Under section 52(1)(b) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, (“OLRA”) an employee may not be required to pay union dues. To attain an exemption from paying union dues, the employee must satisfy the Ontario Labour Relations Board (“OLRB”) that their religious conviction or belief objects to paying the dues. The OLRB will assess whether the religious conviction or belief is truly held and whether paying dues would interfere with the employee observing his or her faith. However, the equivalent amount must be paid by the employee to or remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union. If the employee and the employer cannot agree on an organization, the Board will designate one.
The decision of Allan v. International Brotherhood of Electrical Workers, Local 586, 2005 CanLII 21432 (ON LRB) discussed the scope and application of section 52 of the OLRA. It was also the first time the Board considered a religious exemption application in the construction context.
The applicant worked for Boldt Electrical Co. (1991) Ltd. (“Boldt”) since 1996 as a journeyman electrician. The applicant applied for a religious exemption from the obligation to join the union and from paying trade union dues. Boldt filed an intervention, however, they did not take part of the hearing. The union was certified in 2004.
The applicant argued that membership with a trade union and paying membership dues would violate his religious faith. The applicant was a devout member of the Brethren, whose followers believe that a fellowship in the Lord Jesus Christ requires separation from all other associations, known as the principle of separation. Further, the Brethren faith obligates a follower to follow the principle of the master and bondman, meaning the applicant owed a duty to his employer. As such, the applicant argued that involvement with a trade union would interfere with the direct relationship between him and his employer.
The Board was required to address the following issues:
- was the applicant a religious objector?
- what is the scope of s. 52 as it related to collective agreement?
DECISION OF THE ONTARIO LABOUR BOARD
Issue One: Was the applicant a religious objector?
The Board first noted that to be granted the benefit of s. 52, “an applicant must show that continued membership and participation in their primary association (their religious affiliation) would be so damaged by trade union membership that the primary religious association could not be sustained” (para 14). As a result, there is a subjective and objective element to the Board granting a religious exemption. The Board determined that the applicant, with respect to the subjective element, held a genuine, consistent and conscientious belief. With respect to the objective element, the applicant must show that their religious belief would be put in jeopardy if the exemption were not granted. The Board assessed the principles of the Brethren, particularly the principle of separation. The Board determined that the applicant met the test for religious exemption. The Board was not satisfied by the union’s assertion that the applicant’s willingness to work under the union’s principle agreement rendered the application for exemption untenable.
Issue Two: What is the scope of s. 52?
The Board further discussed the scope of s. 52 and its notable features. The Board noted that “An application for religious exemption must be brought during the currency of a collective agreement first entered into, and only by an individual who was already an employee when the collective agreement was concluded” (para 20). Therefore, if a religious exemption is granted it only lasts for the duration of the first collective agreement and thereafter the religious exemption will no longer be available to an applicant regardless of their religious belief. This principle means that “[t]he individual is given a limited period of time to avoid an abrupt end to their employment and to arrange alternative employment within the time available before the expiry of the first collective agreement.” (para 21). As such, it gives an individual a reasonable opportunity to seek other employment.
Although section 52 of the OLRA provides for a religious exemption, it is not a permanent exemption. Further, in order for the Board to grant an exemption it must be satisfied that the applicant’s belief is sincerely held and is a religious one. As such, section 52 is not a means of circumventing paying union dues.