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SEP presented to Bill 148 hearings

July 26, 2017

SEP President Scott Travers made a presentation to the Ontario legislature’s Finance and Economic Affairs Committee’s hearing on Bill 148, the legislation that would reform the province’s employment and labour laws.

Travers’s presentation on behalf of the union endorsed the Ontario Federation of Labour’s recommendations for Bill 148 but focused on two key issues for professionals: the exclusion of some professionals from collective bargaining and how to determine who is a bona fide manager.

The experts who wrote the Changing Workplaces Report that the government used to craft Bill 148 recommended extending the right to form a union to all professionals. At present, professionals like lawyers, doctors and architects need their employer’s permission to form a union, like Legal Aid Ontario lawyers did when they joined SEP. This is the same type of exclusion that applied to engineers until the 1990s.

Changing Workplaces Report writers Michael Mitchell and John Murray, both highly respected lawyers, wrote of the exclusion:

“This prohibition directed at professionals employed in a professional capacity is inconsistent with, and contrary to, the constitutional guarantee of freedom of association.

(T)he LRA should be amended to extend coverage to members of the architectural, dental, land surveying, legal or medical profession entitled to practice in Ontario and employed in a professional capacity.”

In his remarks to the legislative committee, Travers quoted that passage and added: “After five years of fighting for voluntary recognition of Legal Aid Ontario lawyers’ collective bargaining rights, we have seen firsthand the need for Ontario to come in line with the Supreme Court’s ruling that collective bargaining rights are Charter rights. Failing to end these exclusions will only result in costly, time-consuming legal battles that aren’t in anyone’s interest.”

The second area of concern for SEP is the definition of “manager.” Within the Labour Relations Act there is a reasonable restriction on managers being included within a union. However, the definition of manager is not articulated within the legislation or a regulation. Rather, “manager” has been defined over decades of court and arbitrator rulings. There is now a clear understanding that simply having the title of manager does not exclude a worker from being represented by a union — as is the case for many SEP members who are first line managers. To be excluded from a union, a manager must have significant independent authority that is usually characterized by the ability to hire, fire and/or discipline one or more workers.

Though the jurisprudence is clear, the legislation’s vague wording combined with a lengthy process to litigate each time an employer and union disagree on the correct classification of a job as manager/not manager mean the process can be lengthy and costly.

As part of SEP’s presentation on the manager definition issue, Travers cited the union’s efforts to organize professionals at Hydro Ottawa.

Hydro Ottawa has a workforce of 550 people, 200 of whom are presently non-union employees. The Society of United Professionals is seeking to represent a portion of those 200 non-union employees. Of those 200, SEP agrees that there are 70 management and executive positions that would be properly excluded from a bargaining unit, as well as 20 others beyond the scope of a bargaining unit. With those agreed upon exclusions, about 10 months ago the remaining professional and supervisory employees of Hydro Ottawa held a representation vote. Those votes have been sealed in a box since then as Hydro Ottawa disputes 100 of 110 positions proposed for inclusion in the bargaining unit. Hydro Ottawa has submitted 10,000 pages of evidence to support their claim and indicates that they want to call all 100 employees to testify before the OLRB. Given this extraordinary volume of material and the pace of hearings SEP expects this matter will be concluded in 2019. Given they have retained two senior lawyers to handle the file, Hydro Ottawa’s costs are likely to reach $1 million – that is a cost to ratepayers and could also be a hit to the City of Ottawa, which receives a dividend from their utility’s profits. This also doesn’t take account of the cost of the OLRB’s time.

This case perfectly encapsulates why SEP proposes a clearer definition of manager and a streamlined process for handling disputes that arise over whether a position is legitimately in management.

Committee member John Yakabuski, who serves as the MPP for Renfrew—Nipissing—Pembroke, was intrigued by the Hydro Ottawa example and asked Travers why he thought the utility would take this approach to litigating management exclusions.

“I think they see this as a way to slow down the process,” said Travers. “But slowing down means denying about 110 Ontarians their Charter rights to freedom of association. That’s not fair and the legislation shouldn’t assist employers who see obstructing their employees’ rights as good for business.”

Travers presented at the Thunder Bay hearing, where he was also conducting a membership meeting. The Finance and Economic Affairs Committee is completing its hearings this month and finalize its report over the course of the summer.

SEP members who want to help improve Bill 148 for professionals and other workers can do so by contacting their MPP through the OFL’s Make It Fair Campaign. This is a key time to do so as the committee considers amendments to the legislation.

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