Law Times

www.lawtimesnews.com Page 10 March 3, 2008 / Law TiMes Big labour eyes looming recession a landmark decision by the Supreme Court of Canada is poised this year to change the landscape across Canada for workers cur- rently restricted from free col- lective bargaining. The decision in Health Ser- vices and Support — Facilities Subsector Bargaining Assn. v. British Columbia is probably the most contentious and far-reach- ing factor on the forefront of the labour and employment law sec- tor in 2008. But there are other issues swirling around that bear watching as the year unfolds, say those who practise in the area on behalf of labour groups. Last May the SCC ruled sections of B.C.'s Bill 29, the Health and Social Services De- livery Improvement act, violate the Canadian Charter of Rights and Freedoms. The battle over Bill 29 has raged since 2002 when the province enacted the act with only 20 minutes notice to unions before it tabled the new law in the legislature. Passed only a few days later with little debate and no con- sultation, the act eliminated ne- gotiated protections for union- ized health care and community social workers. The SCC ruled the Charter includes the right to free col- lective bargaining and gave the B.C. Liberal government a year to bring the legislation into compliance. with that rul- ing, other provinces are looking closely at their own rules that bar some public-sector employees deemed to be providing vital services from form- ing their own unions and bargaining, says Don Eady a partner at Paliare Roland Rosen- berg Rothstein LLP, which acts for large labour organizations and employees. "For the first time, the court has recog- nized the right to col- lective bargaining and reversed some deci- sions from 20 or 25 years ago," says Eady. "I think you'll see a lot of unions testing out what that case means." The decision has already prompted the B.C. government to back off a planned private-public-partner- ship (PPP) venture in the Okanagan and it's also trig- gered a court challenge in alber- ta against s. 189 of the provincial Labour Relations Code. The section stipulates that if 75 per cent of construction industry trade unions have rati- fied a contract, then the remain- ing trade unions may not strike even if their contracts haven't been settled. The action arises after 84 per cent of the United Broth- erhood of Carpenters and Join- ers voted for a strike but were forced to binding arbitration because more than 75 per cent of the other trades had reached agreements. The SCC decision is also go- ing to give pause for thought in Ontario, says Tim Gleason with Sack Goldblatt Mitchell LLP. The court admitted previ- ous positions on exclusion were wrong and cited Dunmore v. On- tario (Attorney General), 2001, which struck down Ontario leg- islation barring agri- cultural workers from the labour code the more clearer thinking. In that case the Harris government had rolled back legislation enacted by the previ- ous regime under Bob Rae which gave agri- cultural workers the right to form unions. The victory was some- what muted, however, since the reaction was to pass legislation giv- ing agricultural work- ers the right to associa- tion but no collective bargaining rights. as such, says Glea- son, there may be some new pressure to organize agricultural workers in Ontario. Exclusions aside, how the Ontario gov- ernment proceeds with its negotiation with large public-sec- tor unions will also hit the spotlight later this year, says Eady. "almost all the collective agreements in the education sec- tor are up aug. 31," says Eady. "and what they did the last time was make a framework agree- ment with teachers on the big- ticket items like wages, work- load, and prep time. They've expanded that this year beyond teachers to secretarial, janitorial, and educational assistants, in what seems to be a move to cen- tralize bargaining in the educa- tional sector. It'll be interesting to see how that works." He says the province is taking the position that, since it pro- vides the funding, it should lead the bargaining. How well those unions and local boards tolerate the shift could set the stage for the labour law sector over the next few years, he says. Other factors could also change the landscape. Eco- nomic storms gathering in the United States may trigger a re- cession there and at least a slow- down in the Canadian economy — especially in manufacturing- dependant Ontario and it' con- struction sector. He says the construction sector has been going "full tilt" for 15 years and may be facing a slowdown. He adds that the large manu- facturing unions are struggling with plant closures, which in turn will likely prompt two reactions: one, an increase in litigation over severances for dis- placed workers; and, two, an ac- celerated trend of labour union mergers and expansions into non-traditional sectors. "we've seen that with the United Steelworkers, for exam- ple, merging with smaller unions and diversifying away from steel and mining," he says. with job security and wages, though, he says, the shift away from defined pension plans to RRSP-based contribution will also be contentious, since it pushes the risk onto the employee away from the employer. LT FOCUS Economic storms gathering in the United States may trigger a recession there and at least a slow- down in the Canadian economy, says Don Eady. By iaN HaRVey For Law Times Sometimes the water is deeper than it looks. Practicing exclusively in the area of employment and labour law, we have the unique ability to see not only what is on the surface, but what may lie beneath. w w w. f i l i o n . o n . c a We provide proactive advice and representation in: tDPMMFDUJWFCBSHBJOJOH t DPSQPSBUFSFTUSVDUVSJOH FNQMPZFFJTTVFT tHSJFWBODFBSCJUSBUJPO tIVNBOSJHIUT tMBCPVSCPBSEQSPDFFEJOHT tPDDVQBUJPOBMIFBMUIBOETBGFUZ tKVEJDJBMSFWJFX tQSJWBDZ t SFDSVJUNFOUBOEDPNQFOTBUJPOJTTVFT tXPSLQMBDFTBGFUZBOEJOTVSBODF tEJTDJQMJOFBOEEJTDIBSHF tQFOTJPOT tXSPOHGVMEJTNJTTBM tQBZFRVJUZ TORONTO 150 King Street West, Suite 2601 t. 416.408.3221 f. 416.408.4814 LONDON 620A Richmond Street, Suite 621 t. 519.433.7270 f. 519.433.4453

• Cover