Most franchisors understand that franchisees are responsible for their own employees, and that a specific benefit of this arrangement is that it protects the franchisor from employment-related obligations to the franchisee’s employees. Many franchisors believe that the arrangement completely insulates them from such risk. However, under Canadian law, a franchisor can sometimes be treated as an employer of a franchisee’s workers.

This concept is known as the common employer doctrine. It does not just apply to the franchisor and franchisee relationship, but with any work arrangement involving multiple employers who may exercise control over the same  workers. When it applies, a worker may be able to pursue employment-related claims against both the franchisee and the franchisor.

While these cases are highly fact-specific, franchisors should understand the types of involvement that can increase legal risk.

What Is a Common Employer?

Canadian courts recognize that an employee may have more than one employer at the same time. In certain circumstances, related businesses can be treated as a single employer for employment law purposes. The analysis focuses less on corporate structure and more on the reality of the working relationship.

Courts will often examine whether multiple entities exercise significant control over a worker or operate in a way that suggests they jointly employ that worker.

Continue Reading How Much Control Is Too Much? Common Employer Risks for Franchisors

Special thanks to our articling student Viesakan Sivaraj for contributing to this update.

1. Negotiating a First Collective Agreement in Ontario

Once a union is certified, the employer must immediately turn their attention to negotiating a first collective agreement. The Ontario Labour Relations Act, 1995, (the “Act”) prescribes the timelines and rules for negotiating a collective agreement. Understanding these rules can assist employers with navigating negotiations and ensuring compliance with the Act during bargaining.

General Guidelines

Once a union is certified or voluntarily recognized, it must give written notice to the employer to begin bargaining for a collective agreement (Section 16). The employer and union must meet within 15 days of receiving notice, unless they agree otherwise, and bargain in good faith, making every reasonable effort to reach an agreement (Section 17). Either party may request that the Minister of Labour appoint a conciliation officer to help resolve differences and assist both sides in reaching an agreement (Section 18). Any agreement reached must be ratified by a vote of the bargaining unit employees, with limited exceptions, such as in the construction industry.

The agreement must be filed with the Ontario Ministry of Labour, Immigration, Training and Skills Development and all collective agreements that are filed with the Ministry are published on the Ontario government’s Collective Agreements e-Library Portal website. If the union fails to give notice to bargain within 60 days of certification or fails to start bargaining, the Ontario Labour Relations Board (the “Board”) may terminate its bargaining rights (Section 65), though this is extremely rare. Generally, once a union is certified, they are here to stay.

Key Timelines

There is no fixed deadline for finalizing the first agreement, but the Act provides mechanisms to address delays, impasse, or bad faith bargaining. Under section 43(1) of the Act, where the parties are unable to reach a first collective agreement and either a conciliation board will not be appointed or the conciliation board report has been released, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

The Board must issue a decision on whether to arbitrate within 30 days of receiving the application. Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board must appoint a date for and commence a hearing within 21 days of receiving notice and must determine all matters in dispute and release a decision within 45 days of the commencement of the hearing.

A first collective agreement settled under Section 43 of the Act is effective for 2 years from the date of settlement. If no agreement is reached within one year of certification, employees may apply to decertify the union (Section 63), though again, this is rare.

Continue Reading From Bargaining Table to Arbitration: Navigating First Agreements, Renewals, and Back-to-Work Orders

We’re bringing the world to you. Join Baker McKenzie for our annual Global Employment Law webinar series.

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The Ontario government introduced Bill 66, Restoring Ontario’s Competitiveness Act  (“Bill 66”) on December 6, 2018. If passed, Bill 66 will make amendments to several pieces of legislation in Ontario. The government has stated that its objective in introducing these changes is to “lower business costs to make Ontario more competitive” and to “harmonize regulatory requirements with other jurisdictions, end duplication and reduce barriers to investment.” We outline below the proposed changes to the province’s labour and employment legislation below.
Continue Reading Ontario’s War on “Red Tape” Continues: PC’s Table Bill 66

On October 23, 2018, the Ontario government introduced Bill 47, Making Ontario Open For Business Act, 2018, to repeal numerous provisions of the previous government’s Fair Workplaces, Better Jobs Act, 2017  (Bill 148). The government indicated that the proposed amendments are designed to “remove the worst burdens that prevent Ontario businesses from creating jobs while expanding opportunities for workers.” We outline the key provisions of Bill 47 below.
Continue Reading Ontario Government Introduces Bill 47 to Reverse Most of Bill 148

Recent polling suggests that the June 7th Ontario election is a hotly contested race with the NDP currently holding a lead in the polls and the PCs in second place. We are closely monitoring the election developments to keep you informed as to what a new government will mean for Ontario employers.

Below we outline the NDP’s proposed reforms to employment and labour laws. If pursued, the NDP’s proposed initiatives set out in their platform will significantly impact employers and go well beyond the changes recently introduced by the Ontario government under Bill 148.
Continue Reading Another Orange Crush? What to Expect from an NDP Government

We recently wrote about the Ontario government’s proposed changes to the province’s employment standards and labour relations legislation – see our blog posts here and here. On June 1, 2017, the Minister of Labour, the Honourable Kevin Flynn, introduced legislation to affect these changes.
Continue Reading Early Approval Across Party Lines for ESA & LRA Amending Legislation