Employment and Labour Law

(1) The Union is concerned that the Employer is not bargaining in good faith. Legal Arguments

For Union: | * The employer failed to bargain in good faith by refusing to meet; cancelling meetings, rescheduling meetings, not giving the negotiating team any power to bargain, surface bargaining, deliberate provocation, refusing to justify a position, (Olivio, 2013) * Section 17 of the OLRA states that the parties must have the true decision maker at the table. (Olivio, 2013). The negotiating team was included more junior members of the human resource department. * Surface bargaining is evident as the employer agrees to meet and discuss the issues but a real effort was not made to reach an agreement when the employer withdrew several concessions it had made without any explanation. | For Employer: | - According to Section 17 of the Ontario Labour Relations Act, the parties must meet within 15 days after the notice to bargain has been given or they must agree on a later meeting time. (Olivio, 2013)- Section 16 of the Ontario Labour Relations Act states that once the union is certified or voluntarily recognized, it must give notice to the employer to bargain. (Olivio, 2013)- Section 65 of the Act says that if the union fails to do so within 60 days, it risks being decertified because it is “sleeping on its rights”. Also according to section 65 of the act, if the union fails to give notice to bargain for renewal in accordance with the OLRA or the collective agreement, the employer may apply to terminate the union’s bargaining rights because it has abandoned this workplace. (Olivio, 2013) |
Legal Merits
According to the facts and legal arguments provided, I believe the union might win this particular issue as the employer took part of bad faith bargaining. The employer was evident of refusing to meet with the union by cancelling and rescheduling meetings, which was a vibrant example of bad faith bargaining. Both parties should bargain in good faith and make every reasonable effort to make a collective agreement. The employer refused to make every reasonable effort to enter into a collective agreement. Both the employer and the union disobeyed section 17 of the Act in this section. As the employer’s negotiating team was changed and included more junior members, it does not follow having true decision makers at the table. The new members are not familiar of the previous collective agreement. Also, the union and the employer encountered bad faith bargaining by not meeting to discuss the bargaining. As the employer withdrew many concessions without explanation it had caused the union to act upon it. This had affected the negotiations between both parties massively. The union can definitely win this argument because their points are much stronger, as the employer started off by refusing to meet up, added junior members and failed to justify the changes made to concessions. Potential Remedies
In a situation that consists of bad faith bargaining, the remedies are; "order by court, declaration, posting decision, and monetary rewards." (Lomic, 2015) Also the union can seek a third-party determination, an interest arbitration to distinguish each party’s rights.
(2) The Employer is questioning if the strike is legal
Legal arguments For Union: | * Conciliation has taken place and not resulted in a new agreement. * Under Section 79 of the Act, more than 50% of the voters must be in favour of the strike. 89% of the members voted to strike. (Olivio, 2013) * The collective agreement should have expired for the strikes to be permitted. As the agreement expires March 1st, the employees went on strike March 2nd, which is acceptable. | For Employer: | * No strikes are permitted during the term of a collective agreement. As the collective agreement had expired on March 1st, no strikes are permitted during the term of a collective agreement. On December 7th, the union instructing its members not to show up for the next day, is a form of illegal striking, which violates the OLRA. (Olivio, 2013) * The minister of labour must have issued a decision that a conciliation board will not be appointed, a no board report should be issued for the legality of strike. (Olivio, 2013) * Also a cooling off period of fourteen days must have gone by after the issuing the no-board report. * Under Section 79 of the Act the union must have conducted a strike vote, which the earliest could be is 30 days before the agreement expires. The union voted on January 15th, which was more than 30 days before the expiry of agreement (March 1st). |

Legal Merits
I believe the strike is illegal as it fails to comply with numerous terms of the OLRA. Strike vote was taken on January 15th, 2015,which was over 30 days before the expiry of the agreement. The minister did not issue a no board report which violates the OLRA legality of the strike. A strike cannot be permitted until the expiration of the agreement, which was on March 1st. It was unlawful for the union to tell their employees not to show up on December 7th. The points are stronger towards the employers in this section, which concludes that the employees will win this argument.
Potential remedies
In result of an unlawful strike, the remedies that an employer can take are; Grevience of arbritration, breach and a conciliator must be hired to settle the differences between the parties and to come to agreeable terms. “Applying for Declaration of unlawful strikes, filing damages claim alleging unfair labour practice under s.96 of the act and disciplining the workers on illegal strike." (Olivio, 2013)
(3) The Employer would like to bring an interim injunction to stop the picketing by the tutors and systems technicians; Legal Arguments For Union: | - “The legal system in Canada recognizes picketing as a constitutionally protected freedom of expression” (Olivio, 2013). Picketers let people through if they requested to enter the building with some information about the strike.- The union engaged in primary picketing where striking workers set up picket lines outside property, which is permitted. It also falls under allied picketing, where the union demonstrates that a third party system technicians at Ex-cellent Tech had taken actions to directly assist by joining the picket lines while on duty. - There were no legal actions taken if the picketing was considered illegal; contacting higher authority. To get interim injunction, the employer has to show that it had made reasonable efforts to get the police to stop the picketing. The employer did not make a motion to the Supreme Court of justice requesting an injunction, which must have been given two days notice to the union, under section 102(8) (b) of the Courts of justice Act. | For Employee: | * An assumption of damages of property and violent behavior were mentioned, as there were two reports of cars with paint scratches by keys anticipated by picketers. * Many of these small to medium businesses are located in the office building where E-xcellent Learning is located, so this will not only affect the private college, but also anyone who uses this environment. * Under section 101 and 102 of the Courts of Justice Act, the court has the power to order a union to stop picketing, or to order the union to picket a certain distance from the entrance. * The other groups which are affected would be the tenants and clients /customers who use the same location where the picketing occurs. There were complaints by tenants who were clients of Ex-cellent Tech, complaining that there were loss of customers. |

Legal Merits Picketing is a form of freedom of expression in the legal system (Olivio, 2013). The employer can bring an interim injunction to stop the picketing by the tutors and system technicians as the union had picketed in an illegal manner. Picketing is restricted if it affects the public to go and come freely. The complaints by clients of loss of customers and the use of the same location causes disturbance to the tenants can lead to causing an injunction. Although the picketing allowed people to enter the building, it was assumed to cause damages to vehicles according to two verified reports. Furthermore, action by the police should have been taken in order to issue an interim injunction. Hence, it is proven that an interim injunction can be made by the employer as it was seen as an illegal strike.
Potential Remedies

As the picketing becomes illegal due to the legality of the strike, the court has power to force a union to end the picketing, or to order the union to picket a certain distance from the entrance. The tenants and clients /customers are affected by picketing sharing the same location where the picketing occurs causes harm to their business. The picketers should cover expenses caused by the damages to the economy and the employer should come to conclusions with the union. Both parties must agree to a collective agreement for the picketing to end and issuing an interim injunction.
References
1. Olivio,L.& McKeracher, P.(2013). Negotiating a Collective Agreement. In Labour Relations: The Unionized Workplace. Toronto: Emond Montgomery Publications Ltd. 2. Lomic P(2015) Chapter 4: Negotiating a Collecting Agreement (Class Powerpoints)