To many, the meaning of the holiday is lost and it has become associated with the end of summer and the start of the school year.
But, as the Toronto Star remind us:
Nearly 500,000 more Canadians will be unemployed this Labour Day than
last, and while economists say the recession is over, job losses are
expected to continue well into next year, and many of those who lost
their jobs don't qualify for Employment Insurance.
This has been a devastating year and individuals and their families have suffered greatly. My sincere wish and hope is that better times are around the corner for those people who have had to deal with so much.
You'll see that Arbitrator Kaplan references a leading case of Arbitrator Picher in Imperial Oil that was judicially reviewed
and, in fact, recently made its way to the Court of Appeal.
The generally applicable law was set out by Arbitrator Picher in Imperial Oil:
No employee can be subjected to random, unannounced alcohol or drug testing, save as part of an agreed rehabilitative program.
An employer may require alcohol or drug testing of an individual where the facts give the employer reasonable cause to do so.
It is within the prerogatives of management’s rights under a collective agreement to also require alcohol or drug testing following a significant incident, accident or near miss, where it may be important to identify the root cause of what occurred.
Drug and alcohol testing is a legitimate part of continuing contracts of employment for individuals found to have a problem of alcohol or drug use. As part of an employee’s program of rehabilitation, such agreements or policies requiring such agreements may properly involve random, unannounced alcohol or drug testing generally for a limited period of time, most commonly two years. In a unionized workplace the Union must be involved in the agreement which establishes the terms of a recovering employee’s ongoing employment, including random, unannounced testing. This is the only exceptional circumstance in which the otherwise protected employee interest in privacy and dignity of the person must yield to the interests of safety and rehabilitation, to allow for random and unannounced alcohol or drug testing.
The cases generally recognize that an employee’s refusal or failure to undergo an alcohol or drug test in the three circumstances described above may properly be viewed as a serious violation of the employer’s drug and alcohol policy, and may itself be grounds for serious discipline. The failure or refusal to take an alcohol or drug test, however, like the registering of a positive test, does not necessarily justify automatic termination. The appropriate disciplinary sanction in such a case remains subject to the general just cause provisions of the collective agreement and is an issue to be determined on a case by case basis, having regard to all of the relevant facts (at para 100).
Arbitrator Picher went on:
…a key feature of the jurisprudence in the area of alcohol or drug testing in Canada is that arbitrators have overwhelmingly rejected mandatory, random and unannounced testing for all employees in a safety sensitive workplace as being an implied right or management under the terms of a collective agreement. Arbitrators have concluded that to subject employees to an alcohol or drug test when there is no reasonable cause to do so, or in the absence of an accident or near miss and outside the context of a rehabilitation plan for an employee with an acknowledged problem is an unjustified affront to the dignity and privacy of employees which falls beyond the balancing of any legitimate employer interest, including deterrence and the enforcement of safe practices. In a unionized workplace, such an extraordinary incursion into the rights of employees must be expressly and clearly negotiated. It is not to be inferred solely from general language describing management rights or from language in a collective agreement which enshrines safety and safe practices (at para 101).
Employment among private sector employees increased by 49,000 in
August, the first increase in this group since September 2008.
Employment among both public sector employees and the self-employed
edged down in August.
Some feel the need to go on and on in their legal writing, covering every point in excruciating detail forgetting that long winded and rambly writing loses the reader. Get to the point as quickly as possible and let the strength of the argument persuade. What is certain is that the number of words you use and the volume of paper that it takes to make a point will not win the case. Crisp, tight, direct, to the point writing helps. Loose, unfocused, verbose writing hurts by distracting the reader from what you're trying to say.
A really good non-law book on writing is If You Want to Write by Brenda Ueland and written in 1938. Dan has a number of references as well. Thanks for this reminder Dan.
Saskatchewan is the most recent province to indicate that they would introduce legislation that would ban texting and non-hands free cell phone use while driving. Newfoundland and Labrador, Quebec and Nova Scotia already have varying bans in place and with Ontario's restrictions coming into effect in October.
"This study is the third installment of a long-term project to evaluate the extent to which labour relations laws bring flexibility to the labour market while balancing the needs of employers, employees, and unions. Balanced labour laws are crucial in creating and maintaining an environment that encourages productive economic activity. Labour relations laws inhibit the proper functioning of a labour market and thus reduce its performance when they favour one group over another or are overly prescriptive through the imposition of resolutions to labour disputes rather than fostering negotiation among employers, employees, and unions. Empirical evidence from around the world indicates that jurisdictions with flexible labour markets have more productive labour markets (higher job creation rates, lower unemployment, and higher incomes) which produce a higher standard of living."
The general conclusion of this study is that:
"Overall the trend is clear. US states tend to have balanced labour relations laws focused on providing workers and employers with choice and flexibility. Canadian jurisdictions, on the other hand, generally maintain much more biased and prescriptive labour relations laws."
Whether you accept this conclusion depends, in part, on your own definition of balance and your particular view of the world. There are many who would not want to emulate US labour laws and would see them as favouring one side over the other - again, it depends on your point of view.
The debate about balance in labour relations is one that seems irreconcilable. We see labour laws used as part of the platform of most political parties where they propose to "right the ship" by bringing their view of balance to labour relations.
As an example, when the NDP came to power in Ontario in the early 1990's they did so on a platform of labour relations reform. They quickly re-wrote the Labour Relations Act to, arguably, make it easier for employees to organize and, some would argue, tilt the balance in favour of labour and the unions. When the NDP lost power to the Conservatives who successfully campaigned on the platform of the "common sense revolution", they repealed the NDP's reforms (Bill 7) in favour of "balance" through free choice. Some argued that this unjustifiably shifted the balance too far in favour of the employer. Then the Liberals beat out the Conservative and they take the opportunity to implement their view of balanced labour relations by re-pealing some of the Conservative government's reforms.
Who's right and who's wrong? In the end, and like in so many areas in life, it depends on your perspective.
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