Archive for November, 2008

Osgoode to Resume Classes on Monday, December 1

Published November 26, 2008 Labour , News Leave a Comment

Osgoode students have just received word that 99.8% of classes (i.e. those without CUPE members) will resume on December 1st.  The Executive Committee of the Senate granted Osgoode’s request for an exemption from the current labour disruption and approved the remediation plan previously mentioned.  

Some York students may be angered at the differential treatment given to Osgoode, but there are a number of compelling reasons for the exemption.  First of all, if the school year was to be extended, then the ability for third year students to complete the Law Society’s licensing process (articling and bar exam) would be severely compromised.  Similarly, National Committee of Accreditation students (students from foreign jurisdictions) must write their challenge exams in January, so completion of Fall term courses prior to this is critical.

Osgoode also operates a number of clinical education programs that serve vulnerable communities – CLASP (Jane/Finch) and Parkdale Legal Aid Clinic.  If Osgoode was not able to resume classes and commence its winter term in January, there would be a significant disruption to the service provided to these communities.

Finally, out of the law school’s entire roster of courses, CUPE members are only employed in two courses:  TAs for first year Legal Process seminars, and an intensive two-week course also for first years, Ethical Lawyering in a Global Community.  Thus, the impact on the law school from resumption of classes without CUPE members is marginal, at best.

As outlined in Osgoode’s proposal, students who wish to exercise their rights not to cross the picket line will not have to do so:  until the labour disruption is resolved, all classes will be audio recorded and posted online.  Alternative assignment due dates and exam schedules will also be provided for these students.

CUPE has reportedly been quite upset with Osgoode’s attempt to circumvent their strike, and has threatened hour-and-a-half long waits at the picket lines for Osgoode students specifically.  Fortunately our student cards don’t identify us as such…

Edit: I should point out that CUPE’s comments were made at their picket of the Osgoode Faculty Council meeting and do not necessarily reflect any official policy of the union.

Collective Bargaining Bonanza 2010

Published November 25, 2008 Commentary , Labour , News 1 Comment

CUPE Watch has a great post up discussing how successful CUPE has been in aligning the various collective agreements across the province for a 2010 bargaining fiesta:

Five expire in 2010:

  • University of Ottawa (CUPE 2626) (source)
  • Ryerson University (CUPE 3904 unit 3) (source)
  • Brock University (CUPE 4207) (source)
  • University of Windsor (CUPE 4580) (source)
  • McMaster University (CUPE 3906 unit 1)

Three have expired contracts, and have demanded a 2010 expiry date in bargaining:

  • University of Toronto (CUPE 3902 unit 1), strike vote pending(source)
  • York University (CUPE 3903), currently on strike (source)
  • Trent University (CUPE 3908 unit 2), currently in bargaining(source)

It would seem that with York on strike and UofT soon to be in a strike position, CUPE must succeed at one of the two (if not both) in order for the 2010 collective bargaining bonanza to come to fruition.  Why is this important to CUPE?  From their own literature:

  • Greater political clout
  • A way to win provincial funding and better accountability
  • A visible profile for the work we do in the university sector
  • Greater collective bargaining power, unity and solidarity to achieve:  common collective agreement language, employment equity, common benefits, improved pensions, better health and safety protection, provisions against harassment and bullying

Given that 2010 will mark the start of the 2011 provincial election campaign and that Ontario could very well find its economy in shambles by then, this is a very, very risky move by CUPE.

‘Tis the Season to Accommodate

Published November 25, 2008 Cases , Employment 1 Comment

Accommodation for Religious Holy Days

With the holiday season quickly approaching, it’s important to remember the somewhat unequal treatment with respect to religious holidays in Canada.  That is, the two Christian holy days, Christmas and Good Friday, are statutory holidays in the Canada Labour Code and across all provinces.  Rosh Hashana, Yom Kippur, Mawlid al-Nabi, and Christian Orthodox holy days aren’t quite so lucky to receive the same statutory treatment.

