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Howard Levitt: The Aftermath of the Pandemic Has Been Bad News for Unionised Employees

posted 2 years ago

I have spent most of these columns discussing the plight (or otherwise) of non-unionised employees.

But woe has befallen unionised ones in the aftermath of the pandemic.

Let me illustrate that by a fairly recent case of mine. I negotiated a collective agreement on behalf of a client. The result was a ten-year agreement with Canada’s largest union, one not known for rolling over. But it was not merely the fact of the ten years but that the agreement provided for a 30% wage cut on existing rates in the agreement for any new employees and the grandfathering of existing employees at their current wages for those ten years (i.e. a wage freeze).

The reason why the union had to accept this is because they had overpromised and, when employees realised that they were already earning more than the wages at competitors and that their employer was not buckling at the table, even one of the initial inside employee organisers began talking of decertification. And if there is one thing unions are good at, it is self-preservation.

Imagine that: in today’s climate, being stuck with the same wages, guaranteed, for the next decade.

Although few employers manage to get collective agreements of that length, three-year agreements are de rigueur and most agreements have wage increases of between 2–3% a year.

Compare that to the non-union sector, where employers in most industries are raiding others for employees, offering them significant wage increases to move over. And employers, with the current labour shortage, are paying more than ever to retain existing employees. The job market is hotter, much hotter, than I have experienced in my decades of employment law practice.

So, if you are a unionised employee seeing your non-union colleagues wooed by competitors with large increases and also receiving big raises just to stay in place, how does your paltry 2% a year for the next three years look? Especially when there is no opportunity to individually bargain for more, regardless of how worthy you may be or what your outside market power has become.

I would not want to be a union organiser in these times (Note to my clients: nor at any other time).

And if I were a unionised employee, I would be thinking hard of how to rid oneself of the union and seeking advice on the decertification process.

And union leaders are feeling the heat. Unifor’s Jerry Dias recently announced his retirement for health reasons amidst allegations from his union that he had received $50,000 from a supplier. I have had my own run-ins with Unifor over the years, including a very recent case in which I successfully obtained an injunction against them for blockading my client’s premises, after which Dias referred to me as “the most (insulting term) lawyer in Canada” when addressing his members and explaining their loss. Although hardly a compliment, I viewed Canada’s top union boss attacking me as flattering in the circumstances. Dias went on to exhort his members into a chant insulting the judge who made the order. I can only imagine what Unifor’s membership thinks of the current allegations.

I do a weekly radio show in Windsor with many unionised callers. I am consistently the bearer of bad news. No right to sue for wrongful dismissal. No such thing in the union world as constructive dismissal. No recourse for a layoff, which for a non-union employee is a constructive dismissal entitling the employee to wrongful dismissal damages. Even if they have a good case and the union refuses to take it, as many complain of, there is no effective legal recourse. And no, even if the union will not take the case, a unionised employee cant take it on their own or go to a lawyer. When a prominent western Canadian professor was fired from his university and the union refused to grieve the discharge to arbitration, I agreed to take the arbitration case for him. The union refused to let him/me do so as it, not the employee, is the exclusive representative and can decide whether the grievance will go to arbitration or not.

BY HOWARD LEVITT

Howard Levitt is Senior Partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practises employment law in eight provinces. He is the author of six books, including the Law of Dismissal in Canada.

THIS ARTICLE ORIGINALLY APPEARED HERE: https://financialpost.com/fp-work/howard-levitt-the-aftermath-of-the-pandemic-has-been-bad-news-for-unionized-employees

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