{"id":135,"date":"2021-06-15T19:18:26","date_gmt":"2021-06-15T23:18:26","guid":{"rendered":"https:\/\/www.zeilikmanlaw.com\/?page_id=135"},"modified":"2023-03-08T17:17:40","modified_gmt":"2023-03-08T22:17:40","slug":"labour-employment-law-faq","status":"publish","type":"page","link":"https:\/\/www.zeilikmanlaw.com\/labour-employment-law-faq\/","title":{"rendered":"Labour & Employment Law FAQs"},"content":{"rendered":"\t\t
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\n\t\t\t\t\t\t\tBelow you will find frequently asked questions regarding Labour and Employment Law. Feel free to\u00a0contact Zeilikman Law<\/a>\u00a0with any additional questions or concerns you might have.\t\t\t\t\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/div>\n\t\t\t\t\t<\/div>\n\t\t<\/section>\n\t\t\t\t
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Labour Law FAQs<\/h2>\t\t<\/div>\n\t\t\t\t<\/div>\n\t\t\t\t
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\n\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tI am a unionized employee. Can I sue my employer for breaching my employment rights?<\/a>\n\t\t\t\t\t<\/h3>\n\n\t\t\t\t\t

Normally a unionized employee cannot sue their employers for breaching their employment rights because those rights are governed by the employees’ collective agreement. Therefore, a unionized employee can file a grievance against their employer according to the grievance process under their collective agreement. If the grievance process is unsuccessful at resolving the issue, the next step is arbitration.<\/p>

The union is the exclusive bargaining agent of its members, and therefore the union has carriage of the matter (i.e. grievance). The union has a duty to act in good faith and in a non-arbitrary fashion with respect to its union members. If a union has failed to act properly and\/or failed to fulfill its duty to the employee, the employee can bring a duty of fair representation application (normally referred to as a \u201cDFR Application\u201d) to the Ontario Labour Relations Board (\u201cOLRB\u201d). It should be noted that a successful DFR Application is rare and the test which the OLRB uses to determine if a DFR is justified is rigorous.<\/p>

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\n\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tMy workplace is unionized. Do I have to be part of the union?<\/a>\n\t\t\t\t\t<\/h3>\n\n\t\t\t\t\t

It depends. A unionized workplace can either be a \u201cclosed shop\u201d or \u201copen shop\u201d workplace. The designation of the unionized workplace will affect whether you are required to become a member of the union.<\/p>

If you are employed in a \u201cclosed shop\u201d workplace, you must be a union member to be hired and employed. In other words, the employment itself is conditioned on the employee\u2019s membership in the union.<\/p>

If you are employed in an \u201copen shop\u201d workplace, you do not have to become a member of the union. However, in an \u201copen shop\u201d workplace, employees who choose not to become members of the union are still subject to the collective agreement entered into by the union and the employer and are required to pay union dues. This situation is also known as the \u201cRand Formula,\u201d which makes it mandatory for all employees to pay union dues regardless of their status with the union (i.e. member or non-member). Further, a non-union employee in an \u201copen shop\u201d workplace is normally deprived of participating in internal union affairs.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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\n\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tI would like to start a union in my workplace. How do I do that?<\/a>\n\t\t\t\t\t<\/h3>\n\n\t\t\t\t\t

In Ontario, creating a union is different than being part of a bargaining unit. A bargaining unit is a group of workers usually with similar jobs, which have been certified by the Ontario Labour Relations Board (\u201cOLRB\u201d) or voluntarily recognized by the employer to have exclusive bargaining rights with the employer in negotiating a collective agreement. Creating a union does not automatically attain the bargaining unit status and rights of that status; rather, it requires the extra step of certification by the OLRB on application by the union or upon the employer\u2019s voluntary recognition.<\/p>

For most private-sector employees in Ontario starting a union and forming a certified bargaining unit where no union and bargaining unit already exist involves the following steps:<\/p>

  1. Create a union constitution and purpose including union positions and structure such as president, vice president, treasurer, etc.;<\/li>
  2. Appoint members to those positions;<\/li>
  3. If the created union wants to create the bargaining unit, the union will have to attain forty percent (40%) support of employees, which can be evidenced by petition or union cards, etc.;<\/li>
  4. Submit an application to the OLRB to certify the union as the bargaining unit;<\/li>
  5. The OLRB will hold a vote by secret ballot to see if employees want the union to be certified;<\/li>
  6. If the majority (50%+1) of employees who cast votes support unionization, the union is certified as the bargaining unit;<\/li>
  7. The OLRB will serve notice on the employer that a union has been created and certified to act as the bargaining agent for a specific bargaining unit; and<\/li>
  8. Subject to any objections from the employer, begin bargaining the first collective agreement with the employer.<\/li><\/ol><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t
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    \n\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tCan my employer prevent me from starting or joining a union?<\/a>\n\t\t\t\t\t<\/h3>\n\n\t\t\t\t\t

    No. An employer cannot prevent an employee from starting or joining a union. However, the employer has the right to voice their opinion with respect to a union, as long as they are objective in their opinion and it does not amount to undue influence, coercion or intimidation such as threatening an employee with job loss in relation to starting or joining a union.<\/p>

    If an employer does engage in conduct that intimidates, coerces or threatens an employee not to join or start a union, the employee may bring an unfair labour practice application (\u201cULP Application\u201d) against the employer. If a ULP Application is filed and the issue cannot be resolved between the employee and employer, a Report will be made and given by the Ontario Labour Relations Board (\u201cOLRB\u201d), which would assess whether the complaint was valid either by holding a Hearing or solely upon the Report. If the OLRB determines the Application to be valid, it may order a remedy against the employer. What recourse should be ordered against the employer depends on the specific circumstance and can range from compensation to revocation of a disciplinary action taken against an employee.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t

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    \n\t\t\t\t\t\t\t\t\t\t\t\t\n\t\t\t\t\t\t\t\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t<\/i><\/span>\n\t\t\t\t\t\t\t\t\t\t\t\t\t<\/span>\n\t\t\t\t\t\t\t\t\t\t\t\tCan my current union prevent me from switching unions?<\/a>\n\t\t\t\t\t<\/h3>\n\n\t\t\t\t\t

    No. Your current union cannot prevent you from switching to another union. Particularly, your union cannot coerce or intimidate you into staying a member of the union. However, depending on your union\u2019s constitution, you may face consequences such as a union ban, a fine, etc. for holding membership in two unions (commonly referred to as \u201cdual unionism\u201d). This is due to the fact that when you become a member of a union you undertake to follow and operate under the union\u2019s constitution. If you leave your union and you feel you are being treated contrary to the constitution, your former union\u2019s internal governing body will likely include a procedure for recourse or assessment of your complaint. If the internal governing procedures of your union do not adequately address your complaint you may lodge an Application with the Ontario Labour Relations Board (\u201cOLRB\u201d), however, the OLRB is normally unwilling to participate in affairs that are considered internal to the union.<\/p><\/div>\n\t\t\t\t<\/div>\n\t\t\t\t\t\t\t\t\t\t