So when an employee requests time off for religious observances, what is an employer to do?  Do they have to grant time off, and if so, do they have to pay the employee as well?  The short answer is that under the Human Rights Code, leave must be granted unless it would cause the employer undue hardship.  However, from there it gets more complicated.

Accommodation through Flexible Scheduling

The Supreme Court has held that, with respect to time off for religious observances, accommodation is best provided by flexible scheduling arrangements (see Central Oakanagan School District No. 23 v. Renauld, SCC 1992).  This could be implemented in any number of ways, but the gist is that the employee requesting time off shouldn’t have to lose wages or use vacation benefits in order to meet the requirements of his/her religion; rather, they should be accommodated.

In Renauld, the plaintiff was a Seventh-day Adventist whose faith required him to observe Sabbath from sundown Friday to sundown Saturday.  However his Monday to Friday schedule conflicted with this, so the employer proposed a Sunday to Thursday shift.  When the union rejected this proposal, Renauld filed a human rights complaint which was eventually heard by the Supreme Court.  In assessing the reasonableness of the employer’s proposal, Sopinka J. noted that an alternative work schedule was “not only reasonable but most reasonable”.  In this regard, flexible scheduling arrangements are a “win-win” situation: employees get the time off their religion requires without significant cost or detriment, and employers avoid liability by satisfying their duty to accommodate.

Accommodation Where Rescheduling Not Possible

However, not all jobs allow for alternative scheduling arrangements.  Think about teachers: it’s not like they can work saturdays or evenings to make up lost time – if the pupils aren’t in the classroom, teachers can’t work!  This was the issue in Commission scolaire régionale de Chambly v. Bergevin (1994 SCC) where three Jewish teachers were granted time off without pay to observe Yom Kippur, but were then denied reimbursement.  In arriving at its decision to order reimbursement the Supreme Court weighed a number of factors, such as interpretation of the collective agreement, but gave significant consideration to the fact that it was not possible for the teachers to make up their lost wages.  Writing for the majority, Cory J. noted that there was “no difference in principle” between the loss of a day’s pay and the loss of a week’s pay when there was no possibility to make it back up.  For this reason, when time off work for religious observances cannot be “made up”, reimbursement may be necessary.  However it must be stressed that this will depend on the terms of employment, and the provisions of the collective agreement (if any).

No Duty to Exercise Possible Discretion

But what if a persistent employee instead take the position that he or she must be provided time off with pay for their religious observances, especially if doing so imposes no undue economic hardship on the employer?  This is exactly what happened in Richmond v. Canada (Attorney General) (FedCA 1992), where two Jewish employees of the Treasury Board insisted they receive time off with pay to observe Yom Kippur and Rosh Hashana.  The Federal Court of Appeal held that the doctrine of undue hardship did not require the employer to exercise “discretionary provisions” of the collective agreement to automatically add three days extra leave with pay so the employees could meet their religious observances.  To do so would risk a “serious disruption” to the balance of collective agreements in place (or in other words, it would be unfair).

The Final Word in Ontario

Rather, at least in Ontario, if employers can provide alternative scheduling arrangements to employees who require time off for religious observances, then their duty to accommodate will be satisfied and no consideration of a paid leave of absence will be required.  This was established by the Ontario Court of Appeal in Ontario (Ministry of Community and Social Services) v. OPSEU (OntCA 2000).  In that case, despite being provided with an abundant number of alternative scheduling alternatives, including working compressed work weeks to produce a day of lieu time, an employee whose faith required 11 days off per year insisted he be provided with paid time off.  The employee (and his union) took the position that any lieu time earned through such scheduling arrangements were “earned vacation benefits”, and as such were inappropriate to use for religious observances.  The arbitration board and Divisional Court bought this argument, but the Court of Appeal thoroughly rejected it.  The Court held that flexible scheduling simply rearranged an employee’s assigned working hours – nothing more, nothing less.  Therefore, if such scheduling options are available to meet an employee’s religious observances, an employer will have fully satisfied its duty to accommodate.

