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Labour (Ont) - Unfair Labour Practices. The Society of United Professionals v. New Horizon System Solutions
In The Society of United Professionals v. New Horizon System Solutions (Ont CA, 2020) the Divisional Court stated the leading doctrine on interference with a union's representation of employees in the bargaining unit [s.70 of the Ontario Labour Relations Act]:[24] Section 70 of the Act provides:No employer or employers’ organization and no person acting on behalf of an employer or an employers’ organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence. (emphasis added) [25] Both parties had agreed at the hearing before the Board that the leading cases on the interpretation and application of s. 70 are Hotel & Restaurant Employee CAW Local 448 v. The Millcroft Inn Ltd., 2000 CanLII 12208 (Ont. L.R.B.) and Bernard v. Canada (Attorney General), 2014 SCC 13. In both these cases, the issue was whether s. 70 or a similar provision requires that a trade union be provided with contact information, such as home addresses and phone numbers, for the members of the bargaining unit it represents.
[26] In Millcroft, the Board set out the test for applying s. 70 (at para. 16):A violation of section 70 of the Act does not require an anti-union animus. If the result of certain conduct is interference in the union’s capacity to represent its members, that can be sufficient to constitute a breach of the provision. The conduct may be lawful and bona fide; it may be free of any anti-union taint, yet if its effect is to harm the union’s capacity to represent its members, it may be a violation. It will be a violation if there is no business rationale for the interference. In Bernard, the Supreme Court of Canada quoted the Millcroft decision with approval. In each of these cases, it was held that access to the employee contact information was necessary for the union to carry out its representative obligations. . Enercare Home & Commercial Services v. UNIFOR, Local 975
In Enercare Home & Commercial Services v. UNIFOR, Local 975 (Div Ct, 2021) the Divisional Court considers contracting out in the context of the Labour Relations Act:[43] This discussion must be placed in the broader context of the law’s response to conflict respecting contracting out by an employer. These conflicts arise often. They are usually addressed as grievances under a collective agreement or as alleged “unfair labour practices” under s.72(a) of the LRA.[35]
[44] Subsection 72(a) of the LRA provides:No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act. [45] A leading case on this issue is Westinghouse, where the Board found: “[i]t is well established in this jurisdiction that absent an express restriction in the collective agreement an employer is not restricted in contracting out or relocating work for genuine business reasons.”[36] Nevertheless, the Board noted that an employer cannot contract out work “to avoid having to deal with his employees collectively through a trade union or to avoid the possibility, in the abstract, of being subject to economic sanctions”.[37] To do so would be an unfair labour practice.
[46] In Kennedy Lodge, the Board followed Westinghouse, finding that generally employers may contract out absent an express contrary provision in the collective agreement.[38] The Board examined the “true or real motive” of the employer in contracting out for evidence of “anti-union motivation.”[39] The Board found that contracting out all of a “core function”, with the result that unionized employees were terminated, was a basis to infer improper intent.[40]
[47] In Sunnycrest Nursing Homes, the Board found that the employer subcontracted work and discharged employees to avoid collective bargaining, subvert the bargaining process and defeat the statutory rights of terminated employees.[41] The Board followed this analysis in Rapid Transformers Ltd.:The Board has consistently indicated that while an employer is free to expand or contract its business, to contract out its work, or to change methods of production, it may only do so if it is motivated by genuine and legitimate business considerations, rather than a desire to defeat or impede employees in the exercise of their statutory rights.[42] [48] I appreciate that the case law reveals “a blurred distinction in principle between an employer’s motivation based on economic considerations and motivation showing an anti-union animus.”[43] It is neither necessary nor useful to try to reconcile this tension in this decision. In any event, motive is a key inquiry in these cases, and this is determined by examining the impact of the contracting out on the employer, collective bargaining rights, and the history of the issue between the parties. What is crystal-clear from the cases is that a careful analysis of the context of the contracting out is essential to the analysis, to assess the effect of the contracting out on bargaining rights and to determine the employer’s motives in contracting out.
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