Sep 4

Welcome to MHRM 6700, Fall 2018

Hello everyone.  Welcome to MHRM 6700, Workplace Law,  Practice, and Policy.

This class explores the Three Regimes of Work Law: (1)  The Common Law;  (2)  Employment Regulation (Employment Standards and Human Rights); and (3)  Collective Bargaining Law.

The course objective is to familiarize you with key issues and policy debates that shape the law of the workplace.  You will learn key legal rules relevant to HR managers, and you will engage the key ‘big’ debates that shape all labour policy and the role of law in trying to influence employment conditions.  Thus, the course is a mix of practical law and theoretical and policy debate.

Course Blogs

This is the course blog, where all course related information will be posted.  You should also check out my main blog, Law of Work Blog, for stories that relate directly to the material that will be discussed in this course.  You can find the link to this course blog on my main blog, under the tab at the top called “Current Courses”.  You will need a password to access some of the MHRM6700 course blog.  I will give it to you via email.

The outline is posted above under the Outline tab. You need to enter the password, which I will send to you via email.  I understand that the textbook has been mailed out.

County Beer Company Case Study

We will do exercises from the County Bay Beer Company case study that accompanies the text.  You can find the case study under the tab “County Beer” on top of this page. Please read and think about all of the exercises ahead of the class.  In most instances, the ‘answers’ to the questions raised in the exercises are found in the readings you’ve been assigned for the week.  Make notes about how you would answer the questions so you are able to participate in a discussion in class.

Please let me know if you have any questions about the first assignment or anything else, and otherwise I will see you on May 11.   Cheers, David


Oct 31

The Conservative Government’s Bill Repealing Bill 148

The Conservatives have introduced Bill 47, which would repeal many of the changes made by the Liberals to the Employment Standards Act and Labour Relations Act in Bill 148, which led to the Fair Workplaces, Better Jobs Act.

Bill 148 followed an extended period of consultation and a report prepared by a panel of two experts, one with a background representing employees and unions and one representing employers (who later was a judge).  That report was called The Changing Workplaces Review.  Obviously the new government rejects most of the analysis in that report.

Here is the Ford government’s summary of the changes Bill 47 will make.

Here is a summary of the changes prepared by a Toronto Star reporter.

Here is a summer of the changes prepared by a lawyer at the law firm Stringer which represents employers.

Here is review of the changes prepared by the law firm Goldblatt Partners, which represents unions and employees (including a nice clear summary of what Bill 47 does NOT change)

 


Oct 25

Group Assignments on Labour Arbitration

Hi all,

So far I have heard from groups doing the following topics:

Group 1:    Discipline and Dismissal for Insubordination

Group 2:   Seniority and Skill and Ability Requirements

Group 3:    Falsification of Employment Records in Unionized Workplaces


May 31

New Case Exploring How an Employer Can Change a Contract Mid-term

In the Common Law part of the course, we look at the issue of midterm contract modifications (Chapter 10), including a case called Wronko v. Western Inventory.   In Wronko, the employer gave the employee 2 years’ notice that it was unilateral amending the contract to reduce the period of notice required to terminate the contract.   When the employer made the change two years’ later, Wronko quit and successfully sued for constructive dismissal.

In a recent decision called Lancia v. Park Dentistry, a similar set of facts arose, however this time the employer acted properly, learning from Wronko.  You might want to read the decision for educational purpose.  Essentially, the employer wanted to change some terms of the contract, especially the manner in which vacation pay is calculated.

The employer explained to the employee that employment law required that in order to make a change to the contract it had to terminate the contract with notice and then offer a new contract.  So it gave the employee 18 months working notice after which the contract would end.  At that point, it would offer a new contract with some revisions.

The employer also offered the employee a new contract that she could sign anytime within a month.  If she signed that, she was agreeing to terminate the initial contract immediately and she would receive $2000 in consideration for doing so.

The employee chose the latter option.  She signed the new contract and received $2000.  She later sued the employer for wrongful dismissal under the initial contract and argued that the new contract was invalid because she had received no new consideration.  She argued that while she was given a one time $2000 payment, the new contract actually resulted in her losing thousands of dollars.

