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Brief on Casuals Working in the Public Sector
Presented to the Government of New Brunswick
by the Canadian Union of Public Employees, New Brunswick
CUPE Research - June 1, 1999
The double standard of being a casual
The casual issue is a very serious problem in the public sector in New Brunswick. It is our estimate that there are over 6,000 workers working as casuals who would normally be covered under the Canadian Union of Public Employees agreements. Others would normally be covered under collective agreements of the New Brunswick Public Employees Association, the New Brunswick Nurses Union and the New Brunswick Teachers Federation.These casuals work side by side, in the same establishment with full-time
and part-time workers that are covered by a collective agreement, and have
the protection provided by the Public Service Labour Relations Act. Some
of them have been working for the government for many years. We know of
casual employees in the hospital sector that have hiring dates of anywhere
between 1975 and 1999. Some casuals are being employed on a seasonal basis.
They work 2 or 3 months in a year and they are let go. Some are waiting
at home to get a phone call to go to work. When they do get a call they
work very few hours during the week. In hospitals, we have looked at the
number of hours worked by casuals. In Region 4 (Edmundston), the average
working hours of 119 casuals was 18.87 hours a week in 1998. In Region
6 (Chaleur), the average working hours of 144 casuals was 15.95 hours for
the last 6 months of 1998. In Region 2 (Saint John), the average working
hours of 312 casuals was 19.74 hours for the last 3 months of 1998. In
the George Dumont hospital in Moncton, casual workers worked 125,452.70
hours in 1998. If you translate these figures in full-time equivalent position,
it means 64 jobs. Workers doing casual work in the Solicitor General's
Department are employed for six months, and laid off for six months preventing
these employees from gaining status under article 17(3) of the Civil Service
Act where it states: "... a person whose employment is of a temporary or
casual nature shall not be employed in any one portion of the Civil Service
for a total of more than two hundred and sixty paid days in a twenty-four
month period". Two hundred and sixty days translates into two periods of
six months. The same thing is happening with people in Community Colleges
in this province. Casuals are called in to work for two, three weeks up
to 6 months, and they cannot gain the employee status.
Casual workers are really discriminated against when it comes to wages
and benefits. For example, because the hospitals of this province are under
the Public Service Labour Relations Act, it means that casuals are excluded
from the bargaining unit. So, the nursing aides in a hospital cannot enjoy
the benefits of collective bargaining and the protection of the law. They
are paid whatever the hospital corporation decides to pay them. Usually
it is 80% of level A of the full-time rate. In 1999 this is a salary of
$9.99 an hour. If you add the benefits provided under the Employment Standards
Act you have to add 4% for vacation pay and 2.4% for holiday pay, for a
total of 6.4% in benefits or $0.6399 per hour. This would give an all-inclusive
rate of $10.63 an hour for the casuals. If the same person has the status
of an employee and is working part-time in the hospital he or she will
get $14.59 an hour after 5872.5 hours of work or the equivalent of three
years. This rate ($14.59) is an all-inclusive rate, which is the full-time
rate ($13.06) plus 11.70% to cover the payment of benefits. This means
a difference of $3.96 an hour or 37.25% for two persons that are doing
exactly the same work. Casual workers who work for the New Brunswick Liquor
Corporation perform the same duties as unionized full-time employees. They
stock shelves, work at the cash, handle considerable amounts of money,
and do all the duties required by their supervisors. On occasion they are
in charge of the store, opening and closing it. Their rate of pay is $4.50
less than the rate for full time employees, and they receive no benefits.
Another area where casuals lose is when it comes to pension. In the
last 4 or 5 years, the government has made available a defined contribution
pension plan to part-time and seasonal workers. Casual workers are not
covered under that plan. It is a big injustice, when you consider that
the vast majority of government employees do now enjoy the benefits of
belonging to a pension plan. It is also a short vision. What are those
people going to do when they reach retirement age?
