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LEGAL REPOR T: LABOUR AND EMPLOYMENT As businesses try to save money and their own skins, labour and employment issues can be very tricky. BY JUDY VAN RHIJN Legal-proofing labour law in recessionary times All across the country, labour lawyers are seeing an upswing in activity indicating a downturn in fortunes. Ron Pink, man- aging partner of Pink Larkin in Halifax, has noticed a large increase in cold calls from individual employers since Janu- ary and calls the slowdown "profound." André Nowakowski, a labour lawyer at Miller Thomson LLP in Toronto, has seen activity picking up since last fall. "It doesn't matter what size the employer, we are seeing it everywhere. It's a painful process for everyone." Duncan McPhail, the managing part- ner of Roper Greyell LLP in Vancouver, I n recessionary times employers look to save costs by reducing labour costs, and those times have come to Canada. says in recent months, he's been seeing not just downsizing through layoffs and terminations, but attempts to reduce the costs of doing business by introduc- ing new efficiencies so businesses can weather the economic storm. Lawyers who specialize in this area give grave warnings about lawyers without labour and employment experience "dab- bling" without getting specialist advice. "If clients are restructuring for reasons of cost, you need to get advice from people who are practising in the area all the time," stresses McPhail. "You need a plan that's going to work. There is a risk of going offside of the law." Referral to a specialist is also recommended when cal- culating the anticipated cost of severance 42 M AY 2009 www. C ANADIAN Law ye rmag.com that a company will have to bear. "You can't do that to the nickel but you can provide a ballpark range." Nowakowski says when advising a client going through hard times, plenty comes into play when pinpointing trou- ble spots. "Federally the Canada Labour Code and provincially the employment standards acts, the common law in a non-unionized environment, and the collective agreement in a unionized envi- ronment. These three things set out the general rules." McPhail agrees. "When you are about to embark on a plan that has an impact on the workforce, you tread on a whole raft of different labour rules, principles, and laws. The client who is about to MARCO CIBOLA