Our Rights Under the Law

In our democratic society, we place a high value on rights and freedoms.  The Canadian Charter of Rights is meant to protect the basic rights and freedoms of all Canadian citizens.  Similarly, human rights legislation exists to promote equality among Canadians by prohibiting certain discriminatory practices.

A frequent question asked by PSAC members is, “What are our rights?”  As working people and as union members, we do have certain specific rights.  However, these rights are not always recognized in law.  For example, unions were in existence in Canadalong before a law was passed (i.e., P.C. 1003 in 1944) to give positive, legal recognition to the right to join a union.  In fact, in the very early years of trade unionism, people who formed and joined unions left themselves open to charges, convictions and imprisonment on grounds of criminal conspiracy in restraint of trade.  This didn’t stop those workers, however, because they were committed to the cause of union rights.

Laws do not create rights; they just give legal recognition and protection to the exercise of rights but there is no question our rights are strengthened when they have the full force and protection of the law behind them.

The struggle for rights is ongoing.  In seeking to establish, enhance, and preserve our rights, we have to show law-makers, the public, and employers just how important our rights are and what we are willing to do to defend them.  More specifically, just as our union predecessors went on strike, picketed, demonstrated, lobbied, fought, and yes, even died, to have the basic union rights of freedom to associate and to bargain collectively recognized by governments and employers, we struggle today to preserve these same rights under constant pressure to restrict the rights of workers and unions.

Due to the efforts of our predecessors in the union movement and in the PSAC members today can lay claim to a significant number of rights.  We have certain union rights that are enshrined in law; we have employee rights as found in our collective agreements; and, we have membership rights as set out in the PSAC constitution, the component by-laws, local by-laws and other regulations and directives as set in place by the decision-makers within the union.  In this and other handouts included in your kit, we examine these rights in more detail.

Keeping our rights means using them.  We have to exercise our rights in order to protect our interests and achieve our goals.  For instance, we uphold our right to vote by voting.   We uphold our right to equality by demanding fair and equal treatment and we uphold our right to free speech by voicing our opinions.

There is no right without responsibility.  As PSAC members, our rights are important to us.  We have a duty, therefore, to ensure those rights are respected by other members, by the employer, and by governments.  By our actions we demonstrate just how high a value we place on our rights.

Depending on where they work, PSAC members may be covered under one of a number of different labour laws.

PSAC members who work in:

  • the federal government departments and agencies are covered by the Public Service Labour Relations Act (PSLRA).

  • Crown Corporations are covered by the Canada Labour Code (CLC).

  • other employment situations are covered under the jurisdiction of provincial labour legislation (e.g., DeerLodgeHospital‑ The Manitoba Labour Relations Act; SNC St. Augustin – Quebec Labour Code; Amethyst House – Ontario Labour Relations Act).

  • the Yukon, Northwest and NunavutTerritoriesgovernments are covered by Territorial Acts.

Despite the different labour laws that apply to PSAC members, the same basic union rights are recognized and protected in each piece of legislation.

THE RIGHT TO JOIN A UNION

Under the law, the right of an employee to join a union is guaranteed.  Here are some examples of how this right is spelled out in law:

Public Service Labour Relations Act, Section 5

Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.

Canada Labour Code, Part 1, Section 8 (1)

Every employee is free to join the trade union of his choice and to participate in its lawful activities.

Manitoba Labour Relations Act, Section 5 (1)

Every employee has the right        

  1. to be a member of a union;

  2. to participate in the activities of a union; and

  3. to participate in the organization of a union.

Quebec Labour Code, Section 3

Every employee has the right to belong to the association of employees of his choice, and to participate in the formation, activities, and management of such association.

THE RIGHT TO PARTICIPATE IN UNION ACTIVITIES

The law not only protects a worker’s right to join a union, but also recognizes the worker’s right to be an active union member.

Many of us know members who do not want to get involved in the union.  Some of the reasons why they do not want to be active may include:   

  • fear that their employer, or manager, might prevent them in some way from being promoted;

  • fear of presenting a grievance because they might get “fired”;

  • fear they might get a “reputation” as a “complainer”; or

  • fear of disturbing a “friendly” relationship with management.

The law protects employees from employer interference by prohibiting “unfair labour practices” on the part of manage­ment.  Some examples of these outlawed practices include:

  • interference in the formation or administration of a union Local;

  • interference with the union representing its members;

  • discrimination because of union activity

Unfair Labour Practices can be about:

Interference in the formation or administration of a union Local

The employer or manager cannot participate or interfere with the process of certification (starting a union) by a group of employees.