Casuals can be fired and disciplined. They have no protection because
they are not under any collective agreement because the law prohibits them
to be. They cannot file a grievance because they are not employees under
the act. That leaves them at the mercy of the employer and they cannot
defend themselves.
Background on Labour Legislation in New Brunswick
It took a very long time before the government of New Brunswick gave recognition and established bargaining rights for workers. The first law that made union a legal entity was passed by the Federal government in 1872. It was called the Trade Union Act. It recognized the fact that union was in existence at the time, but it did nothing to give bargaining rights to workers or to force employers to recognize or bargain with unions. The fact that we have a federal system in Canada where there is a division of power between the provinces and the federal government brought a variety of legislation in the different provinces and of the federal government. In New Brunswick, the first legislation was brought in 1938. It was called the Labour and Industrial Relations Act. A year earlier, Nova Scotia had been the first province to bring in a similar legislation. These pieces of legislation were based on the same principles that were enacted in the Wagner Act in the United States in 1935. The Labour and Industrial Relations Act had many weaknesses and the New Brunswick Federation of Labour was quick to point them out. The mechanism for certification were non-existent, it did not force the employer to recognize the union, and the delays to get to a strike position were very long. The definition of "employee" was restrictive because it excluded domestic workers, agricultural workers and employees of the Crown (public sector employees). During the war, the Federal government introduced PC 1003, which was a piece of legislation that gave certification rights and union recognition. The government was looking for labour peace for war production purposes, because there had been a large number of strikes across the country and many of them were involving union recognition. On March 14, 1944, the Legislative assembly of New Brunswick adopts PC 1003 as its legislation governing labour relations. Contrary to the 1938 Act, PC 1003 established a board to rule on interpretation matters of the Act. Quickly, many unions did use the new act to get certification. Most other provinces followed the same step of adopting PC 1003 and in most instances, it was their first labour legislation. PC 1003 will be in effect until 1947 in New Brunswick, when the province proclaimed the Labour Relations Act that had been adopted by the Legislative Assembly in 1945. The Act had similar features as PC 1003, and it excluded persons employed in domestic service, agriculture, horticulture, hunting or trapping. Public sector employees were excluded by the fact that the Province was not considered an employer under the Act. In 1949 the Labour Relations Act was amended and "a member of the medical, dental, architectural, engineering or legal profession" were added to the exclusion in the definition of employees. Status of public sector employees did not change with this revision of the Act. At the Federal level it was not until 1967 that the Public Service Staff Relations Act finally gave federal public sector workers the right to organize and the right to strike. But it had limitations because it excluded casuals from the definition of employee by saying: "a person employed on a casual or temporary basis, unless he has been employed for a period of six months or more..." In New Brunswick, that breakthrough came in 1969 when the liberal government of Louis Robichaud adopted the Public Service Labour Relations Act. In the definition of employee, it basically followed what the Federal act had done two years earlier by excluding casuals from the definition of employee and using, word for word, the definition found in the Federal Public Service Staff Relations Act. The arrival of the Public Service Labour Relations Act in New Brunswick meant that many public sector workers who did not have the right to bargain collectively before decided to join union. For example, Liquor Store Workers were certified on March 25, 1970 with Canadian Union of Public Employees (CUPE) local 963. The groups Institutional Services Group and Institutional Care were certified May 22, 1970 and April 29, 1970 respectively with CUPE local 1251. General Labour and Trades employees working in the department of Transportation, Natural Resources and other departments were certified on May 11, 1970 with local 1190 of CUPE. Three groups in the hospitals, the Stenographic and Office Equipment, the Institutional Services Group and the Patient Services Group were certified respectively on July 8, 1970, July 8, 1970 and October 15, 1970 with local 1252 of CUPE. General Labour & Trades in the schools were certified on October 28, 1970 with CUPE local 1253. Stenographic, Typing, Clerical in Schools and School Boards were certified on March 29, 1971 with CUPE local 1253. The provincial group Rehabilitation and therapy and recreation and culture program officer was certified on October 11, 1972 with local 1418 of CUPE. Provincial Court Stenographers were certified on May 2, 1975 with local 1840 of CUPE. Clerical employees of the Workers Compensation Board were certified on December 2, 1976 with local 1866. Within six years, all of these locals brought 10,694 new members to CUPE.In 1971, the New Brunswick government replaced the Labour Relations
Act with the Industrial Relations Act. It brought more people under the
scope of the Act, by including professionals and agricultural employees
working in units of five or more. The only workers that where not covered
where the one under the category of dependant contractor and this applied
to inshore fishers. Dependant contractors are specifically covered under
the Labour Relations Act of Ontario, the BC Labour Relations Code, and
under the Canada Labour Code. In New Brunswick, the question of the inshore
fishermen was dealt with when the provincial government adopted the Fisheries
bargaining Act in 1982, thus giving those workers the right to belong to
a union and the right to bargain collectively.