The court dismissed her argument.  It found that, unlike in Wronko, this employer gave reasonable notice of termination of the initial contract.  However the employee opted instead to agree to terminate the initial contract in exchange for $2000, which is valid consideration.  The judge even said that all is required is a “peppercorn”!   We discussed peppercorns in class last month.  Fantastic.

 


Apr 12

You will need to access case law and law texts in this class.  Here is a quick guide to finding material on-line.

1. Free Internet Case Law

A lot of cases (not all) are now available for free on CanLII.  You need to use CanLII for your first 3 Minute Lawyer exercise.  It uses a simple search engine.  You can access statutes and case law decisions.

You can search nationally or by province.  If you click on Ontario, for example, your searches will be confined to Ontario.  You’ll see when you click on a province that specific courts and tribunals are listed. For example, if you click Ontario you will find a list of Boards and Tribunals.  In that list is the Ontario Labour Relations Board, the Human Rights Tribunals, and Labour Arbitration Awards.  These are tribunals that are important in the Law of Work.

2.    Quicklaw

Quicklaw is the main case law database used by lawyers.  It’s expensive, but you have free access to it while you are a student.  Just search Quicklaw in e-resouces, and then “click on access this resource”.  On the next page, click “Register Later”.  Then on the next page click “Accept”.    That gives you access to the database.  You can search by topic or case name.  Quicklaw includes all courts and tribunals in Canada.  It has more cases than CanLII, since not every case makes it onto CanLII.

3.   Work Law E-Texts

There are several good e-texts available using York University’s library e-resources database.   You will need to enter your passport York information.

 

For the Common Law and Regulatory Standards Regimes [often referred to as “Employment Law”]

On E-Resources, search for “Employment Source”.  Follow the link to the database of that name by WestLawNext Canada.  There you can ask several Employment Law texts, including:

S. Ball, Canadian Employment Law

H. Levitt, The Law of Dismissal in Canada

You can also access the text by Geoffrey England, Individual Employment Law, by searching the name of the text in e-resources. This is a leading text on common law and regulatory law, but was last updated in 2008 so it is dated now.

For the Collective Bargaining Regime [often referred to as Labour Law]

On E-Resources, search for ‘Labour Source”. Follow the link to the database, where you can find several labour law texts, including:

Canadian Labour Arbitration (known in the field as “Brown & Beatty” after the names of the authors).  This book is the leading textbook on labour arbitration in Canada, which is the litigation of grievances in unionized environment.  The book explains the law and links to arbitration decisions.

Canadian Labour Law  by George Adams.  This is a leading text that explains all aspects of collective bargaining law (unionization, collective bargaining, labour arbitration, strikes and lockouts).

Labour Arbitration Cases (L.A.C.), is the leading case law reporter for arbitration decisions.


Nov 1

Hi all. We will be discussing the third regime of workplace law starting this weekend: Collective Bargaining Law.

I used to show two videos in this class.  One is a history documentary following the development of the Canadian labour movement and labour laws. The other is a documentary of a particularly difficult round of collective bargaining at Bombardier near the Toronto airport in the mid-1990s.  I decided that it wasn’t the best use of classroom time to show these videos, but after some lobbying, I’ve managed to get York librarians to obtain the streaming rights to the videos. That means you can watch the videos from your home computer if you have time and interest.  If you use a Mac, I suggest you use Firefox instead of Safari to view these movies.

The Labour History Videos

There is a series of 4 short documentaries of about 20 minutes each.  I used to show Part 2 (Hard Times, High Hopes, 1929-1945), because it shows the origins of our modern labour law model (P.C. 1003, which we learn about in Class 3).  If you want to watch it, or any of the other 3 videos, follow the links here, stroll to the bottom where it says Click to Access this Resource, and enter your York library passwords:

Brave Beginnings, 1900-1925

Hard Times, Brave Beginnings (1929-1945)

The New Militancy (1965-1984)

Holding the Line (1984-New Millennium)

The Bombardier – CAW Strike and Bargaining Documentary

This is a pretty fascinating film, because it follows the back room in-fighting within a divided CAW bargaining team.

