7.1.3 Labour Law and the Failure of Unions

Discussion

The Commission heard evidence that thousands of unionized employees across the country lost their jobs or were put on unpaid leave as a result of the vaccine mandates. Union members had an even harder time fighting this than non-unionized employees, because under the law they cannot bring direct actions against their employer in court and instead must rely on their union to fight for them.

Unionized employees are largely shut out of the courts and must seek recourse for workplace wrongs through their union, which is the gatekeeper of the grievance process. But what is a person to do when the union itself fails to take up his or her defence—or worse, acts against the employee to enforce compliance with the problematic mandates?

Under the law, union members do not have the right to sue their employer directly. This is because union members are part of a collective agreement, under which they contract out their rights to the union. In turn, the union is obligated to represent the employee against his or her employer. Thus, unionized employees depend solely on their union to fight for their employment rights.

The Commission heard that many unions failed to advocate for their members in defence of the vaccine mandates. Some unions told employees that they must comply with the mandate if they were unable to qualify for an exemption. The Commission heard that one union refused to fight for its member because it had received a legal opinion supporting the employer‘s right to impose a mandate.

Some employees attempted to bring human rights complaints without the assistance of their union. These applications were denied on the basis that the court had no jurisdiction. This left employees at the mercy of unions that were uninterested in defending them.

The Commission heard evidence that a group of employees in British Columbia had filed a claim against unions for failure to represent them against their employers. The employees had a difficult time finding a lawyer who would represent them, and the time and expense related to this type of suit is extensive.

The result is that a large number of Canadian unionized employees had no ability to have a court adjudicate on the applicability of mandates nor to consider the safety of the vaccines being imposed.

Recommendations

Based on the testimony concerning labour law and the challenges faced by union members during the pandemic, these recommendations were formulated to address these issues:

1. Legislation to Protect Union Members: The Commission recommends that legislation be adopted to include ensuring the protection of union members where the member asserts

• that Charter rights have been violated as a result of actions of the employer or the union, and

• a grievance against his or her employer that the union fails to, or refuses to, defend.

1. Review and Strengthen Labour Laws: The government should review labour laws to ensure that they provide adequate protection to both unionized and non-unionized employees during health emergencies like the pandemic. This should include mechanisms for addressing workplace issues related to mandates and safety concerns.

2. Enhance Union Accountability: Labour laws should be amended to hold unions more accountable for representing their members effectively. This could involve regular assessments of a union‘s performance in advocating for its members‘ rights during crises. Unions should be required to demonstrate that they are acting in the best interests of all of their members.

3. Ensure Union Transparency: Unions should be transparent about their decision-making processes and actions during crises. Members have a right to know how their union is advocating for them. Transparency can help build trust between members and their unions.

4. Access to Legal Recourse: Labour laws should be revised to allow union members to have access to legal recourse in cases where their union fails to adequately represent their interests. This could include the ability to bring direct actions against employers under certain circumstances, such as when the union refuses to take up their case.

5. Legal Aid for Union Members: Governments should consider providing legal aid or support to union members who need to take legal action against their union or employer. This would help level the playing field for employees who find themselves in such situations.

6. Mediation and Dispute Resolution: Establish mediation or dispute resolution mechanisms specifically tailored to labour disputes arising from health emergencies. This can provide a more efficient and cost-effective way to address employer–employee issues than lengthy court battles. Reasons for decisions must be made public.

7. Educate Union Members: Unions should play a proactive role in educating their members about their rights and the grievance process. Well-informed members are better equipped to hold their unions accountable and make informed decisions during crises.

8. Encourage Collaboration: Governments, unions, and employers should work together to develop clear guidelines and protocols for dealing with workplace issues during health emergencies. Collaboration can help prevent conflicts and ensure the best interests of workers are protected.

9. Whistleblower Protections: Strengthen protections for whistleblowers within unions and workplaces. This can encourage employees to come forward with concerns without fear of retaliation.

10. Public Inquiry: Consider launching a public inquiry into the specific challenges faced by unionized employees during the pandemic. This can help identify systemic issues and inform policy changes.

These recommendations aim to address the shortcomings in labour laws and union representation highlighted during the pandemic. They seek to strike a balance between protecting individual employee rights and maintaining the integrity of collective bargaining agreements.