

The right of employees to organize is protected by law. The industrial relations specialist responsible for managing the relationship needs to be well-informed on the various labour bodies in Canada. This knowledge is also important for managers who act as the link between union workers and management. Some of the main bodies involved in labour relations issues and legislation in Canada include the following:

Canada Industrial Relations Board—The main body that oversees the handling of labour relations issues in Canada is the Canada Industrial Relations Board. In 1998, it replaced the Canadian Labour Relations Board (CLRB) as the quasi-judicial body empowered to deal with the Canada Labour Code (Part I, Industrial Relations, and portions of Part II, Occupational Safety and Health). The new board was designed to deal more effectively with questions and complaints related to labour relations. Its mandate is “to contribute to and promote effective industrial relations in any work, undertaking or business that falls within the authority of the Parliament of Canada.” For more information visit the CIRB website at http://www.cirb-ccri.gc.ca/.

Labour Relations Board (LRB), British Columbia—The British Columbia Labour Relations Code governs BC’s Labour Relations Board. It hears complaints under the code and assesses applications for union certification. It governs all aspects of collective bargaining among provincially regulated employers and the employees to whom the code applies. The LRB website at http://www.lrb.bc.ca/ contains a version of the Labour Relations Code. Click “Code” on the left navigation panel.

Canadian Labour Congress (CLC)—The Canadian Labour Congress is a labour advocacy group with international affiliations. It represents 2.3 million workers and seeks to improve wages and working conditions, though it lobbies on a wide number of other political and social justice issues as well. For more information visit the CLC Website at http://www.clc-ctc.ca/

BC Federation of Labour—The BC Federation of Labour has a mandate similar to that of the CLC, though on a provincial level. It works for the rights of union workers and other groups through lobbying and educational activities. It can help workers deal with such issues as workers’ compensation, organizing, and occupational health and safety. For more information visit BC Federation of Labour at http://www.bcfed.ca/.

The Canadian Union of Public Employees—Provides an extensive selection of union-related topics. For more information visit CUPE at to http://www.cupe.ca.

Unfair Labour Practices

To prevent employers from interfering with employee rights, the law prohibits specific unfair labour practices by management. Basically, managers are prohibited from interfering with and discriminating against employees who are exercising their rights under the labour relations legislation. The law also prohibits certain behaviour or actions on the part of unions.

Activity 6: Unfair Labour Practices

Introduction

The purpose of this exercise is to alert you to what constitutes unfair labour practice under Canadian law.

Instructions

Part A: Research

You will now learn about what constitutes unfair labour practices by reviewing information contained on the following websites and answering the Focus Questions. You may compare your answers.

Go to the Labour Relations Board website at http://www.lrb.bc.ca/. Click “Code Guide,” on the left navigation panel which contains the Guide to the Labour Relations Code – Province of British Columbia. Read Chapter 3: “Rights, Duties, and Unfair Labour Practices,” which provides information on what constitutes unfair labour practices.

Go to the BC Federation of Labour’s website at http://www.bcfed.ca/organize. Click the link “Basics” on the left to scroll down and read what employers can and cannot do during a union organizing campaign. This list is of course constructed from a labour perspective, but it can help get you thinking about what behaviour might be questionable.

Part B: Focus Question

Cite five examples of unfair labour practices on the part of management and five on the part of unions.

