musings from a new legal apparatus.
As per labour relations legislation, some employees are excluded from collective bargaining. In the past this exclusion has survived Charter scrutiny as it has been held that the freedom of association and freedom of speech do not guarantee a right to collectively bargain. However, newer case law seems to suggest that there is a Charter …
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Generally, independent contractors are excluded from collective bargaining. It is believed that they are financially independent enough such that they do not require the protection of collective bargaining. Either of the tests above can be applied to determine if an individual is a contractor or an employee.
When it comes to wrongful dismissal, the main job of the court is to determine what is reasonable notice (i.e. you get paid money to compensate you). This is an implied term of the employment contract as per common law. There are two main approaches to determine reasonable notice. The oft-cited Bardal approach where the …
The measure of damages for wrongful dismissal is governed by the length of the notice period in the contract of employment, because what makes the dismissal unlawful at common law is the employer’s failure to give due notice or wages in lieu of. Therefore, the employer can recover only for wages and benefits that he …
The rules of employment contracts are similar to the rules of contract in general. For example, as per the freedom of contract, one is fully entitled to choose whether or not they want to enter into a contract. This applies to employment contracts as well. Employers are free to decide whether or not they want …
Here is a broad overview of various topics in labour and employment law. This would come out predominantly from a Canadian context. If you work for somebody, then by definition you have an employment contract, i.e. the common law contract of employment. Generally, there is an explicit contract written out between employer and employee, other …
Generally, reinstatement is not a remedy available at common law. However, this remedy may be available as per statute or collective bargaining agreement. For obvious reasons, reinstatement is not a popular remedy: it would create tension and awkwardness in the workplace.
Confidential employees are excluded from collective bargaining because they might be able to give the union access to matters that the employers do not wish them to know about such as bargaing strategy, grievances, etc. (Canadian Union of Bank Employees v. Nova Scotia). That being said, confidential employees will only be excluded if there is …
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Managers are usually excluded from collective bargaining as it is a fundamental premise of labour law that there is a conflict of interest between management and workers (Children’s Aid Society). The most important factors in determining if an individual is a manager are: the power to discipline, the power to hire, promote, demote, and grant …
Some statutes exclude certain professional employees from collective bargaining, on the basis that these employees already enjoy a privileged economic position. Traditionally, public employees were excluded from collective bargaining but nowadays we see more public sector employees involved in collective bargaining. Often public employees are covered by special collective bargaining statutes which put certain restricts …
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