A worker’s right to form or organize a union is fundamental – most employees have the right to become a member of a union, create their own union or decertify (become free from a union). However, some employees in Ontario are statutorily exempt from being part of a bargaining unit in a union. Under Ontario’s Labour Relations Act, 1995 (“Act”), employees who are not allowed to be part of a union include those who are members of the architecture, dental, land surveying, legal or medical professions or those who, in the opinion of the labour relations board, exercise managerial functions or are employed in a confidential capacity. The purpose of this blog is to summarize how the law determines when an employee ought to be excluded from forming part of a bargaining unit in a union on the basis that they exercise “managerial functions.”
Employees exercising a “managerial function”
In determining whether an employee exercises “managerial functions” the law will look at the substance of the parties’ relationship. Specifically, the following inquiry will have to be made:
- Did the employee have the power to hire or fire, or to make effective recommendations in that regard?
- Did the employee have the power to discipline, or make effective recommendations in that regard?
- Did the employee have the power to grant or effectively recommend wage increases, promotions and other similar matters?
- Did the employee have the power to enforce the rules and regulations of the organization?
- Whether the employee participated on behalf of management in the grievance procedure?
- Did the employee have the power to grant or effectively recommend time off or assign overtime?
- Whether the employee had effective control over the performance of the employee’s subordinates’ work and over the efficiency of the service provided by the employee’s subordinates?
- Did the employee have the authority to make effective recommendations with respect to the way the employee’s subordinates’ work is performed?
- Whether the company had training initiatives directed at the employee to involve them as part of the management team. For example, training in such areas as labour relations, employment equity, affirmative action and safety rule enforcement, health and safety committees, etc.;
- What was the employee’s role in performance evaluations?
- Whether the employee enjoyed any of the “trappings of management” which distinguish supervisors such as the employee from other employees (e.g. was the employee closely associated with the owners, did the employee attend social events with the owners, did the employee get special bonuses, enjoyed profit sharing arrangements, etc.).
- Whether the employee had the right of access to employee information with which the employee was able to track other employees’ behaviour.
If most of the above questions are answered in the affirmative, then the employee will be deemed to be exercising “managerial functions” and would, as such, be exempt from becoming part of a bargaining unit under the Act.
In our experience there are instances in which employees have commenced their job as regular labourers but rose to assume executive positions within the organization all whilst continuing to pay their union dues throughout their entire service with the employer. This creates an awkward reality where such employees are treated as “part of the union” in contravention of the legislative intent under the Act.
In some contexts, the analysis becomes highly nuanced. For instance, in the construction industry, the law places a distinction between a “working foreman” and a “non-working foreman” with the latter being excluded from the Act. Moreover, sometimes even a working foreman will be subject to the rule of managerial exclusion. This happens when the working foreman carries an overall responsibility for a project or can and does affect the status of other employees.
Ultimately, the purpose of the law is to remedy a conflict of interest or the potential of divided loyalties of managers who exercise managerial responsibilities when determining the appropriateness of their inclusion in a bargaining unit. Given the adversarial nature of collective bargaining a person whose primary loyalty lies with the employer will typically be regarded to be “on the side of the employer.”
How Zeilikman Law Can Help
The employment lawyers at Zeilikman Law can help employees and employers determine the substance of their role and whether they ought to be confined to the four corners of the collective agreement.
In addition to offering employers legal advice and representation in dealing with unions and union matters, we also offer representation to employees dealing with union-related concerns. You can read more about this topic in our blog Self-Advocacy for Unionized Employees in Ontario to better understand your options as an individual in a unionized work environment.
If you are an employee or an employer who has questions with respect to the above, do not hesitate to contact Zeilikman Law. You can contact us at (905) 417-2227 or online here to schedule a confidential consultation.