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Answer

Unfair Labour Practices—Management

• Interfering with the employees’ right to select the union of their choice for collective bargaining purposes or discriminating against employees for union activity. This means that employers cannot make promises that will influence the employees’ choice of union—for example, promising better benefits should the employees select one union rather than another or vote against a union; nor can they suspend, transfer, lay off, or otherwise discriminate against employees who want to unionize or who exercise any other rights granted under the LR legislation.
• Participating in the formation, selection, or support—financial or otherwise—of unions representing the organization’s employees.
• Unilaterally changing the terms of collective agreements or changing or threatening to change the wages and working conditions during certification proceedings or collective bargaining, if the purpose is to undermine the union.
• Refusing to bargain in good faith—that is, failing to make a serious attempt to reach a collective agreement.
• Imposing any condition in a contract of employment that would restrict an employee’s rights under the LR legislation.
• Suspending, discharging, or imposing any penalty on an employee for refusing to perform the duties of another employee who is participating in a legal strike.
• Intimidating or threatening an employee to compel that person to refrain from becoming or to cease to be a member, officer, or representative of a trade union.
• Bargaining collectively with a trade union if another trade union is the bargaining agent for that bargaining unit. (pages 380–381)

Unfair Labour Practices—Union

• Attempting to persuade an employee to become or continue to be a union member, at the workplace, during working hours, unless employer consent has been obtained.
• Interfering with or participating in the formation or administration of an employer’s organization, or contributing financial or other support to such an organization.
• Interfering with an employer’s selection of its collective bargaining representative.
• Refusing to bargain in good faith.
• Interfering with the bargaining rights of a certified union.
• Discriminating against union members or employees in the bargaining unit on grounds prohibited by human rights legislation.
• Intimidating or coercing employees to become or remain members of the union.
• Failing to provide fair representation for all employees in the bargaining unit.
• Calling or authorizing an unlawful strike, or threatening to do so, or disciplining members who refuse to participate in an unlawful strike. (page 381)

The Impact of Unionization on HRM

Unionization within the workplace impacts HRM and the way in which managers perform their HR responsibilities. Your textbook outlines the aspects of HRM affected by unionization, including:

• Organizational structure
• Management decision making
• Formulation of policies and procedures
• Record keeping
• Supervisory authority and responsibility

Clearly a harmonious and effective relationship between union and management leaders is in their mutual interest. For examples of healthy management-union relationship strategies refer to page 405 of your textbook.

 

 

Topic 5: Disciplinary and Grievance Procedures

Ensuring fair, ethical, and legal treatment of employees requires a thorough understanding of the legal framework governing the employment relationship. Different laws govern the employment relationship in non-unionized and unionized environments. For most people, their own province’s employment standards code governs the employment relationship.

When Something Goes Wrong in a Non-Unionized Workplace

One of the key documents governing the employment relationship in a non-unionized environment is the employment contract. This is a document that defines the terms of the relationship for both employer and employee and outlines their respective rights.

Sometimes, one of the parties does not live up to its side of the contract, and difficult decisions need to be made about what to do in these cases. This might lead to a disciplinary procedure or, in the extreme, dismissal. HR managers need to be meticulously versed in the correct procedures in order to avoid costly wrongful dismissal actions.

Activity 7: When Something Goes Wrong in a Non-Unionized Workplace

Introduction

The purpose of this exercise is to familiarize yourself with the correct procedures for acting when something goes wrong in a non-unionized employment relationship.

Instructions

Part A: Reading

Read “Fair, Ethical and Legal Treatment” and “Managing Dismissals” on pages 353–370 of your textbook. Note carefully the correct procedures surrounding disciplining or dismissing employees.

Part B: In Your Journal

Answer the following question in your journal and compare your answer with the suggested answer.

What are the four main reasons for dismissal?

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Answer

The four main reasons for dismissal are:

1. Unsatisfactory performance, defined as a persistent failure to perform assigned duties or to meet prescribed standards on the job. Specific reasons here include excessive absenteeism, tardiness, a persistent failure to meet normal job requirements, or an adverse attitude toward the company, manager, or fellow employees.
2. Misconduct, defined as deliberate and wilful violation of the employer’s rules and may include stealing, rowdyism, and insubordination.
3. Lack of qualifications for the job, defined as an employee’s incapability of doing the assigned work although the person is diligent.
4. Changed requirements of the job, defined as an employee’s incapability of doing the work assigned after the nature of the job has been changed or the job has been eliminated. In the latter two circumstances, every effort should be made to salvage the employee if at all possible, through retraining or a transfer, for example. (pages 360–367)

Part C: Discussions

Consider the following ethical dilemma and post your ideas to Discussions before comparing your response.