In general, in the last fifty years in Canada, the trend has been to
give more and more to workers the right to belong to a union, and the right
to bargain collectively. The question of casuals is one of the few remaining
issues that is to be resolved to give all workers the right to bargain
collectively. Most provinces have legislation in place that permits casuals
to belong to a union, and to bargain collectively. The only exceptions
are New Brunswick, Nova Scotia (casuals have to work 12 months to qualify
to be employees under the Civil Service Collective Bargaining Act), British
Columbia (casuals who work less than 31 days are excluded from the BC Public
Service Labour Relations Act), and as already indicated by the Federal
government under the Public Service Staff Relations Act. In these four
jurisdictions the pieces of legislation that deal with private sector workers
do not exclude casuals.
In New Brunswick, we have had many adjudication cases, board decisions
and court decisions in the last thirty years, in relation to the casual
issue. The general trend of those decisions has been that it is very difficult
for a casual employee to attain the employee status. The Courts in particular,
have given a very narrow interpretation to the definition of casuals, and
have in fact broadened too much who is considered to be a casual. This
has lead to more and more people being considered casuals in the public
sector.
In New Brunswick, if we look more specifically one can see that under
the Industrial Relations Act casuals are not excluded. Everybody is either
considered to be a part-time or a full-time employee, and there are no
other considerations or exemptions that would divide the part-time employees
into more than one category. In the private sector, nursing aides in a
nursing home are considered to be part-time employees under the collective
agreement and under the act. They can exercise all the rights given to
them through the collective agreement and through the Act, and they are
paid the rate provided for part-time employees in the collective agreement.
If they feel their rights have been violated they can file a grievance
that will be processed in a normal manner as per the collective agreement,
and the Industrial Relations act. It is quite incredible that employees,
(hospital and nursing homes) both totally paid for by the government, are
treated differently. One group (nursing homes) can enjoy all the rights
under the law and the other group (hospitals) has no rights under the law.
In the private sector, general workers can enjoy the benefits of being
represented by a union. For example part-time workers, represented by Local
1065 of Retail, Wholesale and Department Store Union at a Co-op in Moncton,
Rogersville, Richibucto, Dalhousie, Robertville, are in the union. They
enjoy better benefits than what is provided by the Employment Standards
Act, better wages than the minimum wage, and they are part of the pension
plan. They have chosen democratically, through the process under the Industrial
Relations act, to join the union. The most important aspect is that, because
they are covered under the Industrial Relations act, they can and they
do participate in the affairs of the union. In most instances, they have
representatives on the bargaining committee when the time comes for negotiations.
They can be elected to positions in the union. They have the right to file
grievances on all matters covered by their collective agreement.
