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New Work Law Comic: The Collective Raise Demand Doesn’t Go Well

In this new Work Law comic, my employee come together and demand a raise.  Check it out, then consider the discussion below.

Discussion

In the recent decision, Ontario v. Fraser, the Supreme Court of Canada said that Section 2(d) ['freedom of association] of the Canadian Charter of Rights and Freedoms guarantees workers the right to come together as a group and make collective representations to their employers about working conditions, without reprisal. Moreover, the employer is required to listen to the representations and engage in meaningful dialogue with the employees, or their representative, about the representations.

However, under our dominant labour relations model in Canada (exemplified by the Ontario Labour Relations Act) workers are only protected from reprisals for making collective representations if they do so through or with the involvement of a ‘trade union’. In addition, there is only an obligation on employers to listen to the representations and engage in meaningful dialogue if the workers are represented by a trade union that has been certified by the government after proving a majority of the employees want union representation. Nearly 85 percent of Canadians in the private sector are unrepresented by a union, with the result that only a small percentage of private sector employers in Canada have any legal obligation to listen to, let alone discuss employee concerns such as those raised in the comic.

With this in mind, we can ask whether my avatar has violated any law by ignoring my employees’ request for a raise, and by implying that they should just quit if they don’t like their pay. The answer is clearly no, isn’t it? Nothing in Canadian law requires an employer to engage in a dialogue about working conditions with its nonunion employees (except oddly in the agricultural sector, where the Ontario government does require this in the Agricultural Employees Protection Act). The result is that the rights and freedoms that the SCC says are guaranteed by the Charter are inaccessible to most Canadians. Does that strike you as odd?

Could I just fire all of the employees who asked me for a raise? Well, what do you think? Look at Section 72 of the Labour Relations Act, which is the section that protects employees from employer reprisals for associating in Ontario. Does this section apply to the situation in the comic? Why or why not?

Do you think the law should protect the right of workers to approach their employers as a collective to discuss working conditions?

These are some of the issues I explore in my new law journal article, which I mentioned in an earlier recent blog entry.

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2 Responses to New Work Law Comic: The Collective Raise Demand Doesn’t Go Well

  1. Dave Reply

    October 12, 2012 at 8:40 am

    As an HR professional I’ve often wondered where the line gets drawn for non-union employees and their freedom to associate. While I doubt the situation in the comic would amount to cause for dismissal, it would seem clear that non-union employees aren’t protected by the LRA because their is no ‘trade union’ involved. But I am confused by the definition of ‘trade union’ given in the LRA as:

    “an organization of employees formed for purposes that include the regulation of relations between employees and employers”

    It goes on to list the specific types of trade unions that are included in that definition, but doesn’t say ONLY those listed are included. You would think the general definition given off the top is the one the courts would apply, which would accommodate their Charter rights, but that doesn’t seem to be the case.

    • Doorey Reply

      October 12, 2012 at 11:19 am

      Thanks for the comment Dave. The OLRB has ruled in a long line of decisions that a ‘trade union’ is not any grouping of employees, but instead must be a formalized body, with rules, officials, members, and usually a written constitution of sorts. There is some flexiblity in the definition, but there needs to be a formal structure and agreement of employees to ‘join’ at least. In the comic scenario, none of this is present, so my own view is that the example is completely outside of the scope of the Labour Relations Act. The employees are governed by the common law and Employment Standards legislation. This means they are probably entitled to notice of some sort, but they would no viable legal claim to reinstatement if they were fired, as would employees who approach their employer collectively through the mechanism of a trade union.

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