Conclusion

So what are the morals to the religious accommodation story?

  1. Flexible scheduling arrangements provide the best accommodation for employees who need time off for religious observances.  They are, in effect, a “win-win” situation.
  2. In situations where time taken off work for religious observances cannot be made up, as in the case of teachers who have a fixed work calendar, reimbursement for this time off work may be necessary.  However this will largely depend on the terms of the employment and the provisions of the collective agreement (if any).
  3. The doctrine of undue hardship does not necessary extend to providing paid leaves of absence for religious observances.  This would be arbitrary and unfair.
  4. At least in Ontario, an employer can fully satisfy its duty to accommodate employees who require time off work for religious observances by providing flexible scheduling options.  If an employer can do this, it is not necessary to consider whether a paid leave of absence would result in indue hardship.

The Mess Continues; some Schulich and possibly all Osgoode students go back to school

Published November 21, 2008 Commentary , News 1 Comment

The CUPE and York labour disruption is about to go into its third week, and for some Shulich students, and possibly all Osgoode students, the end may be in sight.

For Shulich students, the York University senate granted an exemption for classes to resume for exchange students returning to their home countries in January, and for Shulich students embarking on an exchange in January.  Why?  If these students aren’t able to complete their term on time, they may either lose their present term, or have to abandon their exchange next term.  The official word:

“These are two cohorts of students who would suffer irreparable damage if they can’t start classes again,” said vice-president Sheila Embleton. “They either would have to abandon their course at the end of December and go back home, or stay here into January and abandon their next term at home.

“And 88 of the York students going on exchange are in the International Bachelor of Business Administration program, which requires that they spend a term abroad.” If these students don’t go on exchange this year, they would have to join next year’s cohort, which Embleton said universities abroad might find tough to handle.

Also note that if these iBBA students are in their fourth year, then Winter 2009 is the last chance they’ll get to conduct this exchange, which is presumably required for graduation (forcing these students into a hypothetical 5th year just to do their exchange would surely constitute undue hardship).  Consequently, Shulich professors will have to teach these classes twice – once for the exchange students, and once for everyone else once the strike ends.  And as you can imagine, CUPE is none too happy with the situation:

“This is really problematic; the university should not be making an exception for professional programs,” said CUPE official Punam Khosla. “Essentially the university can’t decide whether they’re coming or going.  They should just bargain.”

Speaking of other professional programs, Osgoode students may find themselves back in class as of December 1st.  The law school has proposed a remedial plan that would extend classes through the original exam period (to December 19th), with the new exam period running from January 5th to January 19th.  While this would preserve the length of the academic year, meaning 2Ls and 3Ls can start work without a problem, the victim of this plan are 1Ls: fall grades would not be released until mid-February, meaning 1Ls would be SOL for 1st year OCIs.  As for students who wish to exercise their right not to cross the picket line, Osgoode plans to audio record all lectures and offer alternate exam and assignment due dates, once the strike has ended.  Similarly, 1L courses which employ CUPE members would remain suspended for the duration of the strike.  However it must be stressed that this is only a proposal which is subject to York University senate approval.

The reason for Osgoode being granted an exemption would be similar to the reason Schulich was granted one: any extension of the school year would have devastating effects on law students’ ability to obtain summer jobs.  These jobs are often necessary to obtain articling positions, which in themselves require a certain number of hours to complete.  In the past Osgoode has held classes off campus to avoid extending the school year, but unlike then, this time the union has not agreed not to picket the off campus location.  As a result, there are concerns that classes could not be conducted with academic integrity.

Update:  See Prof. Doorey’s blog for a discussion about crossing picket lines in light of an “exemption”.

