Union-friendly environment fueled by government policy, says employment lawyer
To quote the great Bob Dylan, the times really are a’ changing. The past couple of years has brought unprecedented disruption, both corroding and cleansing the way we work. But out of chaos often comes innovation – and the legal sector is no exception to that.
Speaking with Matthew Certosimo, partner at Borden Ladner Gervais in Toronto, he says that some of the major changes the sector has been dealing with during the infamous “post-pandemic challenges” include increasing union action.
“Some of what we're seeing could be properly characterised as ‘Back to the Future’,” Certosimo tells HRD. “Some is simply a variation on old themes. But in fairness, we can see some change underway. And, all things considered, I think it's important that employers appreciate they're facing a somewhat unique post-pandemic challenge.”
Control in the employer-employee relationship
Certosimo categorizes the most obvious post-pandemic challenge as the shift to overnight digitalization and the advent of remote working mandates.
“We have this historic intersection between significant developments in technology and the necessity of isolation,” says Certosimo. “Which led to a dramatic expansion of what was once taboo or a special exception – i.e. being allowed to work from home – and turned it into the norm. And now that workers have had that opportunity, there's tension over a return to work and the hybrid model.”
At the core of the employment relationship lies that that notion of control – over what employers see and what they’re leaving to trust.
“By that we mean control of a worker’s work, their time at work, the quality of their work as contrasted with independent contractors where there’s less control. In fact, the legal test that distinguishes between employment and independent contractors includes this concept of control,” he says.
“But of course, control takes on a very different flavour when employees work from home.”
Union action at the bargaining table
Certosimo uses the concept of overtime pay when it comes to control - premised with the notion that employers will be liable for an employee's overtime, they'll have to pay them overtime pay.
“Therefore, if you have that kind of control, you can send somebody home and tell them stop working,” he tells HRD. “If you have that kind of control, then you should be liable for overtime pay when an employee works overtime. 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. As such, we've seen this concept of work from home post pandemic become part of bargaining table issues being pursued by unions.”
But does this necessarily mean employers are facing a post-pandemic challenge with respect to unions and unionisation? Well, yes and no.
“Unionisation is still relatively low in North America,” says Certosimo. “In the United States, for instance, only six percent of the private sector is unionised. When you add in public sector unionisation, it jumps up to about 11%.
“In Canada we've historically had greater unionisation rates - about 15% of our private sector is unionised. And when you include the public sector, it jumps up into the 30s.”
But unions are on the move post pandemic. Earlier this month, over 7,000 workers who load and unload cargo at more than 30 ports in British Columbia went on strike – sparking concerns calling for government intervention. According to reports from The Canadian Press, the B.C. Maritime Employers Association claimed the union’s demands were “outside any reasonable framework for settlement” – with Rob Ashton, president of the International Longshore and Warehouse Union (ILWU), countering their “disappointment that the BCMEA had abandoned talks”.
Were once union action was rare, it’s seemingly on the rise in Canada. Why? It’s the perfect economic and societal breeding ground for industrial action.
“There's a more union-friendly environment being fuelled by government policy, which is important to appreciate because government regulation of labour relations is a cornerstone of the North American labour model,” says Certosimo.
“After all, labour peace can be impacted by an imbalance in government regulation; in other words, if one ideological group or another influences the traditional labour piece through a dramatic change, as opposed to an incremental change in the way that labour relations is organized.”
To hear more about how the pandemic challenges are driving union action, listen to HRD Talk’s recent podcast with Certosimo here.
