Employment lawyer talks about navigating 'post pandemic challenge'
The times really are a ‘changing - especially where union action is concerned. With several high-profile strikes in Canada, including Metro and the Public Service Alliance of Canada, employers need to be on their toes for any impending legal action.
But what’s driving these changes? What’s inspired the union momentum? According to Matthew Certosimo, partner at Borden Ladner Gervais, it all comes down to the ‘post pandemic challenge’ – beginning with the work from home revolution.
“The intersection of significant developments in technology and the necessity of isolation led to a dramatic expansion of what was once taboo or a special exception – working from home,” he tells HRD. “Now that workers have had that opportunity, there's tension over a return to work. At the core of the employment relationship is this notion of control; by that, I mean control over a worker’s work, their time at work and the quality of their work.”
Striking for remote working rights
A disparity between those who can do their job from home and those whose job has to be done on site has led to underlying tension. Couple that with the control component, especially in regards to overtime, and it’s a boiling pot.
“With independent contractors, there’s less control,” says Certosimo. “In fact, the legal test that distinguishes between employment and independent contractors includes this concept of control. Of course, control takes on a very different flavour when employees work from home. Overtime, for example, the concept of overtime pay is premised upon the notion that employers will be liable for an employee’s overtime.”
Employers have to pay them for overtime – because there’s this notion that the employer intrinsically has control over the hours someone works – they can send them home if they choose to do so.
“Employers can say, ‘Hey, we don’t want you to work overtime,” adds Certosimo. “You have that control – so if someone’s working over their hours, you are liable for overtime pay. But of course, that's not necessarily so when an employee is working from home and outside of that direct control that an employer would ordinarily exert. And we’ve seen this concept of working from home, post-pandemic, being brought to the bargaining table by unions.”
The most recent case played out in Canada’s largest federal strike in years, in which public and private unions sought to build remote working into the collective bargaining agreement. Over 155,000 Public Service Alliance of Canada (PSAC) members working for the Treasury Board and Canada Revenue Agency opted to strike for 12 days, with the action only being brought to an end after agreements were made around wage increases and a “new language” on remote work.
Is union action on the rise?
But are employers really facing a post-pandemic challenge with respect to unions and unionization? Or is it all hype?
“Unionization is still relatively low in in North America,” says Certosimo. “In the United States, for instance, only six percent of the private sector is unionized – when you add in public sector unionization that figure jumps to 11%. In Canada, we've historically had greater unionization rates — about 15% of our private sector is unionized, and when you include the public sector, it jumps up into the 30s, about 35%, or so of the workforce. Generally, Canada is unionized, but unions are on the move.”
According to the US labor law firm Jackson Lewis, US action is up 73.5% in 2023, he says.
“There have been 276 petitions or applications for certification in the US, against one coffee retailer alone. Apparently, 907 petitions have been filed so far this year against other employers. So almost 1200 certification efforts in the US in 2023 so far versus about half that many during the same period in 2022.”