IBM wins injunction against former VP

Published November 10, 2008 Cases , Commentary , Employment , News Leave a Comment

So after turning down a “substantial” raise and a year’s worth of salary just to not work at Apple, 26-year veteran of IBM and former head of the server division Mark Papermaster has been ordered by a New York court to stay at home and do nothing (at least until the next hearing on November 18th).  In other words, IBM was successful in arguing that allowing Papermaster to take up the top iPod/iPhone job at Apple would not only breach his non-competition agreement and fiduciary obligations, but also that doing so would place IBM’s business in such immediate peril that an immediate injunction was necessary.  As you can imagine, this is a pretty high standard, so it’s a little bit surprising that IBM was successful.  However, there’s been some speculation that the ‘iPhone/iPod’ job was just a placeholder position until Papermaster’s non-competition agreement expired, at which time he’d then begin working on Apple’s server business.  This, of course, is precisely what IBM is up in arms about.  Any thoughts on how you think this would play out in a Canadian court, especially in light of RBC Dominion Securities?

Edit:

You can see the documents Papermaster filed in his response here.  As predicted, the thrust of his argument was to distinguish IBM and Apple’s businesses.  That is, to stress that one focuses on enterprise level solutions and servers (IBM), and the other on consumer electronics and personal computers (Apple).  I guess Papermaster left out that Apple makes servers too, and despite having a miniscule slice of the market, that’s all the more reason for them to want to grow that business and thus compete with IBM…

Where do you stand?

Published November 10, 2008 Commentary Leave a Comment

With the strike well under way, now is a great time to get a sense of how everyone feels about the labour disruption at York University.  What do you think? [note: this is totally anonymous]

 

It’s on, but what’s at stake?

Published November 6, 2008 Commentary , Labour , News 3 Comments

As I’m sure everyone has heard, the strike at York University is a go.  CUPE 3903, representing 3,400 contract faculty and TAs, voted unanimously to go ahead with the strike around 10:30 p.m. last night.  As I mentioned in the last post, this marks the third strike in almost ten years for York University – that’s not a very good track record by any stretch.  It also begs the question, why does this keep happening?  Joey Coleman over at McCleans.ca has an interesting theory:

CUPE 3903, which represents 3,400 contract faculty, teaching assistants and graduate assistants at the university, wants a two-year contract. The Canadian Union of Public Employees is attempting to negotiate a contract end date of 2010 at all universities, where it has members in Ontario.

The reason for this is simple. The union’s hand is stronger if it’s able to shutdown every university in Ontario than if it’s trying to negotiate dozens of different contracts with various colleges and universities. The union also has dreams of proving its relevance by having what would amount to a general strike.

The union’s dream is the nightmare of university administrations across the province. This strike is not really about York University. This strike is about CUPE and the Council of Ontario Universities. It is a struggle for control of the universities themselves.

Neither side, from their perspective, can afford to give ground in this struggle.

In other news, the Amalgamated Transit Union Local 113 (otherwise known as the “TTC’s union”) is showing solidarity with CUPE 3903 by refusing to cross picket lines / enter York University.  This means students will have to walk to / from Keele St. in order to catch a bus.

Anyone think universities ought to have a duty to disclose when collective agreements will come due to potential students?

Restrictive Covenants in the News: IBM v. Apple

Published November 5, 2008 Cases , Commentary , Employment 1 Comment

Restrictive covenants are getting a lot of attention right now.  In the recent decision of RBC Dominion Securities v. Merrill Lynch, the Supreme Court of Canada clarified the obligations of departing employees.  Generally speaking, non-managerial employees (or non-”fiduciaries” in lawyer-speak) are free to compete with former employers, so long as no misuse of confidential information occurred, and/or their employment agreement does not say otherwise.  This “otherwise” is typically found in clauses known as restrictive covenants, which prevent employees from competing with, or soliciting the clients of, their former employer.  RBC Dominion Securities largely deals with non-fiduciary obligations, and things become substantially more complex when managers or executives (“fiduciaries” in lawyer-speak) are involved.  Such is the case in the recent New York district court filing of IBM vs. Apple.

