Posted on October 14, 2010
Is Victoria preparing to shake up Human Rights Tribunal and Labour Board?
When a worker has a problem on the job, where can she or he turn for justice?
If the workplace is unionized, the issue will go to a grievance under the collective agreement. If not, it could be resolved by the Employment Standards Branch or the Human Rights Tribunal.
But BC’s are unions are worried that a new review of workplace law, perhaps triggered by the Human Rights Tribunal’s massive pay discrimination award to foreign workers on the Canada Line, will lead to the creation of a single new agency to administer all work place law. I outline the story in this column for Business in Vancouver:
When the BC Human Rights Tribunal handed a multi-million dollar pay discrimination award to Latin American workers employed by SNCP-Seli Joint Venture on the Canada Line, the labour movement cheered.
But the decision triggered a review of BC workplace law that may result in a single new super tribunal to deal with all disputes under the labour code, the human rights code and employment standards.
That has many in the labour movement worried that the Campbell government is getting ready to make another round of employer-friendly changes, in line with earlier decisions to eliminate the Human Rights Commission and to reduce the Employment Standards Tribunal to a shell.
By the end of October, the BC Law Institute is scheduled to report on its view of a single workplace tribunal, a question Attorney General Mike De Jong asked it to consider earlier this year.
The government’s July decision not to reappoint Human Rights Tribunal chair Heather McNaughton to another term has heightened the anxiety.
Although McNaughton was a Liberal appointee widely applauded for her administration of the tribunal, Victoria not only let her go but posted the vacancy as part-time.
The management-side lawyer on the losing end of the Seli decision was Peter Gall, a labour law veteran who inspires apoplexy on the union side and has no problem getting his calls returned by Victoria.
He represented the employer side in a multi-year battle with the Construction and Specialized Workers Union Local 1611 that involved an organizing drive, the threat of strike action and hearings at both the Labour Relations Board and the Human Rights Tribunal.
In the wake of the Seli setback, Gall sat down with two of his Heenan Blaikie partners to pen an 18-page paper setting out the case for a new “specialized workplace tribunal.” It is this paper that provided the Law Institute’s starting point.
The Canada Line case was never mentioned, but Gall cited several other cases in which workers, frustrated by decisions obtained under their collective agreements, appealed to the Human Rights Tribunal and won answers more to their liking.
In one instance, a worker whose case had been adjudicated by an arbitrator, to the satisfaction of both the union and the employer, was able to win a significantly better deal from the tribunal, a deal that was not available to others.
In another case, a union itself appealed to the Human Rights Tribunal with regard to an attendance management program that had already been the subject of arbitration.
According to Gall, the Human Rights Tribunal took up the matter in a 25-day hearing that resulted in a 150-page decision that layered new processes on top of the existing collective agreement remedies.
Given the long-standing bad blood between the labour movement on one side, and Gall and the Campbell Liberals and the other, it would be surprising if labour remained calm about the prospective changes.
Although other jurisdictions, both in Europe and North America, have single tribunals similar to that proposed by Gall, critics of the proposal say “efficiency” should not be the only objective.
Labour law seeks to strike a balance between collective rights and individual rights, making the union the sole bargaining agent for all of those in the bargaining unit. The goal is the public policy objective of encouraging free and fair collective bargaining.
Human rights law is based on individual rights derived from the Charter, rights that the Supreme Court of Canada has ruled must be respected in the administration of labour law.
Gall does not propose to send all human rights issues – like denial of service in a restaurant, for example – to a workplace tribunal. Such cases might be adjudicated by courts.
Gall argues that adjudicators and arbitrators experienced in collective bargaining and labour law, however, should be in charge when the dispute is in the workplace.
His model, if implemented, would amount to a sea change in the administration of workplace law with major implications for employers and workers, whether unionized or not.
October 12 – 20, 2010