Is it ethical to apply disciplinary action in cases of ongoing absenteeism and tardiness due to family responsibilities? What other approach could be used?

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Answer

While firms cannot function if there are employees who are frequently late or absent, most will agree that disciplinary action should be a last resort, especially in cases where the underlying reason is family responsibilities or something of a similar nature, and not simply a lack of employee commitment or sense of responsibility to the firm. The approach taken will need to be individualized, based on the employee’s circumstances and needs. Sometimes, for example, a leave of absence may be the best solution—until the crisis at home has been resolved. In other situations, flexible hours or working shorter hours for a time may assist the employee to more effectively balance his or her work and family responsibilities.

When Something Goes Wrong in a Unionized Workplace

When something goes wrong in the employment relationship in a unionized environment, this is dealt with through a grievance procedure. Refer to the flow diagram in your textbook, Figure 12.5 A Typical Grievance Procedure on page 404.

As you will see from the flow diagram, the supervisor or manager is the first person to deal with a grievance. Once the employer accepts the grievance, the HRM professional or labour relations specialist plays a role, before bringing in senior management. We will begin by examining what a grievance is and clarifying the role of the supervisor or manager in the grievance process.

What Is a Grievance?

Definition

Typically, a grievance is a formal complaint made by the union asserting that there has been a violation of the collective agreement on the part of management.

When an employee and/or the union feels that the collective agreement is not being adhered to, the grievance procedure sets in motion a process for dealing with the complaint in a way that has been agreed to by both parties in the contract. This procedure will vary from organization to organization, but it is generally designed to be a fair and systematic way of dealing with employee complaints.

In the following example there are four steps in the formal grievance process. Although four steps are outlined, you can probably spot where the responsibility—and the opportunity—for an early settlement lies.

1. The shop steward (an employee of the organization as well as a union official), the employee, and the manager discuss the complaint.
2. The manager and the labour relations manager are brought in to discuss the complaint with the union grievance committee.
3. Members of senior management seek to resolve the issue with the national union representative.
4. The issue goes to binding arbitration, where an agreed-upon impartial third party dictates a settlement by which both parties must abide.

Manager’s Role

Managers can play a significant role in improving and maintaining union-management relations by paying close attention to differences that arise and making every attempt to settle them before they reach the stage of becoming formal grievances. The manager can play an important role in minimizing grievances through promoting mutual respect and keeping channels of communication open. The manager needs to understand the legal environment that unions and organizations operate in and must clearly recognize the role that he or she plays within a unionized organization. Managers need to be concerned for the welfare of staff, and when a grievance has merit, a manager should admit it and correct the situation. Passing the buck can have serious consequences. Decisions on what to do about a grievance should be based on the facts of the situation and a good working knowledge of the collective agreement.

Now go to the HR Tool Kit on Manager’s List of Do’s and Don’ts for Handling Grievances.

Working with the Shop Steward

One of the challenges facing managers is maintaining a productive and professional relationship with the shop steward. The steward is an employee of the organization as well as a union official. The shop steward is the representative of the union for a particular work unit. His or her role is to understand the collective agreement and ensure that the organization abides by the contract on a day-to-day basis.

This “watchdog” function can complicate the relationship if you are manager to the shop steward. The shop steward performs a key function for the union in monitoring adherence to the collective agreement. The shop steward is likely the individual with whom employee grievances will be filed. As a result, the shop steward is likely to take his or her responsibilities very seriously.

It is important to establish a good working relationship with the steward and to do your best to work through the inevitable conflicts that will arise as you attempt to interpret and follow the collective agreement. Keep in mind that the steward may represent many union members—a strong stand by the steward should not be taken as a personal attack.

