What to do if your union does not (fails to) represent or help you?
In other words…
“My union isn’t supporting me…”
Do you feel this way?
Understanding Laws For Unionized Workers
*For the purposes of this blog, the terms ‘worker’ and ‘employee’ will be used interchangeably unless otherwise specified. There’s a common misconception that exists when it comes to workplace law. The terms ‘labour’ and ‘employment’ law are frequently lumped together, and used interchangeably. Lawyers that advise employees and employers from private corporations are frequently referred to as ‘labour lawyers,’ and it is just as often assumed that employment lawyers deal with unionized employees. This is mostly incorrect. To make the distinction clear, ‘labour’ law involves the 1/3 of workers in Canada who are part of a union, whereas ‘employment’ law deals with the 2/3 of Canadians in the workforce who are non-unionized.
Unions vs. Privatized Employees
From a legal perspective, the main distinction comes down to the laws themselves. Unionized workers are subject to a collective bargaining agreement, which guides their working relationship with their employer. These workplaces are further enforced by federal or provincial laws, such as the Ontario Labour Relations Act . These laws are unique to unionized workplaces, just as privatized employees are subject to the Employment Standards Act in Ontario. While there is a federal Canada Labour Code that covers both unionized and non-unionized employees, it only applies to a smaller number of federally regulated workers. The main difference though that sets the two worlds apart are the existence of unions. While privatized employees are generally thought to be protected under the law and their employment contract, unionized employees have the added protection of a union going to bat for them. The union is designed to protect its workers, and ensure fair working conditions and equal treatment in the workplace. When there is a problem at work, the union is supposed to be the first line of defense. So what can an employee do if their union isn’t working for them?
Laws That Still Apply
The union is intended to be an employee’s first line of defense when it comes to problem-solving. A collective bargaining agreement is a contract that an employee makes with their union that the union will represent them, so it is the employee’s responsibility to honour this contract and approach the union first. Before proceeding with any sort of legal remedy, a unionized employee must first consult with their union, but should also broach the issue with their employer, where applicable. The employer is still responsible for the workplace, and if they can remedy the situation simply then it may remove the need for legal proceedings. However, for employees who are having issues that are not resolved by going through their union or their employer, there may still be options. There are some overarching workplace laws that still apply to both unionized and non-unionized environments. For example, Ontario’s Occupational Health and Safety Act (“OHSA”) will still apply, which mandates healthy and safe working conditions for employees, and contains strict requirements that employers deal seriously with workplace harassment and bullying, including workplace sexual harassment. A unionized employee subject to such harassment may be able to make a claim under OHSA if the employer does not deal thoroughly with such treatment through their internal policies. Additionally, unionized workplaces are still subject to human rights legislation, such as Ontario’s Human Rights Code (the “Code”). The Code protects employees from discrimination under a variety of categories including race, religion, gender, sexual identity, place of origin, and disability, just to name a few. Unionized employees may be able to make a claim to the Ontario Human Rights Tribunal for discrimination under the Code, but only if both the union and the employer have failed to remedy the situation first. These claims may be possible, but they are incredibly difficult to prove. Courts and tribunals will usually pay deference to the union, and an employee must have a very strong case to be successful in these claims.
Duty of Fair Representation
While employees are obligated to resolve problems through their union first, unions have a duty under the law to represent employees fairly. In legal terms, unions cannot act in a way that is arbitrary, discriminatory, or in bad faith. The union cannot refuse to carry on an employee’s grievance because of any sort of personal disagreement, or based on any discriminatory characteristics. The unions cannot be dishonest with their members, or act in ways that unfairly go against their members’ interests. If the union is violating this duty, the employee may be able to bring a claim before the labour board that the union has violated its duty of fair representation. However, these claims are also not easy. Some of these claims have strict timelines that must be followed for the labour board to even hear the claim. The labour board also has discretion, and is generally hesitant to side against the union unless the circumstances are extreme. These claims are difficult to prove, and require the strongest of evidence to have even the potential for success. If you have made every effort to resolve the problem through your union and still have not been successful, contact us today to schedule a consultation with one of our lawyers.