Written on behalf of Peter McSherry
There are two types of employment in the Canadian employment landscape: employment at common law, and employment pursuant to union membership. Membership in a union is accompanied by many privileges, including the fact that the union collectively bargains on the behalf of all employees in order to obtain just and fair treatment of all employees. This is where disputes regarding non-union employees may occur.
Employers in unionized environments are subject to the application of the collective agreement negotiated between themselves and the union. This means that employers are not permitted to engage non-unionized workers to complete duties within the purview of unionized employees in an attempt to avoid the constraints imposed by the collective agreement. How far this obligation extends and its scope and application are the subject of this blog.
Employer Hires Nonunionized Subcontractors to Execute Union Duties
The case of Labourers’ International Union of North America, Local 527 v Expercom Telecommunication Inc. involved a grievance by the union that the employer had, at multiple locations in the Ottawa Region, engaged the services of non-unionized subcontractors to perform work that was within the jurisdiction of the union, and had thereby violated the collective agreement.
The employer is a construction company that operates throughout Ontario. The employer’s work largely consists of repair and upgrading of telecommunications infrastructure contained in the residential sector of the province’s telecommunications industry. The work undertaken on behalf of the employer may be divided into two categories: service or repair of existing telecommunications infrastructure; and installation of new telecommunications infrastructure.
Union Involving Construction Labourers in Ottawa
The union that represents the employees of the employer was described by the Labour Board in a 2012 decision to include all construction labourers in the Ottawa region, in all sectors of the construction industry other than industrial, commercial and institutional, other than forepersons and those persons whose rank exceeds that of foreperson.
Given the Labour Board’s previous decision, the employer was bound to the terms of the union’s collective agreement, which dictated that the employer was not permitted to engage the services of any non-unionized worker to execute duties that fall within the purview of work typically undertaken by the union.
Union Grieves Employer’s Hiring of Nonunionized Subcontractors
The union asserted that the employer had violated the collective agreement. The union argued that the employer had hired non-unionized subcontractors on multiple occasions to carry out unionized work in the Ottawa region. The employer countered they had been forced to hire non-unionized workers because their multiple requests to the union to supply unionized workers had been ignored or insufficiently addressed. The employer argued it had no choice but to engage the services of non-unionized workers to ensure that all projects in its pipeline could be completed in a timely manner and in satisfaction of contractual obligations the employer had undertaken.
Determination of Violation of Collective Agreement by Labour Board
Resolution of any unionized dispute, including a grievance by a union, must commence with a review of the applicable collective agreement. In this case, the labour board was directed by the union to consider articles 2 and 4 thereof, both of which mandate that the employer hire only members of the union to perform work within the union’s jurisdiction.
Labour Board Prohibited From Considering Several Factors
In considering whether a breach of a collective agreement prohibiting the hiring of non-unionized employees has occurred, the Labour Board is expressly prohibited from considering the following factors:
- Whether the violation of the collective agreement is attributable to negligence, mistake, inadvertence, deliberation, or good faith.
- The board is not vested with the authority to weigh the competing contractual obligations of a company between the deference owed to the collective agreement and that owed to any subcontract.
- Failure by the employer to negotiate any exception to the obligation to hire only unionized subcontractors and whether it causes the employer hardship or inequity if they are unable to hire non-unionized workers.
- How the employer decides whom to hire and what work they should perform.
If the Labour Board determines that the employer has breached the collective agreement, then it is up to the Board to award damages to the union in order to compensate for the breach. In doing so, the Labour Board may consider the value of the wages lost in assessing the appropriate amount of damages to award. However, the guiding principle in assessing damages demands that such damages be compensatory rather than punitive, such that the Board generally seeks to value damages suffered by the union as best as it can and then assign damages accordingly.
Labour Board Finds Collective Agreement Breached, Orders Employer to Pay Damages to Union
A review of the circumstances and the evidence revealed the employer had, on seven separate occasions, engaged the services of non-unionized employees to complete work usually carried out by and within the purview of the union in accordance with the terms of the collective agreement. Therefore, the Labour Board had little difficulty in easily concluding that the employer had breached the collective agreement in this case.
A review of the collective agreement revealed that it provided no exception to the exclusion of non-unionized workers in the workplace such that the employer in this case was not permitted, in any circumstances, to ever hire a non-unionized worker to execute the duties of a unionized worker. The Board noted that the employer’s assertion that it had no choice but to hire non-unionized workers in order to satisfy its contractual obligations to third parties was immaterial.
In these circumstances, the Labour Board allowed the grievance. The Board issued a declaration to the effect that the employer had breached the collective agreement and ordered the employer to compensate the union for all hours worked by any non-unionized employee.
Contact the Law Office of Peter McSherry to Discuss Your Employment Law Needs
If you are facing a dispute in your employment, whether it relates to unionized employment, employment insurance benefits, human rights and disability in the workplace, wrongful termination, constructive dismissal or some other employment-related issue, then you are in need of experienced counsel to help guide your next steps and strategize a satisfactory resolution to your claim.
Fortunately, the Law Office of Peter McSherry is here to help. From our offices in downtown Guelph, Ontario, the Law Office of Peter McSherry is proud to provide thoughtful, knowledgeable legal services to employees and employers throughout Southwestern Ontario. Contact us online or via telephone at (519) 821-5465, and one of our friendly, professional staff will be pleased to schedule a confidential consultation to assess your needs and commence your journey to resolution of your legal issue.