Contrary to International Labour Organization Principles and United Nations Universal declaration of Human Rights
By excluding casual from the definition of employee in the Public Service Labour Relations Act of New Brunswick this government is violating the International Labour Organization (ILO) principles. In 1948 the ILO issued convention C87 called the Freedom of Association and Protection of the Right to Organise. Article 11 states: "Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise." Canada signed this convention in 1972 and clearly the provision against the casuals is contrary to Article 11. The ILO has adopted other conventions over the years like C154 Collective Bargaining Convention, C151 Labour relations (Public Service) Convention, and C98 Right to Organise and Collective Bargaining Convention. They state that workers have the right to join a union, and the right to bargain collectively. Public sector workers and casuals are no exemption.The Universal declaration of Human Rights was adopted by the United
Nations in 1948. It states in Article 23 (4) that: "Everyone has the right
to form and to join trade unions for the protection of his interests."
Because casuals are not in the definition of employee they cannot belong
to a union to protect their interests. In the past, casuals have paid union
dues to unions in New Brunswick. We know of such a case with the Canadian
Union of Public Employees and the Nurses union in the hospital sector.
But, because those union dues paying members could not be represented by
the union at a grievances or at a hearing of the Public Service Labour
Relations Board, the New Brunswick Council of Hospital Unions of CUPE stopped
deducting union dues from the casuals. Our Minister of Labour thinks that
the Universal Declaration of Human Rights is a good thing. Last year she
said in a news release: "Fifty years ago today, the United Nations signed
the Universal Declaration of Human Rights, an historic moment made possible
by a New Brunswicker, the late John Humphrey". If she is in agreement with
that document she should propose amendments to the Public Service Labour
Relations Act to stop this discrimination against casuals.
Casuals and Part-time Work
Part-time work is a growing phenomena in New Brunswick and in Canada. It used to be that workers were working too many hours in a week. At the turn of the century, it was common for workers to work 10 to 12 hours in a day, and spend 6 days in a week at work. Today we have a different problem. Many working people cannot work enough hours in a week to earn a decent living. They are what is referred to as "Involuntary" part-time workers. One researcher in looking at that phenomena said: "Involuntary part-time employment comes at a high cost to those compelled to take it. People in these jobs work about 20 to 25 fewer hours per week than their full-time counterparts, and their average hourly wages are lower. The combined result is that their average weekly earnings are several hundred dollars below those of full-time workers in similar occupations. Over the course of a year, the accumulated loss of earnings can easily reach many thousands of dollars."(1)More and more jobs are part-time. One report said that in Canada: "The
rate of part-time work has risen steadily since the 1950's, when less than
five per cent of jobs were part-time."(2) In 1969, when the Public Service
Labour Relations Act was adopted in New Brunswick, there were only 16,000
part-time workers in both the public and private sector. This represented
only 8.6% of the total workforce in the province. We could say at that
point that it was not a major problem. In 1976 11% of all jobs in New Brunswick
were part-time while it went up to 17% in 1996. In 1997, 53,000 New Brunswickers
were working part-time. Women are the most hardly hit because out of these
53,000 workers 38,000 were women.(3) One report states that in New Brunswick,
between 1976 and 1996, the following problems are happening: "The proportion
of men working part-time has increased from 5 to 9 percent. These levels
are well below those of women since roughly one woman in four worked part-time
in 1996."(4) While this is a dangerous trend for society as a whole the
government could avoid it. The government has a role to play in promoting
the creation of good paying jobs in the private sector. Government can,
by its own actions, create many good paying jobs in the public sector.
Conclusion
The injustice has to stop. Workers working side by side should not be treated differently. Workers in New Brunswick have to be treated equally whether they work in the private sector or the public sector. The government of New Brunswick cannot continue to ignore the conventions of the International Labour Organization, and it cannot ignore the content of the Universal Declaration of Human Rights. These are standards that were set for workers to achieve dignity in a fair and democratic society. As a country or as a province, we are not to be the worst abusers of human rights. This casual situation is not good for New Brunswick's reputation. The government of New Brunswick can correct this by striking down the two sentences that deny the fundamental right to collective bargaining in the Public Services Labour Relations Act.RL:vb * opeiu 491
Research - Brief - Casual Brief June 1999
Bibliography
1. Grant Schellenberg; "Involuntary part-time workers", Perception, vol.18, no.3&4, The Canadian Council of Social Development.2. "The Changing Nature of Part-time Work", Backgrounder, Social Research Series Report No. 4, The Canadian Council of Social Development.