Interference with the union representing its members

The employer or manager cannot prevent or interfere with the process of representation of employees by a union.

Discrimination because of union activity

The employer or manager cannot refuse to employ or to continue to employ, suspend, lay off, intimidate, threaten or otherwise discipline any person, because the person is involved in the union and its activities.

Discrimination against members and intimidation

The following kinds of actions might be leading indicators of a pattern of discrimi­nation:

Unequal Treatment:

  • Assigning you more than your fair share of dirty work;

  • Taking away the more interesting parts of your job;

  • Suddenly hassling you about how long you take for lunch while continuing to be flexible about other people’s lunch breaks.

Unfair Treatment:

  • Suddenly giving you too much work;

  • Suddenly giving you too little work;

  • Deciding that your job performance is no longer satisfactory even though it hasn’t changed.

Intimidation:

  • Refusing to promote you because you spend too much time on union business;

  • Complaining that you file too many grievances;

  • Threatening to discipline you if you continue to be involved in the union;

  • Noting in your personal evaluation that your job performance is affected by your union involvement.

We all want to have a good working relationship with our managers.  However, if the price of that relationship is to deny our rights or refuse to exercise them for fear of upset­ting the boss, then surely we are not getting a fair deal. 

THE RIGHT TO BARGAIN COLLECTIVELY

Why do workers join unions?  While the reasons may vary, what employees want most is a say in the decisions that affect their working lives.

Before unions, employers had sole authority to make such decisions.  Today this is still the case at non‑union­ized workplaces.  This system, however, rarely lends itself to fair and equal treatment for all workers.  It is also based on the premise that the employer alone knows what is best for employees.

In forming unions, workers join together to demand a say in the determination of their wages and working condi­tions.  They act collectively to pressure the employer to come to the bargaining table and negotiate with the union for one contract of employment that will apply equally to all employees.  This is the process of collective bargaining and it is one of our most essential union rights.

Labour laws recognize and protect the right to bargain collectively.  Once at the bargaining table, the union tries to nego­tiate the best possible collective agreement for its mem­bers.  To do this, the union needs to have substantial “power” to get the employer to listen to the union’s demands and eventually agree to many.  This power only comes from the union member­ship.  A good collective agreement doesn’t just happen ‑ it is the result of an intense process of negotiation with the employer during which the union membership remains firm and united behind their collective bargaining demands.

THE RIGHT TO STRIKE

Sometimes just asking at the bargaining table isn’t enough to get a good collective agreement.  At this point, the union members have to decide whether or not they are willing to take strike action to support their bargaining demands.  This is not an easy decision because no one wants a strike.  However, sometimes we need to strike in order to convince the employer that the members are serious about their bargain­ing demands.

Labour law reinforces popular opinion by treating the right to strike in negative terms.  While the law seeks to discourage and prevent strikes, it does not go so far as to ban them completely. 

The right to strike is the most controversial of all trade union rights.  This fact alone emphasizes its impor­tance.  As workers, the only real power we possess is the ability to withdraw our labour.  When we exercise our right to strike, we are defending and protecting all of our other workplace rights.

THE RIGHT TO GRIEVE

Having a collective agreement does not mean that the employer will always abide by it.  In fact, it is not uncom­mon for management to completely ignore provisions of the collec­tive agreement or to interpret those provisions in such a manner as to effectively deny employees their rights.  When this happens, there is cause for a griev­ance.

Simply stated, a grievance is a complaint in writing against the actions or lack of action of the employer in matters respecting employees’ terms and conditions of employment.  A grievance is the means by which we protect our rights under the collective agreement.  It is the redress available to us when the employer “breaks” the contract.

The right to grieve is a legal right.   The grievance procedure is designed so that decisions can be challenged based on objective facts, not on personal­ities.  Challenging decisions is a healthy and normal activity in our democratic society.

The whole system of griev­ances and arbitration/adju­dication reflects our wider system of justice.  The parties concerned are entitled to the same rights to a fair hearing.  These facts dispel the notion that the grievance process is unfair to management.  It is more than fair!

When employees grieve violations of the collective agreement or violations of other job rights, they act positively to protect their rights.  They stop management in any attempt to bypass or break the contract.  They take control of their working lives.