This article is for unionized workplaces. It explains briefly how a workplace may become unionized and highlights some of the procedures and avenues that may be available to unionized employees who are concerned about their employment or union representation.
Voluntary Recognition and Certification Applications
Employers may voluntarily recognize a union as the representative for its employees.
However, in most situations a union will usually acquire bargaining rights for a group of employees through a legislated certification process.
In Ontario, the central piece of legislation is the Ontario Labour Relations Act (OLRA). As well, there is specific legislation for certain sectors such hospitals, firefighters, police and government.
The Ontario Labour Relations Board (OLRB) is the tribunal established under the OLRA for the purpose of administering and determining disputes under the OLRA and other statutes.
Under the OLRA different rules for apply to applications to unionize construction workers and applications for to unionize other types of workers (such as factory and office employees).
The OLRB’s Rules impose strict and very short time-limits for the filing of materials and forms in response to a certification application.
Different but similar statutes exist for employees falling within federal jurisdictions (such as airlines and phone companies, federal government). Most federally regulated employees fall under the labour law provisions of the Canada Labour Code (CLC), which is administered by the Canada Industrial Relations Board (CIRB).
If you are employed in a unionized workplace and are one of the group of employees (bargaining unit) represented by the union, the terms and conditions of your employment will be governed by an agreement negotiated between the union and the employer (collective agreement).
Generally, a unionized employee may not contract directly with the employer over working conditions. It follows that unionized employees do not have the right to sue for wrongful dismissal in court.
Employees should familiarize themselves with the collective agreement applicable to their bargaining unit.
- Some workplaces will have multiple units with corresponding collective agreements that cover different categories of employees or work locations.
- In other situations, one collective agreement will apply to a number different categories and worksites.
Unionized employees may seek redress through a grievance procedure if there is a dispute over the employer’s administration or application of the collective agreement. If the grievance is not resolved, the dispute may be advanced to arbitration. Except in rare situations, the Union will have the right to decide whether to withdraw, settle or refer a grievance to arbitration.
Instead, the OLRA and the CLC provide that all disputes under a collective agreement must be resolved through a grievance procedure. In a situation where a grievance is not resolved, it may be referred to arbitration.
Most collective agreements givethe union with the right to choose which grievances it will refer to arbitration. This is often referred to as“grievance carriage rights”under which the union may exercise its discretion not to advance a grievance to arbitration.
The OLRA and the CLCrequire the union to represent its members “fairly”. In this context “fairness” means that a union cannot not exercise its discretion in bad faith, or in an arbitrary or discriminatory manner.
Procedures exist under the OLRA and CIRB for an employee to complain if they believe that the union has not met its “Duty of Fair Representation” – sometimes called a DFR application.
Notably, the case law has evolved in such a way so as to leave unions with a significant degree of latitude in how to exercise their exclusive right to represent the individuals within the bargaining unit.
Consequently, DFR applications rarely succeed. It is important to note that, even where a DFR application is granted, the OLRB (or CIRB) does not have jurisdiction to determine the merits of the employee’s grievance. This means that, the remedy in a DFR application will likely be limited to a declaration and/ora direction that orders the union to refer the underlying grievance to arbitration on certain terms and conditions.
Unionized employees and non-union employees in Ontario have the same rights under the Human Rights Code. This means that a unionized employee mayfile a human rights application to the Human Rights Tribunal of Ontario (HRTO). The HRTO has special rules in place under which it will usually defer processing an application where the employee has also submitted a grievance under a collective agreement dealing with the same subject matter.
It is crucial to point out that the 12-month time limit for filing a human rights complaint is same for all applicants – union or not. The 12-month time limit for filing an application to the HRTO under the Human Rights Code will not be extended because the employee waited to see the outcome of a grievance.
Health and Safety
Similarly, the rules under Occupational Health and Safety Act apply to union and non-union employees. A unionized employee may elect to file a timely health and safety complaint as a grievance under the collective agreement or a complaint to the OLRB under the Act.
Workplace Safety and Insurance
Unions represent workers in their relationship with their employer. They are not required to advocate for members in connection with Workplace Safety and Insurance Board (WSIB – formerly “Workers’ Compensation Board”) under the Workplace Safety and Insurance Act (WSIA).
While some unions do provide support for their members in this area,others do not. Subject to the terms of the unionized worker’s collective agreement, the unionized worker has the same right as non-unionized employees to seek professional representation in workers’ compensation claims.
Whatever the situation, it is advisable to assess the available avenues of redress without delay.
Time limits for advancing a grievance under collective agreements are not standardized. They vary from one agreement to the next.
The time limit to bring a DFR application to the OLRB is generally considered to be six (6) months. Under the Canada Labour Code, the strict time limit to file a DFR application is much shorter – 90 days.
Readers are encouraged to seek professional advice promptly if they have questions about time limitsunder other statutory regimes.
Note to Readers:
This summary is intended to provide assistance to you in understanding the basic framework in order to help you in seeking professional advice. This document is not exhaustive and is not legal advice for any specific situation.