Diversity in Canada
A few years ago there was a big debate on the Indian Gaming Authority’s rights on hiring diversity. This is a brief analysis of that case to those who are familiar with it…
Canada is a federally structured constitutional Monarchy and a parliamentary democracy containing 10 provinces and 3 territories. Where Employment and labor law is concerned provincial powers take priority or final jurisdiction over federal laws and regulations for most areas (Toronto Electric Commissioners v. Snider ).
The areas where Canadian federal employment and labor laws take priority are dependent on the type of industry. Federal regulations take priority in Industries that are considered of high national importance or in the case of a national emergency. For example, Air transportation, railways, shipping and nuclear power generation are considered to be exclusively governed by federal laws (The Global Workplace, p159). To be more specific, this is outlined in section 2 of the Canadian Labor Code. Our authors also state that 90% of the labor force will be governed by provincial laws. Therefore, we must look at Sasketchawan employment and labor regulations to create a detailed assessment of the issues.
Union Security Provision
Canada has ratified (previously discussed) ILO convention 87 guaranteeing protection of freedom of association. However, it has not ratified convention 98 which guarantees the right to organize and collective bargaining. So although, Canadians are free to associate one must look at local Sasketchawan laws to determine their right with regards to unionization and cannot use ILO conventions as the overarching laws in this case.
In the case of Sasketchewan Indian Gaming Authority Inc. and C.A.W. – Canada, the Indian Gaming Authority is trying to reach a collective bargaining agreement with the assistance of the Sasketchewan Labor Relations Board (the SLRB determined that based on their interpretation of the S.26.5 of the labor code, intervention is permissible for the first collective bargaining agreement when negotiation have broken down and the situation warrants it [The Global Workplace, p177]). The agreement was that the employer, “upon the written request of the employee…the employer will deduct from the earnings of each employee…union initiation fees and dues”. In addition, both entities reached an agreement to be able to send contact information from the employer to the union of all members covered by the collective bargaining agreement (members of the union).
The Saskatchewan Labor Standards Act of 1978 affirms this, and does not object to the sending of information to the union from the employer. The writer is unaware at this time of any privacy laws that forbid this, however if they do exist the employees must still sign an agreement authorizing the employer to send such information to the union. Section 32 of the act affirms that
(1) Upon the request in writing of an employee, and upon request of a trade union representing the majority of employees in any bargaining unit of his employees, the employer shall deduct and pay in periodic payments out of the wages due to the employee, to the person designated by the trade union to receive the same, the union dues, assessments and initiation fees of the employee, and the employer shall furnish to that trade union the names of the employees who have given such authority.
(2) Failure to make payments and furnish information required by subsection (1) is an unfair labor practice.
The Saskatchewan Labor Standards Act stipulates that an employer has the exclusive right of operating and managing its business in all respects, including but not limited to the right to “plan, direct and control the Employer’s operation”. However it also, provides for the arbitration of employment disputes in the case of termination of a member union. It states in section 1.2 that:
The finding of an arbitrator or an arbitration board is:
(a) Final and conclusive;
(b) Binding on the parties with respect to all matters within the legislative jurisdiction of the Government of Saskatchewan; and
(c) Enforceable in the same manner as an order of the board made pursuant to this Act.
However, this does not provide an employer with the absolute right to plan, direct and control its own operations without outside interference. It allows for the constant interference of union members and the union itself, if they disagree with punishment for a violation of organizations rules and regulations, or generally dispute an employer’s actions. These arbitration procedures are final and no appeal-able and legally binding on all parties involved. Therefore Management right are reduced due to this very fact.