3. Samuel Lebreton; Labour Market Annual Averages for New Brunswick, 1996-1997, Appendix B, Table 5, Human Resources Development Canada.
4. Samuel Lebreton; New Brunswick at the Doorstep of the 21st Century,
Human Resources Development Canada, p.8.
Summary of Brief Presented to
the Deputy Minister of Finance
and the Deputy Minister of Labour
Casual workers in New Brunswick do not enjoy the same basic rights as other
workers. They work side by side with full-time and part-time workers, yet
they are paid less, do not receive the same benefits and cannot be covered
under collective bargaining agreements. Some work for two or three months
in a year and are let go and others wait by the phone in hopes of landing
a shift.
Nursing aides are not included in collective bargaining. They are paid whatever the hospital corporation decides to pay them. Including vacation and holiday pay casuals earn $10.63 an hour. The all-inclusive rate for a part-time hospital employee is $14.59. The difference is $3.96 per hour or 37.25 per cent.
New Brunswick Liquor Corporation casual workers perform the same duties as unionized full-time employees. On occasion they’re even in charge of opening and closing the store. Yet they receive $4.50 less per hour and they receive no benefits.
The casual issue is a very serious problem in the public sector in New Brunswick. CUPE estimates that there are over 6,000 casual workers that would normally be covered under CUPE agreements.
Casual workers are technically not considered employees and they are not entitled to pension plan coverage, they can be fired or diciplined without recourse, and they cannot file grievances.
The Public Service Labour Relations Act was adopted in 1969 and has yet to be amended to include casual workers. Most provinces have legislation in place that permits casuals to bargain collectively. The only exceptions are New Brunswick and Nova Scotia.
Under New Brunswick’s Industrial Relations Act casuals are considered employees. All workers are considered either part-time or full-time employees and there are no special considerations that would divide the part-time employees into more than one category.
In the private sector, nursing home nurses’ aids are considered part-time
nurses. They can exercise all the rights given to them and are paid the
rate negotiated under their collective agreement. But nurses’ aids in hospitals
are denied these basic rights. .
By excluding casual workers from the definition of employee under the
Public Service Labour Relations Act this government is violating principles
adopted by the United Nations (UN) under the Universal Declaration of Human
Rights and the International Labour Organization ILO.
Article 11 of the ILO’s convention C87 states: “Each member of the ILO for which the convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers exercise freely the right to organize.” Canada signed this Declaration in 1952.
Article 23 (4) of the UN’s Universal Declaration of Human Rights states: “Everyone has the right to form and to join trade unions for the protection of his interests.” In New Brunswick, because casual workers are not considered employees, they cannot protect their interests by associating with a union.
Many working people cannot work enough hours in a week to earn a decent living. People in this position work less and make a lower hourly wage. This results in paychecks that are several hundred dollars lower than those of full-time workers in similar occupations.
The rate of part-time work has risen steadily since the 1950s. In 1969 when the Public Service Labour Relations Act was adopted there were only 1600 private- and public-sector part time workers. In 1997, 53,000 New Brunswickers were working part-time, and of those 38,000 were women.
The injustice has to stop. Workers working side-by-side should not be treated differently. The New Brunswick government can’t continue to ignore the conventions of the ILO and the content of the Universal Declaration of Human Rights. The government can correct this by striking down the two sentences that deny the fundamental right to collective bargaining in the Public Service Labour Relations Act.
Table of Contents
The double standard of being a casualBackground on Labour Legislation in New Brunswick
Contrary to I.L.O. Principles and U.N. Universal declaration of Human Rights
Bibliography
Executive
Summary
