Labour Law vs Employment Law
It’s common to think that Labour Law and Employment Law go hand in hand. Most lawyers who practice in one area or the other will even frequently lump them together. But there is a key difference between the two.
Labour Law is the law that deals with employees represented by a union. In Ontario, roughly 1/3 of the working population is represented by a union. These unionized workplaces are under contracts called Collective Bargaining Agreements that determine the terms and conditions of the workplace. When these employees have workplace issues, the Union is usually the one representing them in their dispute.
Employment law is the law that covers non-unionized employees in Ontario, or the other 2/3 of the working population. These are the employees that fall mostly under the Employment Standards Act, or in some industries under the Canada Labour Code. These employees can hire a lawyer to help them resolve their workplace disputes.
My Union Isn’t Helping
For unionized employees, the union is, by way of their rights and responsibilities under the collective agreement and the applicable laws, the first line of defence. If you do have a workplace issue or are looking to make a grievance, the union is the group responsible for helping to address your concerns.
However, unions do not always represent their workers in the way they feel they should be heard because they are not perfect. Unions have what is called in law a Duty of Fair Representation to their workers, and they do not always meet this duty. If you believe your union is not representing you fairly, call us for a consultation to see how we can help resolve your issue.
What is the Duty of Fair Representation?
Under the Ontario Labour Relations Act (or the Canada Labour Code if it applies to the workplace), unions have a duty not to actin a manner that is “arbitrary, discriminatory, or in bad faith” to how they represent their employees.
What does this mean? Well, the Union cannot act arbitrarily,which means they cannot make decisions on whether or not to go ahead with a grievance without first considering the entire situation, and weighing the employee’s interests.
Unions also cannot discriminate, which means they cannot decide on a grievance based on discriminatory criteria such as race, religion,gender, or medical condition. Not every instance of differential treatment is discriminatory, but unions should not be discriminatory in the way that they handle their members.
Lastly, unions are prevented from acting in bad faith in how they handle their members. This means they cannot treat their members with malice or ill-will, or be deceitful or dishonest in how they deal with their members.
If a unionized employee has tried to go through their union to handle their grievance but feels that the union has violated this duty, then an employment lawyer may be able to help.