HR Insights - October 2019

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HR Insights

N E WS LETTER

Wel com e

issue 6

october 2019

Saskatchewan Employment Act – Recent Rulings and Amendments In this latest issue of HR Insights, our consultants talk about two areas within the Saskatchewan Employment Act: Essential Services and Leaves of Absence

HR Insights Welcome to SARC’s Human Resources and Labour Relations Newsletter.

Join SARC Consultants each quarter as we explore topics important to managing employees and HR/LR risk.

CONTENTS

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Essential Services: Services that Must be Maintained During Strikes or Lockouts Understanding which essential services must be maintained in the event of a strike or lockout.

Saskatchewan Employment Act Amendments: Employment Leaves Understanding important amendments to the Saskatchewan Employment Act pertaining to what employees can access for leaves.

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About the Consultants

Marrion Wolff - Labour Relations

Brent Matkowski - MLT Aikins

Amy Gibson - MLT Aikins

Marrion can assist SARC’s Regular and Associate Members with a variety of LR/HR issues, including progressive discipline, performance management, and duty to accommodate for unionized and non-unionized organizations. She can also provide specific support in collective bargaining for unionized organizations. Accessing this service is free of charge and can minimize organizational risk. Having a quick check-in or a review done before decisions are made can save you time and money in the end.

Brent assists unionized and nonunionized employers with a variety of labour and employment law issues including labour relations, human rights, occupational health and safety, workers’ compensation, labour standards, employment contracts, employer policies, and discipline. Brent has appeared before the Saskatchewan Labour Relations Board, Provincial Court, Court of Queen’s Bench and Court of Appeal.

Amy Gibson carries on a general labour and employment practice. She advises employers on a variety of labour issues, including union certification drives, collective agreement interpretation, labour disputes, workplace policies, discipline and discharge, employment contracts, OH&S, workers’ compensation, labour standards and human rights. She has experience with a variety of court and administrative proceedings as well as representing clients before the Saskatchewan Labour Relations Board and in Canada Labour Code unjust dismissal adjudications.

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HR/LR Insights

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Essential Services: Services that Must be Maintained During Strikes or Lockouts

By Brent Matkowski and Amy Gibson, MLT Aikins

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he Saskatchewan Employment Act (the “Act”) governs provincially regulated employers. In order to protect the public from harm as a result of a strike or lockout, the Act requires that essential services provided to the public must be maintained during a strike or lockout. The Act may require unionized employees to not participate in a strike or lockout where the employer provides an essential service to the public.

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ajor legal issues for unionized employers are whether they provide essential services to the public, how disputes over essential services will be resolved with the union, and exactly what essential services must be maintained during a strike or lockout. These issues are of particular relevance to many SARC Member Agencies, which provide a wide variety of support, residential, and vocational services to a vulnerable group.

Essential Services Disputes How essential services issues are resolved is a complicated process with technical legislative requirements. However, the steps from a very high level can include:

during a work stoppage, how employees will be informed that they must work during a work stoppage, and the procedures that must be followed to respond to an emergency during a work stoppage.

3. If the employer and union cannot agree on the contents of the essential services agreement, the dispute can be referred to the “Essential Services Tribunal”. The Chair of the Essential Services Tribunal is the Chair or the Vice-Chair of the Saskatchewan Labour Relations Board.

Both the union and the employer also appoint a member to the Essential Services Tribunal.

4. The Essential Services Tribunal will hear from the parties on an expedited basis, and make a determination on the contents of the essential services agreement. It is possible that the Essential Services Tribunal may determine that none, some, or all of the positions are essential and must be maintained during a work stoppage.

1. After the employer and union have bargained to impasse, the employer or union identify whether they believe essential services are at issue.

2. The employer and union bargain an “essential services agreement”. The essential services agreement must contain several specific terms, including identifying what services are essential, what classifications of employees must work October 2019

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If an employer provides essential services and so many employees must continue to work during a work stoppage that a lockout or strike would be “substantially interfered with”, impasses in bargaining may need to be resolved by mediation/arbitration. There are again technical requirements to determine whether a lockout or strike has been “substantially interfered with” which are not outlined in full in this article.

The takeaway is that employers who provide significant essential services to the point where a lockout or strike would be “substantially interfered with” may no longer be able to be the subject of a work stoppage, and instead must participate in a mediation/arbitration process where a third party arbitrator may ultimately determine the content of the collective agreement. The tradeoff is that while employers providing essential services may avoid work stoppages, those employers may lose some degree of control over the collective bargaining process.

Recent Decision of the Essential Services Tribunal University of Saskatchewan v Canadian Union of Public Employees, Local 1975, LRB File No. 015-19 (June 27, 2019) (“U of S”) is a recent decision which addressed the issue of whether the University of Saskatchewan provided essential services, and what positions were essential. This decision is of great importance to many unionized SARC Member Agencies, as according to the reasoning provided by the Tribunal, some SARC Member Agencies may be able to argue that certain services they provide are “essential services”.

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HR/LR Insights

In the U of S decision the employer, the University, and the union, the Canadian Union of Public Employees, Local 1975 (“CUPE”), were unable to conclude an essential services agreement. They applied to the Essential Services Tribunal to determine which of the University’s employees, if any, provided essential services.

CUPE argued that the University was not a “public employer” as required by Part VII of the Act. However, the Tribunal had no problem concluding that the University was indeed a public employer, as it was satisfied that the University provides a service that is essential to the public.

The same argument could potentially be made with respect to SARC Member Agencies.

Given that “essential services” is not defined under Part VII of the Act, the Tribunal was tasked with interpreting that term. Both the University and CUPE agreed that an appropriate definition of essential services is a “service the interruption of which would endanger the life, personal safety or health of the whole or part of the population.” The Tribunal adopted this definition.