Background:  The CAW’s main people in the film are the CAW President (Buzz Hargrove) and the Head of the union bargaining committee (Merv Grey).  Grey is a worker in the factory who has been elected by the workers to represent them in bargaining.  Buzz runs the union.  The employer eventually tells the union that if the union does not agree to the employer’s proposal, it will close the factory and fire everyone.  Buzz thinks the threat is real, and advises Merv and the bargaining committee to accept the employer’s offer.   The workers and some on the committee think the employer is bluffing about the threat to move the work.  So in much of the movie, the union is engaged in in-fighting with one another.  Buzz disagrees with the strategy of the workers, and the workers are very angry with Buzz and the employer.  We don’t see the employer that often.

Watch how the union’s negotiators are always concerned about whether the workers will vote for the proposed agreement.  This bargaining is way more hostile than most, but you can see how collective bargaining is way different than individual bargaining.   If you have questions about the movie, use the Comment function.

Warning:  there is a lot of bad language, so I apologize for this.

Here is the link to the video. You will need to enter your York library information.


Jun 16

Protected: Muskoka Bay: Class One

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May 22

Here are a bunch of possible essay topics off the top of my head in no particular order. If none of these interest you, and nothing else is coming to mind, I recommend you email me and tell me in a general way what interests you. We can then think about possible topics.

Possible Essay Topics

1.  The Ontario government recently made major reforms to both the Employment Standards Act and the Labour Relations Act.  Examine one or more of these changes by researching both the new law and also the background to the law, including the issues/problems that the law is intended to redress.

2. In HRM literature, the shift to ‘flexible’ employment and ‘self-employment’ is often described as beneficial for both business and workers.  However, the OECD has said that the move to more ‘self-employment’ is a major cause of growing income inequality in Canada.  This raises an interesting debate:  To what extent have HRM policies contributed to the rise in income inequality?

3. Canadian judges long ago implied a term into employment contracts requiring that ‘reasonable notice’ be given of the termination of the contract. That requirement was later adopted by governments and incorporated into statutory ‘minimum notice’ provisions. However, in the U.S., the courts went another direction completely. They decided that employment contracts are ‘at will’. This means that either side can terminate the contract at any time without giving notice. Examine the origins of the divergent approaches and the philosophies used to justify them. Which model do you believe is ‘preferable’?

4. “It is true that unions have measurable effects on wages and benefits, which usually benefit workers, but they also impose considerable restraints on the ability of employers to implement progressive HR policies and strategies.” Evaluate this comment, with reference to the academic literature on union effects and labour arbitration law relating to management rights.

5.  Explore the debates about the impacts of unions on such things as productivity, profitability, and employment levels.

6. While the Canadian collective bargaining model that began with P.C. 1003 did a lot to build a middle-class in Canada, it was principally men (mostly white men) that benefited. The model was never designed to influence working conditions in the sorts of jobs where most women were employed. Yet today over 50 percent of union members are women. What explains this dramatic turnaround, and does it mean that women are in a position to take the leadership role in the Canadian labour movement?

7. Select a subject related to HR and examine in depth how that subject is governed by the law.

8. Compare a feature of Canadian labour and employment law to the laws of another country dealing with the same subject matter. Or, compare and contrast how different Canadian jurisdictions deal with the same or similar issues related to employment. (you can talk to me about possible subjects where there are differences).

9.   Explore the law that governs an HR issue that you or your organization has had deal with.  Do you think that law strikes an appropriate balance between the employer’s interests and the employees’ interest?

10.  Choose any academic/professor in the field of industrial relations or employment/labour law and explore themes and ideas in their work.

11.  Explore the debates about whether the minimum wage laws reduce poverty.

12.   Explore the literature that explains why workers join unions, and assess the potential for workers in your workplace or industry to look to unions in light of those findings.

13.    Examine and evaluate  the various studies that have looked at the “demand for unionization” in Canada and the U.S. (the assessment of whether workers would like to belong to unions if given the opportunity).  What issues do these studies raise for public policy reform, if any.

14. The Ontario government recently enacted Bill 32, An Act respecting the Human Resources Professionals Association.  Explain the background of this Bill and assess its likely impact.

15.  How does the Human Rights Code deal with employees with addictions and what is the extent of an employer’s duty to accommodate those employees?