According to the filing, Mark Papermaster, former IBM Vice President of Microprocessor Technology is set to join Apple as Senior Vice President of Hardware Engineering.  At IBM, Papermaster spent 26 years developing IBM’s server business, but according to Apple, Papermaster will largely be responsible for iPhone and iPod hardware engineering.  Generally speaking, these two companies are far apart from one another (what a difference 20 years makes…):  Apple makes cell phones, MP3 players, and personal computers, whereas IBM develops microprocessors, servers, and enterprise solutions.  The conundrum, however, is that Apple does has a small, albeit notable, presence in the server market where it competes with IBM.  In light of the slight overlap regarding servers, the question is whether Papermaster is in breach of his non-competition agreement and/or fiduciary obligations.  IBM certainly seems to think so.

The further question is whether Papermater’s non-competition agreement will be found to be enforceable (for a copy, see here).  Generally speaking, Courts don’t look fondly upon employers who require employees to sign such non-competition agreements.  Though there are instances where they will be upheld, the general reluctancy stems from considering the fairness of preventing someone from earning a living.  IBM must have cold feet, as its filing states that it offered Papermaster a “substantial” raise and a year’s worth of salary as an incentive to “comply with the terms of his non-competition agreement”.  Since when do employers give money to employees just to get them to comply with terms of their employment?

Hat tip to Apple Insider for the scoop.

Strike at York

Published November 5, 2008 Commentary , Labour , News Leave a Comment

As you many of you may know, York University is currently on the precipice of its third strike in almost 10 years.  The union involved in this strike is CUPE 3903, which represents teaching assistants and sessional professors.  The Deans of all faculties have agreed that in the event of a strike, all academic activities on or off campus at York University will be cancelled, subject to four exceptions:

1. Non-degree credit activities, not involving CUPE 3903 employees;

2. Activities already scheduled off campus, such as off-campus courses, practicums, placements or internships (unless the Dean determines that they too should be suspended in his/her Faculty);

3. Degree credit activities provided by the Osgoode Hall Law School at its downtown campus;

4. Graduate degree credit activities at the Schulich School of Business

These exceptions raise some interesting problems with respect to interpretation, particularly involving the definition of “academic activity”.  For example, the Osgoode Hall Law Journal will not be subject to a work stoppage because of its extra-curricular nature, despite awarding degree credit to senior editors.  The definition of “academic activity” can be found in the Senate policy here:

1.2 The term “academic activity” includes any work subject to evaluation or necessary for a student to meet the requirements of a course or programme of study.

In this case, it is debatable whether Law Journal activity is subject to evaluation, however it does (at least for Senior Editors) grant credit necessary to “meet the requirements of a…programme of study”.  So what to do?  In such a case, the question must be raised as to whether the Journal is more of an extra-curricular operation, or whether is it more of a degree credit academic activity.  There are many other examples of on-campus activities that lack a clear distinction, and in the event of a work stoppage due to strike or lockout, interpretation will be a factor in deciding what activities are shut down, and what activities continue.

Consistency is also a problem when deciding whether to suspend academic activities on campus.  Take Schulich School of Business, for example.  Shulich’s graduate program will not be shut down because it feels it can continue to hold classes without “compromising academic integrity”.  This is largely because no members of CUPE 3903 teach, mark, or are anyway involved with the MBA program.  However, University Senate policy recognizes the right of students to refuse to cross picket lines.  By continuing to hold class, is Schulich, a school within York University, effectively requiring its students to do so?  What about students in the joint MBA/MFA and MBA/LL.B. programs, which partner with faculties that will suspend operation?  It seems inconsistent to have some of your degree requirements suspended, and some degree requirements not suspended.  However, as is always the case with collective bargaining, there are no clear answers and compromises must be made.

For a fantastic primer on “strike law”, as applied to the CUPE 3903 and York University matter, check out Prof. David Doorey’s post here.  Note that after posting, the strike date was moved from November 2nd to November 6th, so make a mental note of the change when reading his post.

UPDATE:  Prof. Doorey is on the ball – he just posted a great piece about the Labour Relations Act with respect to CUPE 3093’s ability to picket on campus.