Clients often ask us why their supervisors are included within
the bargaining unit. It seems inconsistent to them to have one
employee who supervises another included in the same bargaining
The Canada Industrial Relations Board ("CIRB") - the
body who determines union certifications and exclusions for all
private sector employers in the three northern territories and
other employers under federal labour jurisdiction - just released a
decision confirming its approach to excluding employees from
bargaining units. This decision will not be satisfying to Northern
The CIRB decision confirmed again that it very narrowly
interprets the two reasons set out in the Canada Labour Code for
excluding employees from a bargaining unit: confidentiality and
managerial functions. The CIRB's approach to exclusion is much
different from those of provincial labour tribunals.
For an employee to be excluded because they are "employed
in a confidential capacity in matters relating to labour
relations" three criteria must be met:
The employee must be dealing with confidential matters in
relation to labour or industrial relations. These confidential
matters do not include matters that the union or the employees
would know about, such as employee salaries or performance
evaluations. This confidential category also does not include
information which is available from other sources, such as directly
from other employees.
If disclosed, the information would have to seriously affect
the employer's interests.
The employee must be dealing with this confidential information
as a regular part of their duties. It is not enough that the
employee occasionally has access to this confidential
All three of these criteria need to be met for an employee to be
excluded under this ground.
To exclude an employee "who performs management
functions" the employee must "have real or final decision
making powers impacting the employment of other employees".
The employee must, in most cases, have the power to discipline or
discharge other employees.
The recent CIRB decision confirmed that simply being a
supervisor, is not enough to justify exclusion from the bargaining
unit. Simply calling an employee a "manager",
"supervisor" or "foreman" will not justify an
exclusion. If the employee does not have the ability to make
decisions affecting the employment of other employees, the employee
will not be excluded. Ordinarily, if the employee is a working
supervisor or lead hand, doing the same work as other employees,
the employee will not be excluded.
The Canada Labour Code specifically allows the CIRB to
include supervisors within a bargaining unit. The CIRB can put
supervisors in a bargaining unit with the employees they supervise
or the CIRB may create a separate bargaining unit of
In every case where an employer is seeking to have an employee
excluded from a bargaining unit, it is the employer who has the
burden of proof. The employer has to convince the CIRB that the
employee should be excluded.
It is important that Northern employers, and all other employers
who work under the Canada Labour Code be aware of the strict
criteria for employee exclusions. It is still possible to influence
whether supervisors and other employees are excluded from a
bargaining unit by how an employer organizes its business and
assigns responsibilities, but the employer has to fit within the
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Alberta is going through a difficult economic period. These times can be challenging and while owners struggle to get their business through the rough patch, they want to preserve the assets and capital they have built up.
Legal issues surrounding contaminated sites affects landowners, developers, realtors, as well as consultants and contractors working on the front lines. This webinar will provide a practical review of how the legislation is actually being used, recent court decisions, challenges with brownfield developments, and future changes.
Who Should Attend: This webinar will be of interest to developers, contractors, environmental and real estate consultants, realtors, owners or lessors of land which may be impacted, and municipalities.
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).