Labour Relations Board Clarifies Notice and Consultation Obligations for Temporary Layoffs
June 4, 2020
June 4, 2020
The Labour Relations Board has issued an important policy decision clarifying when 60 days notice must be given, and consultation with the union must occur, where a temporary layoff is contemplated.
In Tolko Industries Ltd. and United Steelworkers Union Local 1-2017, 2020 BCLRB 57, issued on May 28, 2020, a reconsideration panel overturned the original panel’s decision that Tolko breached section 54 of the Labour Relations Code when it did not provide the Union with 60 days’ notice of a layoff. Section 54 provides:
54 (1) If an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees to whom a collective agreement applies,
(a) the employer must give notice to the trade union that is party to the collective agreement at least 60 days before the date on which the measure, policy, practice or change is to be effected, and
(b) after notice has been given, the employer and trade union must meet, in good faith, and endeavour to develop an adjustment plan, which may include provisions respecting any of the following:
The uncertainty arising from the original panel decision in this case, and from an earlier Board decision (Wolverine Coal Partnership, BCLRB No. B185/2015) was whether section 54 applied to all temporary layoffs. The original panel held that Tolko breached section 54 when it did not comply with section 54 for a temporary layoff with no fixed recall date caused by a variety of market and operational conditions. However, the original panel decided not to order a remedy to the Union (ordinarily damages in the amount of 60 days’ wages to all laid-off employees) because of the nature of the conditions that caused the layoff.
Tolko appealed the finding that section 54 applied to the layoff at all, and the Union cross-appealed the decision not to award a remedy.
The original decision raised concern in the employer community that the section 54 requirements would apply in circumstances where operational curtailments were a normal response to market conditions and in circumstances where the employer could not wait 60 days to implement the layoff and would incur damages for failure to do so.
In this important policy decision, the reconsideration panel consisting of the Board Chair, the Associate Chair, and a Vice-Chair made the following determinations:
- Whether section 54 applies depends on the nature of the layoff and whether it is a predictable feature of the employment relationship.
- A decision to implement a temporary layoff responsive to market or operating conditions, but with no specified recall date, does not, itself, trigger section 54 obligations.
- Workplace and industry evidence is of assistance in determining whether a temporary layoff is a predictable feature of the employment relationship. The reason for the layoff need not be the same.
- A long term layoff of indefinite duration, beyond what may be customary in the industry, will likely invoke section 54 requirements.
- The determination of whether section 54 applies to a particular layoff is to be determined in light of the circumstances as of the date a decision to lay off is made or implemented.
Applying these principles to the facts of the Tolko case, the reconsideration panel overturned the original panel’s finding that section 54 applied to the layoff. Given the finding that there was no breach of section 54, the Union’s appeal of the remedy decision was moot.
Temporary curtailments and layoffs have long been part of the forest industry in this province, whether due to market forces, seasonal weather, or other factors. The Board’s decision provides considerable comfort for employers that temporary curtailments will not create significant labour liabilities.
For advice regarding a planned curtailment in your operation, please contact a member of our firm.
Thomas A. Roper, Q.C. and Melissa Dhillon were co-counsel for Tolko in Tolko Industries Ltd. and United Steelworkers Union Local 1-2017, 2020 BCLRB 57. They are employment, labour and workplace human rights lawyers at the Vancouver-based boutique firm of Roper Greyell LLP – Employment and Labour Lawyers.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.