In addition, the Tribunal made the following important points regarding essential services: • The employer has to consider whether nonunionized employees are able to perform the essential services. If non-unionized employees are able to provide the essential services of the unionized employees, then the unionized employee will still be permitted to participate in strike action or be locked out by the

employer. Further, it does not matter whether a non-unionized employee can perform the essential services as effectively or efficiently as the unionized employee as long as they can do it well enough to eliminate the danger to life, personal safety or health of the population; • Employees that provide both essential and non-essential services will only be required to perform those services that are determined to be essential during a work stoppage; • Previous essential service agreements between parties may be relevant in the determination of essential services; and • The parties are in the best position to know the implications of an essential services agreement and the functioning of their workplace.

Accordingly, they should make every effort to conclude an essential services agreement on their own.

The Tribunal designated, among other things, the following services as essential in the U of S decision: • Chemistry Storekeeper responsible for instructing staff and students on safe disposal of dangerous chemicals and chemical waste; • Dental Assistant that provides support to students, staff and faculty in dental procedures; • Receptionist at the College of Medicine; • Medical Office Assistant at the College of Medicine; • Clerical Staff at the College of Medicine Department of Surgery responsible for scheduling appointments, tests, surgeries and admissions; • Coordinator and Administrator who ensured the accurate and timeliness of payroll and the maintenance of disability and benefits payments; • Platoon Member and Dispatcher for the U of S Campus Protective Services; and • Custodial and Maintenance Staff at U of S Residence Buildings.

The determination of which services will be characterized as essential in any given case necessarily requires balancing the interests of public safety and free collective bargaining.

What may be considered an essential service in one workplace may not be considered to be an essential service in another.

The inclusive definition of “essential services” adopted by the Tribunal in the U of S decision and the designation of the services just referred to as essential suggest that some SARC Member Agencies may meet the threshold for providing essential services. For example, a number of care worker positions who provide services that if interrupted would endanger the life, personal safety or health of a participant may be deemed essential.

The designation of certain services as essential can impact an employer’s future rights and obligations. SARC Member Agencies are encouraged to obtain legal advice in the identification of essential services positions and the negotiation of an essential services agreement. This article is not a statement that SARC Member Agencies do or do not provide essential services, and is only intended to flag the essential services issue for consideration.

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Saskatchewan Employment Act Amendments:

by Marrion Wolff, Labour Relations Consultant The following is intended to provide general information only and is not meant to replace the necessity of consulting the Saskatchewan Employment Act for employer requirements regarding employment leave.

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his past summer, amendments to the Saskatchewan Employment Act were adopted that affect many of the employment leaves common in the workplace.

As always, the Saskatchewan Employment Act outlines the minimum that employees can access for such leaves, while many employers and Collective Bargaining Agreements will enhance these minimums. For example, most employers provide paid sick leave or bereavement leave; however, these paid leaves are not in addition to the unpaid leaves provided in the Act. Employees are not able to stack the leaves by accessing paid bereavement from their employer and then applying for the unpaid bereavement leave provided in the Saskatchewan Employment Act. The general rules regarding who is eligible for the leaves has not changed. Employees must have been in service for more than 13 consecutive weeks and must provide the employer with notice as far as possible in advance of the date they plan to commence the leave when applying for: • • • • • • •

Bereavement Leave Compassionate Care Leave Interpersonal Violence Leave Critically Ill Child Care Leave Critically Ill Adult Care Leave Crime-related Child Death or Child Death or Disappearance Leave Citizenship Ceremony Leave

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HR/LR Insights

Employment Leaves

The Interpersonal Violence Leave is new and provides for 10 days’ leave in a period of 52 weeks, which an employee can take intermittently or in one continuous period should they, their child, or a person for whom the employee is a caregiver be experiencing interpersonal violence. Of the 10 days of leave, the employee is entitled to 5 days with pay. The purpose of the leave is to allow the employee who is a victim of interpersonal violence to: • • • • • •

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Seek medical attention Obtain services from a victim services organization Obtain psychological or other professional counselling Relocate temporarily or permanently Seek legal assistance Prepare for participating in civil or criminal legal proceedings related to the interpersonal violence or sexual violence Any other prescribed purpose

Employees wishing to access interpersonal violence leave must provide reasonable verification of the necessity of the leave to the employer. This verification may be in the form of a copy of court orders, legal documents, or proof of attendance at medical or legal

appointments. The employer is required to maintain confidentiality in respect of all matters in relation to leaves taken under this provision of the Act. In addition to the new Interpersonal Violence Leave, other employment leaves were enhanced over the summer. Maternity and adoption leave was increased from 18 to 19 weeks. Parental leave increased from 34 to 59 weeks for the parent who gave birth and from 37 to 63 weeks for another parent. As well, there was the addition of a Critically Ill Adult leave, which allows employees 17 weeks of job protected leave to care for a critically ill adult family member. If your policies or Collective Bargaining Agreement contains leaves that are less than those listed in the Saskatchewan Employment Act, they will now all automatically change to reflect the new provisions in the Act. SARC has updated its Employment Leaves Policy Template found in the online Managers Resource Area to include the changes made to the Saskatchewan Employment Act.

Employment Law 101 and Terminations — Webinar Join Amy Gibson and Brent Matkowski for a one-hour webinar to discuss: • Employment standards.

• Training requirements with regard to Occupational Health and Safety.

• An overview of termination principles including common law notice, termination with cause.

• The requirements and ramifications of notice periods in economic downturns.

There is no charge for this webinar for SARC Members, but you must register in order to attend.

October 2019

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