Jurisdiction

Yes to Unionization

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The process of unionization can be either complex and confusing, or simple and straightforward. It all depends on one’s point of view. A case in point is the recent announcement that paramedic workers employed by the Beausoleil First Nations voted to join the Ontario Public Service Employees Union (OPSEU).

Click here to read the OPSEU announcement.

Click here to read the news report.

Both the announcement and the news report appear to provide the same message: OPSEU representatives met with paramedic workers. The workers were asked if they wanted to join OPSEU. The workers voted yes. The process was complete.

Is it truly that simple? No, not really.

Not identified clearly in these messages are the complexities involved with determining the jurisdictional, classification, and membership issues. On the matters of jurisdiction, the news report mentions that the employer (Beausoleil First Nations) filed an objection based on the Canada Labour Code, which would apply if the workers were deemed to be federal employees. This was not successful as the workers were certified as a union by the Ontario Labour Relations Board and thus they fall under provincial legislation.

The membership and classification issues will need to be clarified to determine which positions are now included in this particular unit and which positions are excluded, based on the provisions of Ontario’s Labour Relations Act. There is a lot of work ahead for both the employer and the union as they begin to identify and establish their respective roles in preparation for bargaining a first collective agreement.

In the meantime, there are two important messages that do seem clear and straightforward. First, the paramedic workers wanted the legal protection of a union to negotiate better wages. Second, there is no evidence that the employer has acted ‘badly’ since the unionization took place. With a focus on improved wages and maintaining positive relations between the parties, hopefully these messages will continue to steer the path to constructive labour-relations progress for everyone involved.

Discussion Questions:

  1. Identify the steps and processes that are required for workers to become certified in Ontario.
  2. Besides jurisdiction, what are the distinct differences between the Canada Labour Code and Ontario’s Labour Relations Act?
  3. In your opinion, why is there a presumption that an employer will react badly once employees become certified as members of a bargaining unit?
  4. Besides the opportunity to negotiate for better wages, what other protections could a union offer to paramedic workers in this case?

When does no mean no?

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Marijuana and a gavel together for many legal concepts on the drug.
Matt Benoit/Shutterstock

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:

  1. On what grounds do you think the Ontario Labour Board based its decision when considering the Agricultural Employees Protection Act,2002 (AEPA)?
  2. Why do you think the United Food and Commercial Workers union filed a federal and provincial application simultaneously?
  3. Why do you think the OLRB ordered a vote for MedReleaf employees in this case?
  4. If you were representing the union in this case, on what grounds would you file an appeal?