Here are some recommendations for working with the shop steward:

• Do your best to keep the steward informed of any changes or intended changes in the workplace.
• Seek input from the steward where that input would be helpful, but balance this with how you need to run your department.
• Don’t avoid dealing with the shop steward; develop confidence and a good working relationship through regular communication.
• Show the shop steward that you understand the difficulty and the importance of his or her role, and help the steward understand yours.
• Demonstrate that you are able to compromise, but only in those areas that are under your authority.

Activity 8: Disagreement between Union and Management

Introduction

During the contract administration process, a number of disagreements may arise between union and management representatives that, if not handled correctly, can lead to grievances.

Instructions

Part A: Reading

Read “Step 6: Contract Administration” on pages 401–405 in your textbook and try to identify sources of potential disagreement between union and management.

Part B: Discussions

“Seniority and discipline issues are a major source of disagreement between union and management during the contract administration process.”

1. Discuss this statement and explain why these two issues often lead to grievances.
2. In the event of such a disagreement in your workplace, what advice would you give to prevent the situation from developing into a grievance procedure?

Post your answers in Discussions.

Job Action

A strike may occur if union and management fail to come to an agreement during the collective bargaining process. In order for a strike to take place, employees must take a vote and agree on that course of action.

Other forms of job action employees may use to communicate disagreement include the slowdown, in which employees remain on the job but significantly reduce their output; the sit-down strike, in which employees remain at the job site but do no work; and work to rule, in which employees work only the minimum required, refuse overtime, and so on, as a form of protest.

Strikes, slowdowns, and sit-down strikes are generally viewed as illegal if there is a contract still in effect.

It can be a very difficult time for a manager when employees are involved in a wildcat strike. A wildcat strike is a strike that occurs during the term of a contract and involves employees walking off the job and refusing to work. This is a severe measure, and it often occurs over poorly-handled grievances. Wildcat strikes are not usually organized by the union.

The grievance procedure is of critical importance, and managers have a high degree of responsibility for handling potential contract disputes carefully. You can reduce the chances of a wildcat strike by being familiar with the collective agreement and following proper procedures for handling grievances.

If a wildcat strike does occur, you will have a number of important responsibilities. You will need to:

• Remain on the job to carry out necessary duties.
• Ensure that senior management is notified of the action. Confirm receipt of the message.
• Do your best to identify the leaders of the action. This information may be important for future disciplinary action.
• Record the events as you observe them. Note any lack of action by union officials.
• Encourage employees to return to work. Ask them to abide by the terms of their contract and to use the established grievance procedure. Have similar discussions with union officials.
• Do not discuss the cause of the strike. Indicate that management will discuss the issue when all employees are back to work.

Activity 9: Job Action

Introduction

Often managers are caught in the middle between management and workers and may have competing loyalties. The purpose of this exercise is to get you to think about how you would act if you were a manager caught in the middle of possible job action.

Instructions

Part A: Case Study

Edward Robinson is a new manager, responsible for janitorial services at a local college. There has been an atmosphere of distrust between Edward’s union workers and management—a difficult situation that Edward inherited due to the actions of the previous managers. It is three in the afternoon, and Edward’s staff are discussing a walkout in sympathy with another department, which has asked Edward’s people to join them. The staff explain that it is nothing personal against Edward, but they believe that someone has been fired not because of the infraction the person was accused of but because of a personality conflict. How should Edward handle the situation?

Write down your thoughts on this situation in your journal, and then compare your answer to the suggested answer.

Show Answer

Answer

Edward should encourage his staff to abide by the contract and not walk off the job. If they are still leaning toward supporting the fired worker by walking off, Edward should ask them to agree to wait until he can check into the facts of the situation. Edward should ensure that senior management is notified, and he should express to the workers his confidence in management’s ability to work things out. If the workers do choose to walk out, Edward should follow the guidelines for dealing with a wildcat strike.

Note: Summary and Key Terms

Have you read the Chapter 11 and Chapter 12 reviews, including the Summary and Key Terms?