Labour Law and Unionized Workplaces in Saskatchewan
The Role of Trade Unions in Collective Bargaining
In a unionized workplace, the union acts as the exclusive bargaining agent for the union members in the workplace. In this role, the union negotiates a collective agreement with the employer.
A collective agreement is a legally binding agreement between the employer and the union and sets out the rights and responsibilities of the employer and the employees. Collective agreements normally include topics like wages, benefits, and working conditions. Collective agreements will usually have a defined term and be subject to renegotiation at the expiry of that term. Under subsection 6-39(1) of The Saskatchewan Employment Act, a collective agreement for employees under provincial jurisdiction which has expired remains in force from year to year.
Once a collective agreement has been finalized and comes into effect, the union then enforces the terms of the agreement. The union represents unionized employees in disputes with the employer regarding the interpretation and application of the collective agreement.
The Saskatchewan Labour Relations Board
The Saskatchewan Labour Relations Board is an independent, quasi-judicial tribunal continued under section 6-92 of The Saskatchewan Employment Act.
The Board carries out number of statutory functions in relation to labour and employment disputes, but its main role is in relation to applications made under Part VI of The Saskatchewan Employment Act.
Among other things, the Board decides the outcome of:
- Applications by trade unions to be certified for a particular bargaining unit;
- Applications by trade unions, employers or employees regarding the transfer of a business, or part of a business, which is subject to an existing certification order;
- Applications to cancel a certification order by employees within a certified bargaining unit;
- Applications for assistance in concluding a first collective bargaining agreement made by trade unions or employers;
- Unfair labour practice applications made by trade unions or employers; and
- Duty of fair representation applications made by trade union members or former members.
The Board holds hearings in which it makes decisions based on the evidence and submissions of the parties involved. The Board’s decisions are legally binding and are subject only to judicial review although the Board also has the authority to reconsider its own decisions in certain circumstances.
Labour Arbitration Versus Civil Litigation
Collective agreements generally provide for an informal grievance process through which the union and the employer first try to settle their disputes through discussion. If this fails to resolve the grievance(s), the union, or the employer, may advance the grievance(s) to arbitration. It is important to note, though, that the specific provisions of the applicable collective agreement can influence both this process and the particular format of the arbitration.
Arbitration is typically before either a single arbitrator or a board of arbitration. The parties decide on who will act as arbitrator(s), normally choosing specialists in labour law. Arbitration hearings can take place in-person or be held virtually.
While arbitration hearings are generally more informal than court proceedings, there are a number of similarities. Arbitration hearings are adversarial and the parties present evidence and arguments. Arbitrators interpret the provisions of the collective agreement and any applicable legislation and make factual findings based on the submissions of the parties. Moreover, arbitrators make legally binding decisions. If one of the parties wishes to challenge the outcome of an arbitration, the arbitration decision is only subject to judicial review.
Disputes arising under the collective agreement are generally subject to the exclusive jurisdiction of the arbitrator. This means that an individual union member must pursue any claim against his or her employer arising from such a dispute (e.g., in relation to his or her termination) through grievance arbitration rather than through the courts.
Strikes and Lockouts
When bargaining between a union and an employer reaches a stalemate, each side may resort to the use of economic sanctions to attempt to resolve the dispute: unions may vote to go on strike while the employer may choose to engage in a lockout by temporarily closing the business or part of it.
The right of unionized employees to strike is now recognized as included in the right to freedom of association protected by subsection 2(d) of the Canadian Charter of Rights and Freedoms. However, for a strike to be lawful, it must follow the applicable procedural requirements set out by statute. Most of these statutory procedural requirements also apply to employer lockouts.
For provincially regulated employees, these are found in sections 6-30 to 6-35 of The Saskatchewan Employment Act and, if applicable, Part VII of The Saskatchewan Employment Act.
A lawful strike or lockout cannot take place during the term of a collective agreement. In other words, the strike or lockout must occur prior to a first collective agreement coming into effect or after the expiry of an existing collective agreement and must follow collective bargaining between the employer and the union.
A lawful strike also requires that there has been a vote of employees in the bargaining unit in which a majority of those voting voted for a strike.
Where the parties have not identified any essential services carried out by the bargaining unit members, the other procedural requirements for a lawful strike or lockout are as follows:
- Written notice of impasse has been provided to the other side and to the Minister of Labour.
- There has been mediation or conciliation of the dispute by an external third party (a labour relations officer, special mediator or conciliation board) appointed by the Minister.
- The external third party did not recommend terms of settlement, or the parties did not accept the terms of settlement recommended by the external third party.
- The external third party has informed the Minister and the parties in a report that the dispute has not been settled.
- A 14-day cooling off period following the report to the Minister has elapsed.
- The party intending to commence a strike or lockout has provided 48 hours’ written notice of the date and time of the start of the strike or lockout to the other side and has then provided prompt notification of date and time of the start of the strike or lockout to the Minister.
Special requirements for a lawful strike which apply to union members employed by employers that provide an essential service to the public are set out in Part VII of The Saskatchewan Employment Act.
Employer Obligations in Unionized Workplaces
Like employers in non-unionized workplaces, an employer in a unionized workplace must comply with all applicable laws. This means that the applicable employment standards legislation and relevant provisions in human rights legislation continue to apply to an employer in a unionized workplace even if the collective agreement does not contain specific provisions relating to these topics.
In addition, an employer in a unionized workplace has a number of extra obligations. Such an employer is under a duty to bargain in good faith with the union. Among other things, the duty to bargain in good faith means that the employer must respect the union’s status as the exclusive bargaining agent for the members of the bargaining unit and cannot bargain directly with individual union members. The employer is obliged to meet with the union and has a duty to respond to reasonable requests for information from the union. The employer must, along with the union in question, make every reasonable effort to conclude a collective agreement.
Employers must comply with the collective agreement once the collective agreement becomes effective. Employers cannot interfere with union activities through intimidation, coercion, and harassment. Employers also cannot retaliate against employees for participating in legitimate union activities.
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The above information is provided for information purposes only and does not constitute legal advice.