Chapter 2 - Individual and Collective Rights PDF

lOMoARcPSD|2779689 Unions Mana 479 Chapter 2 - Individual and Collective Rights The Freedom of association (FOA) is protected by S.2 (d) of the Canadian Charter, and S.3 of the Quebec Charter. Certified Union Rights § Right to strike. § Obligation to represent members. § Obligation to negotiate in...

lOMoARcPSD|2779689 Unions Mana 479 Chapter 2 - Individual and Collective Rights The Freedom of association (FOA) is protected by S.2 (d) of the Canadian Charter, and S.3 of the Quebec Charter. Certified Union Rights § Right to strike. § Obligation to represent members. § Obligation to negotiate in good faith. § Monopoly to negotiate w/ the employer. (Wagner model) Individual Rights § Right to associate. § Right to pursue common constitutional rights. § Right to join others to face groups of more equal terms (power/strength). Collective Employee Rights § § § Right to form a union. Right to present their demands collectively to their employer. Right to participate in discussions toward attaining workplace objectives. *The right to associate is meaningless w/o the right to bargain collectively. Collective Bargaining Rights § There is a procedural right to collectively bargain. ↳ the process is constitutionally protected. § Duty to bargain in good faith. § Employer must consider the representations (unions) in good faith, and engage in a process of meaningful consideration and discussion. Individual Right of Association (CQLR C-27) Art. 3 Every employee has the right to belong to the association of their choosing, and to participate in the formation, activities, and management of that association. The exclusivity granted to unions (Wagner model) imposes an obligation to accept all employees as members, unless if it threatens the cohesion or existence of the union. Employees cannot be forced to join a union as condition of employment or as a condition of receiving protection from the union. § Employees can be forced to pay union dues even if they are not members of the union. § Construction workers must be members of a union for the purpose of certifying/controlling qualifications. Infringement of FOA Prohibitions under Art. 425 (a) of the Criminal Code § Dismissing, or refusing to employ someone for union membership/activities. § Intimidating or threatening sanctions against a person for union membership/activities. § Conspiring w/ another employer or his agent, to do anything mentioned above. Prohibitions under CQLR C-27 No person shall use intimidation or threats to induce anyone to become, refrain from becoming, Art. 13 or cease to be a member of a union § Includes threats to close the business. § Includes changes to working conditions as a reprisal in the event of unionization. 5 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Art. 14 An employer cannot refuse to hire, dismiss, or impose sanctions on an employee or group of employees to prevent the exercise of union activities. The Tribunal may dissolve an association if its proven that they participated in prohibited practices. Exceptions 1. An employer can correct facts or propaganda issued by the union. 2. An employer can exercise their freedom of expression and let their opinions be known. § There can be no threats or promises § Employees cannot be forced to hear the employer’s opinions § Messages cannot be false or misleading § Employer cannot attack the union or its credibility 3. A business can close out of its own choosing if employees want to unionise. § Business must close permanently. Individual Civil Recourses (CQLR C-27) Employees who have been sanctioned for union activity or for exercising a right under the QLC can claim reinstatement as well as compensation for lost salary (w/interest). Complaints related to art. 12, 13, and 14 must be filed w/ the alt within 30 days. For the alt to presume that the sanction was imposed on the employee for exercising a legal right, the employee must first prove: 1. He is an employee of the employer who imposed the sanction 2. He was subject to a sanction 3. The sanction was contemporaneous w/ union activities 4. He was exercising a legal right under the QLC Art. 17 If the above is proved to the satisfaction of the Tribunal, the onus is on the employer to prove that the sanction/action against the employee was for a good and sufficient cause, or was a result of economic reasons. If the employee committed a contemporaneous fault, the employer must demonstrate that the fault was the true reason for the sanction, and the sanction was not over exaggerated. Individual civil recourse (art. 15 - 19) does not erase the employee’s right to file a grievance (arbitration). 1. Alt civil recourse takes priority 2. Alt may conclude that the sanction was not union related 3. Case can then proceed to arbitration to examine the appropriateness of the disciplinary sanction in light of the fault. 6 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions CQLR C-27 Art. 15 Mana 479 Remedies 1) Employee can be reinstated. 2) Employer can be ordered to pay retroactive salary and benefits from the time of the sanction until the date of the employee’s reinstatement. 3) Any other reprisal can be ordered cancelled. 4) Any financial consequences can be ordered remedied. 5) Interest and additional indemnity. *Employee is obligated to mitigate his damages. *Judgement takes effect within 8 days of the alt’s ruling. *$500/day penalty for failing to reinstate the employee when ordered. Collective Protections (CQLR C-27) Unions must be financed, formed, organized, and managed w/o interference or participation of the employer; violations can lead to penal sanction, even if management’s actions are positive. Art.12 No employer or agent of an employer shall interfere w/ any association of employees, including: § Using collaborating employees to vote against the formation of the union. § Allowing anti-union petitions to be signed on premises and during work hours. § Using aggressive tactics to discourage employees from unionizing. § Bypassing the union to directly negotiate w/ employees. § Influencing the selection of union representatives. § Providing financial support to the union. § Providing materials and equipment to the union. § Releasing employees from work hours w/o penalty to recruit membership. A union that has allowed itself to be interfered w/ by the employer (dominated union) loses its right to accreditation and if accredited, can be dissolved. Dominated unions are typically: § Quickly and easily organized and accredited. § Supported by the employer w/ the intent of thwarting the organization of a more independent and powerful union. Guilt of the above prohibitions require proof of intent to interfere (beyond a reasonable doubt) regardless of whether the interference was successful or not. § Actions considered unreasonably careless can lead to civil sanctions even in the absence of intent. § The situation of a dominated union can be raised by the alt w/o a complaint by employees. Penal Resources for Infringement Fines ranging from $100 - $1000 per day of infraction. § Can apply to directors, officers, representatives, and council. § Includes actions done by a dominated union, the employer, an association of employers, representatives of the employer and/or anyone else who conspires w/ the employer. 7 Downloaded by Savannah Amber ([email protected])