by Joe Caligiuri

It is very common for individuals to use the terms “employment” and “labour” interchangeably when seeking legal advice in these areas. It is important to understand that these areas are actually quite distinguishable at law. “Employment law” generally deals with individual employment contracts in which the employee is not a member of a union or bound by a collective agreement. On the other hand, “labour law” generally applies to work environments that are governed by either The Labour Relations Act in Manitoba or the Canada Labour Code where the employee is subject to a collective agreement and is a member of a union.

Employment Law

In the employment law context, a contract between the employer and the employee may be a formal written agreement or a signed offer of employment which the employee has accepted and signed. Often, there is no formal written contract and the employment contract is instead a combination of written terms (such as an offer of employment letter), oral terms (such as promises made by the employer), policies and practices of the employer, which the employee has relied upon and other implied terms at common law. The common law implies certain obligations in the employment relationship, including an employee’s obligation of fidelity as well as confidentiality of employer information. The common law also implies the obligation of the employer to provide an employee with reasonable notice of termination, or pay in lieu of notice, unless the dismissal is deemed to be for “just cause” (please see our previous article on Termination of Employment in the employment law context).

Each jurisdiction in Canada has employment standards legislation and in Manitoba it is called The Employment Standards Code (“ESC”). The ESC sets minimum requirements for certain terms and conditions of employment, including minimum wage, hours of work and overtime, vacation, holidays, maternity and parental leave, and notice of termination. In that same vein, the ESC does provide for exclusions from some employment standards minimums entitlements for certain types of employees. Specifically, an employee who performs management functions primarily or an employee who has substantial control over his or her hours of work are excluded from these areas (such as a Department Manager).

Labour Law

In the labour law context, each jurisdiction in Canada has its own labour relations board. The Manitoba Labour Board (the “Board”) is responsible for the oversight of The Labour Relations Act which functions to foster and maintain sound and harmonious labour/management relations throughout the province. It does so in a number of ways not the least of which is by granting certification to bargaining agents who represent the majority interests of employees within specific bargaining units. In that regard, the Board is tasked with processing and hearing applications brought by, both individuals, unions and employers, dealing with a wide variety of relief sought in the labour context.

Once a union has bargaining rights, the employer is obligated to bargain in good faith to establish a first collective agreement. Many individuals who work in a unionized environment will be familiar with their collective agreement, which provides certain terms and conditions of employment for a group of employees. Unlike employment law where an individual will have a personal employment contract with the employer, the collective agreement is the binding contract between the union and an employer, which governs all of the employees in that particular bargain unit.

Every collective agreement has procedures in place to enforce employee’s rights, typically referred to as the dispute resolution process. This process allows a union to file a grievance on behalf of members and potentially, refer that grievance to arbitration. If a unionized employee brings forward a grievance, the grievance arises on behalf of the union and not the individual employee. Therefore, the union ultimately has control of whether the grievance will go to arbitration. A major benefit of this dispute resolution process is the cost would be covered by the union through the dues that are paid in a unionized environment. Notably, however, in the unionized context, an employee does not have an independent right of action against an employer. Ultimately, that action must go through the union.

If you would like more information about employment law or labour law, please feel free to contact one of the lawyers in our Labour Law or Employment law practice areas.