Brief Description of Employees’ and Employers’ Associations
Each jurisdiction in Canada, including the federal jurisdiction, has legislation governing labour law. The labour legislation of the various Canadian jurisdictions governs how trade unions become certified, how they retain the authority to act as the exclusive bargaining agent for a group of employees, what obligations are created for the employer of those employees, and the framework to govern collective bargaining.
Labour law in Canada is founded on the Wagner Model, originating in the United States in 1935, whereby strikes and lockouts are prohibited during the term of a collective agreement and, in return, management is required to negotiate with a recognised bargaining agent, typically a trade union. This model is intended to ensure industrial stability. There is a single bargaining agent for each bargaining unit. Most bargaining units cover all non-management employees, regardless of trade, and are limited to a single employer at a single location or within a specified geographical area. In other words, Canada does not have multi-union, multi-employer bargaining units; however, some sectors (notably in the construction industry and sometimes in health care) feature industry-wide bargaining. The Wagner Model also features the concept of residual management rights, which ensures that employers retain an overriding measure of control over the means and methods of production, subject only to the limitations that are bargained with the union or otherwise exist as a matter of law or practice.
Collective bargaining provisions typically deal with both process and substance. Process provisions include work stoppages (strikes and lockouts) and the grievance and arbitration process, whereas substantive provisions include mandatory and permissive terms and conditions for the collective agreement. Labour statutes also place a duty of fair representation on unions with respect to the employees within a bargaining unit. Disputes between parties are submitted to arbitrators or to specialised administrative tribunals located in each jurisdiction.
Rights and Importance of Trade Unions
Once a union acquires bargaining rights it becomes the legally recognised exclusive agent of all employees in the bargaining unit that is determined to be appropriate for collective bargaining. This exclusive representative entitlement for a certified union applies to all employees whether or not an employee supported the union during an organising campaign and even holds true in situations when an employee actively opposed the union. The union’s legal status as agent is not affected by whether or not an employee chooses to be a member of the union. The only relevant consideration, once the union has acquired bargaining rights, is whether or not the employee falls within the bargaining unit for which the union has been recognised or certified as the bargaining agent. In most jurisdictions, all employees in the bargaining unit are required to pay union dues, regardless of their membership in the union.
An employee who is in a bargaining unit that is represented by a trade union loses the individual status of employment that pre-existed the trade union’s certification. As such, any individual contract of employment is effectively terminated and replaced by the terms and conditions of the collective agreement. Moreover, an employee who is represented by a trade union loses the right to sue, in respect of a dismissal or in respect of some other alleged breach of terms and conditions of employment.
The various labour and employment statutes continue to apply to unionised employees; however, processes may be affected by the presence of a trade union. As such, applications arising under a statute (such as human rights, employment standards, and health and safety) may have to be processed through the grievance and arbitration procedure or often are pursued in that manner even if there is not a specific obligation to do so. Arbitrators appointed pursuant to the arbitration procedure have extensive authority to consider all matters related to employment.
The union has a duty to fairly represent all employees in the unit for which it holds bargaining rights. The union has carriage of individual grievances as well as group or policy grievances and has the final determination as to whether or not a grievance merits the time and expense of an arbitration proceeding. In practice, it is rare for a union to not proceed to arbitration with a discharge grievance that cannot be resolved; however, the theory holds true that the union retains control of the process throughout. Unless supported by the union, and subject to principles of fair representation, an individual grievor cannot force the union to take his/her case to arbitration. It should be noted that an individual grievor who does not have the support of the union may, in appropriate cases, have direct access to adjudication under human rights or health and safety legislation.
Types of Representation
Some non-unionised workplaces may establish a joint management-employee board or committee to address workplace issues. This type of process is not mandated by law and is entirely voluntary for employers. Joint management-employee boards or committees are generally implemented by employers operating in industries that are largely unionised, in order to provide employees with some form of representation other than the representation of a trade union.
Each organisation that elects to establish such a committee or board may determine its own rules and procedures, including the tasks and obligations of representatives on the committee or board; how many employee representatives will be on the committee; and how those representatives will be appointed or elected.
Other Types of Employee Representative Bodies
Some employers may be required under provincial health and safety legislation to establish a joint health and safety committee (JHSC). JHSC’s are mandated for certain employers under the health and safety legislation of every province in Canada. In general, the requirement to establish a JHSC will be based on the number of workers the company employs, and the JHSC must be composed of both worker and employer representatives. The mandate of a JHSC is to improve health and safety conditions in the workplace by raising awareness of health and safety issues, identifying safety risks in the workplace and recommending solutions to the employer. In Ontario, employers with more than 5 employees are required to have a health and safety representative, while employers with 20 or more employees are required to have a JHSC. At least half the members must be workers employed at the workplace who do not exercise managerial functions.