Shift to unionized workplace leaves no room for HR missteps, lawyer says
“Fundamentally, almost everything changes.”
So says John Hyde, employment lawyer at Hyde HR Law, in discussing the impact of unionization.
“It’s so important that HR, when moving into a unionized environment, catches up on all the minute details and requirements.”
That shift is now underway across Ontario’s public colleges. After 14 months of bargaining, the Ontario Public Sector Employees Union (OPSEU/SEFPO) met with employers on May 1 for the first day of conciliation, seeking new entitlements for part-time faculty.
Just weeks earlier, in April, more than 16,000 part-time and sessional instructors across 24 colleges formally joined the union—an effort OPSEU/SEFPO called one of the “largest union-organizing drives in Canadian history.”
So, what should HR anticipate with this kind of change? While it might seem like unions have more say in workplace matters, employers still have management rights, which they should “jealously guard,” says Hyde.
“The right to organize your workforce, the right to hire, fire, lay off, to make policies—these are all the things that management generally does in operating a business,” he says.
Employers can introduce new policies, however, there needs to be a test to determine if they are reasonable.
“That new policy has to be consistent with the collective agreement... and the only way to unilaterally do that is to make sure that the policies meet the test set out by arbitrators over the years and in cases,” he says.
Sometimes, new policies can also be applied with the trade union's approval, but employers shouldn't always take that route, Hyde says.
“You do not want to dilute your management rights."
HR is perhaps one of the most important functions in the unionized environment,” says Hyde, as HR is often the gatekeeper and a “line of protection” for employers.
It’s important to create a clear protocol where all potential disciplinary or sensitive employment actions go through HR first, he says. If there are any complaints or concerns, managers should listen first, collect any facts, and then bring those concerns to HR.
“Start with the premise that any disciplinary issue needs to go to HR first,” Hyde says.
But even the best HR protocols can fall short if they’re not aligned with one key document: the collective agreement.
“It’s really that document which governs the relationship overall, in accordance with jurisprudence from arbitrators,” he explains.
That’s why HR professionals must become familiar with the agreement and consult it before making any employment decisions.
Even if a clause appears ambiguous or lacks clarity, Hyde says HR needs to look at past decisions on how it should be applied.
He says other legislation, such as the Canada Labour Code and the Employment Standards Act ( ESA), still applies. However, unions often negotiate for stronger rights and protections through collective agreements.
Overlooking any clause in the agreement can result in grievances, Hyde says.
“HR needs to do everything right the first time, because there aren't second chances."
If a grievance is filed, it goes to an arbitrator for resolution. While a court case can take up to two years, an arbitrator’s decision is typically issued within six months.
“They happen much more frequently and far quicker than, say, the courts,” he explains.
One area where mistakes are especially costly is termination.
In a non-unionized workforce, employers can usually terminate employees by providing reasonable notice or a payment in lieu, says Hyde.
However, in a unionized environment, that standard no longer applies.
“You cannot terminate somebody unless there's just cause,” he says.
Instead, employers are required to impose progressive discipline over a period of time before terminating the employee.
Only under limited circumstances, such as organizational closures or certain layoffs, can unionized employees be let go without just cause, explains Hyde. However, even in those situations, he says, employers need to follow a seniority-based rule for layoffs, as employees who have worked longer at the company have more protection.
“[If] you get a termination wrong or a suspension wrong, the arbitrator has the right to put the person back to work and provide back pay,” he adds.
HR and employers must again consult the collective agreement when handling terminations.
Of course, most employers would prefer to avoid unionization — but if faced with the prospect, HR must tread carefully.
Under Ontario's LRA, employees have the protected right to join a union, and it’s illegal for any employer to try and influence employees not to join.
That means HR and management must stay neutral and avoid any conduct that could be interpreted as coercion or retaliation, says Hyde.
“Supervisors and managers—they are the mouth of the company, so to speak—and what they say can hurt you,” he explains. “So, [keep] tabs on what kind of communications are being undertaken”.
In the past, he has seen union organizers bait management into making comments and then recording them.
In an environment where union organizing is underway, the focus should be on conducting business as usual, Hyde says.
