Most Canadians are aware of the potential for the complete legalization of the marijuana industry. Medical marijuana is already trading as a commodity in Canadian provinces. It is a significant growth industry with the potential for continuing profits and productivity. With the development of this particular industry comes the development of employment related opportunities and conflicts.
A recent case involving an application for certification by the United Food and Commercial Workers (UFCW) union for employees of MedReleaf provides us with an example of the complexities involved in determining whether or not a workforce can unionize in the context of a particular industry. MedReleaf is a licensed medical marijuana producer located in Ontario.
Click here to read a summary of case facts.
As noted in this summary, the UFCW filed for an application to certify the workers of MedReleaf under both federal and provincial jurisdictions. MedReleaf, as the employer, responded to this application by stating that it is part of the agricultural service industry and, therefore, outside of the jurisdiction of both the Labour Relations Act and federal labour legislation. Despite this argument, the Ontario Labour Relations Board (OLRB) ordered a vote by the employees of MedReleaf to determine whether or not they (the employees) wanted to certify and have a union represent their interests.
The employees did not vote yes. They voted against having UFCW as their union and against certification. As a result, the UFCW filed for ‘remedial certification’ citing unfair labour practices. If the union was successful proving that unfair labour practices did indeed take place during the employee certification process, the employees of MedReleaf would automatically become unionized, even though they did not vote for union certification. According to the facts of this case, the second application was dismissed based on the OLRB determining it could not make a decision because the matters were outside its jurisdiction. It seems to be confirmed, as a result, that the employees of MedReleaf are subject to the Agricultural Employees Protection Act, 2002 (AEPA) and, as agricultural workers, would not be able to form or join a union.
This case raises very interesting and complex questions. Why was the employee vote not considered satisfactory from the perspective of the UFCW? The allegation of an unfair labour practice during a certification drive is very serious. If it is found to be true, the employees will be certified by the OLRB, even if the majority of the employees voted against joining a union.
On the other hand, why would the OLRB order a vote in the first place and then, much later, determine that neither the provincial Labour Relations Act (which governs the OLRB) nor the federal jurisdiction applies in this case? Without more detail and information from each of the parties involved in this dispute, it seems that these questions will remain unanswered.
What this situation does provide is an insight into the perseverance of both the employer and the union in determining the rightness of their particular positions. The issues may be related to workplace rights and representation. There is no doubt, however, that the issues are also linked to the profitability of this particular product.
After all, the stakes are high for everyone.
Discussion Questions:
- On what grounds do you think the Ontario Labour Board based its decision when considering the Agricultural Employees Protection Act,2002 (AEPA)?
- Why do you think the United Food and Commercial Workers union filed a federal and provincial application simultaneously?
- Why do you think the OLRB ordered a vote for MedReleaf employees in this case?
- If you were representing the union in this case, on what grounds would you file an appeal?