Unions Have No Automatic Right to Participate in the Accommodation Process of Union Members
Previously printed in the LexisNexis Labour Notes Newsletter.
The B.C. Supreme Court has clarified in a judicial review decision that a union does not have an automatic right to participate in and be provided with information related to the process of accommodating a worker due to a protected ground: Telus Communications Inc. v. Telecommunications Workers’ Union, 2015 BCSC 1570.
In the decision under review, the arbitrator had determined that a union’s exclusive bargaining agency provided it with the right to represent employees with respect to any terms of conditions of employment, including accommodation requests. The arbitrator had considered bargaining evidence whereby the union had repeatedly attempted to have greater involvement in the accommodation process included in the collective agreement, but those proposals had been rejected by the employer. When addressing this evidence, the arbitrator found that there was no “mutual intention between the parties to the effect that the parties have essentially agreed [that] the [u]nion is not entitled to the right of notice, information and consultation that it seeks in the present grievance”.
In making his finding, the arbitrator emphasized that employees can often be in vulnerable situations and said:
Issues involving the accommodation of employees directly relate to a union’s authority to represent its members, and its support amongst employees in the bargaining unit is fundamentally affected by those employees’ perception of the union’s ability to represent [them] in relation to significant matters grounded in the collective agreement. Cutting the union out of the accommodation process, grounded in the discrimination provision of the collective agreement, conflicts with the union’s role as exclusive bargaining agent under the agreement and the Canada Labour Code.
The employer sought judicial review of this decision stating that a union may participate in an accommodation in certain cases, but that those were limited. If an accommodation fell outside of that limited class, the accommodation process fell within management’s reserved rights or, alternatively, in the instant case was assigned to the employer through the operation of the collective agreement.
The Court applied the reasonableness standard in examining the decision. It rejected the expansive nature of the union’s bargaining agency and said in particular:
Telus generally has the right to direct employees as it considers advisable. The inclusion of “reasonable accommodation” among the matters within the purview of management is not manifestly inappropriate or contrary to [the union’s] right to act as the sole collective bargaining agency …
The case law rather firmly supports Telus’ view that “reasonable accommodation” does not fall within the “negotiating” or “bargaining” mandate of the [union] except in the circumstances outlined in the case law. The exceptions are well established: where there has been union participation in a discriminatory policy or rule; where the union’s agreement is necessary to facilitate the accommodation, and no alternative can be found; or where an employee requests the involvement of the union.
The judge did expressly note, however, that the union may be granted participatory rights in the bargaining process. If such a right is granted, then so will the requirement to provide the union with all relevant information regarding the accommodation request.
This case is important because there is now a bright line in the general law regarding when a union must be included in the accommodation process. As the Supreme Court of Canada has stated, a union is required to assist in an appropriate accommodation and now the circumstances where that involvement must occur have been clarified. A union need only be involved where: (1) the union has participated in creating a discriminatory policy or rule; (2) the union’s agreement is necessary to facilitate accommodation and no alternative can be found; and (3) an employee requests union involvement.