MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

206 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
governance, well-being and efficiency of its police service is often explicitly
assigned to the Chief of Police by statute. 33
Therefore police agencies that have implemented a tattoo policy may
claim that it is management’s right to do so and that it is not subject to
arbitration. However, this absolute right is tempered in Manitoba by
section 80(2) of the Labour Relations Act 34 and the principles laid out in
KPV Co Ltd v Lumber and Sawmill Workers’ Union, which state that any rule
unilaterally introduced by a company, not subsequently agreed to by a
union must satisfy the following requisites:
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected
before the company can act on it.
5. The employee concerned must have been notified that a breach of
such rule could result in discharge if the rule is used as a
foundation for discharge.
6. Such rule should have been consistently enforced by the company
from the time it was introduced. 35
Like the OPP tattoo policy grievance mentioned earlier, many agencies
take the position that tattoos do not support the corporate image of
neutrality and bias free policing, claiming that the restriction is justified in
the interests of fostering harmonious race relations both within the
department and within the community. The policy is clear and
unequivocal, it was brought to the attention of all employees through the
33
For example see The City of Winnipeg Charter, SM 2002, c 39, s 166(4) and the City of
Winnipeg, by-law, No 783/74, Winnipeg Police Service By-law. Police Service By-law
#783/74, s 2, which states that the Winnipeg Police Service “shall obey all lawful
directions and be subject to the orders of the Chief of Police.”
34
The Labour Relations Act, SM 1987 c L10, CCSM c L10, s 80(2). This section states
that every Collective Agreement shall be deemed to contain the following provision:
“In administering this agreement, the employer shall act reasonably, fairly, in good
faith, and in a manner consistent with the agreement as a whole”. This is not a typical
provision in labour statutes and, in the absence of such a provision elsewhere; it is a
matter of interpretation whether there is an implied reasonableness qualification.
35
Lumber and Sawmill Workers’ Union, Local 2537 v KPV Co Ltd (1965), 16 LAC 73
(available on WL Can) (Ont Arb Brd) [KPV].