A recent New Brunswick Court of Queen’s Bench decision on the right to association for casual employees highlights unions’ quest to expand their bases, say labour lawyers.
Crystal Gamble, a labour law partner with McInnes Cooper, says the decision in CUPE v. Province of New Brunswick highlights two ways unions have used the courts to achieve the right to association for potential members. In this case, the unions sought a remedy to the exclusion of casual employees in New Brunswick from the right to association.
“The real trend here is not a new trend,” Gamble says. “Unions are looking for a way to expand their bases.”
Gamble says casual employees are a target group for unions. Another target group is employees who are covered by specific exclusions written into legislation.
In the latter cases, the labour movement has used the right to freedom of association guaranteed by the Charter of Rights and Freedoms to allow specifically excluded employees to bargain collectively. The recent New Brunswick decision is an example of both strategies.
New Brunswick’s Public Service Labour Relations Act states, “every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which he is a member.”
The definition of employee excluded casual employees or workers that have been in continuous service for less than six months.
According to evidence in the case, casual employees were required to take unpaid vacation every six months. This would prevent those employees from gaining de facto permanent status and be able to join the collective bargaining groups.
The case cited the Supreme Court of Canada’s Dunmore v. Ontario. It sought the right to association for agricultural workers.
“I find that ‘casuals’ are a vulnerable group as were the agricultural workers in Dunmore,” wrote Justice Paulette Garnett in CUPE. “As Justice Michel Bastarache stated in that case, ‘history has shown’ that ‘a posture of government restraint’ will ‘expose most workers . . . to a range of unfair labour practices.’
“The evidence in this matter shows that history has repeated itself. For many years the province as employer has subjected ‘casuals’ to practices which can only be described as unfair.”
Garnett has given the province one year to amend its legislation to allow casual employees the right to association.
“We are very pleased with this victory,” said Daniel Légère, president of CUPE New Brunswick. “We have casual workers in this province who have been working as ‘casual’ in the public sector for years. Those workers have no rights, earn less, and have no benefits.”
Calls to CUPE’s national office were not returned prior to press time.
Vicki Giles, the head of the labour and employment law group at McLennan Ross LLP in Edmonton, says Alberta does not have similar exclusions for casual employees. However, the province is beginning to see other actions based on specific exclusions in legislation.
“In our Public Service Employee Relations Act there are various groups that are excluded, systems analysts are excluded and there are some other positions which are specifically excluded from the legislation,” she says.
“We are already starting to see challenges to those exclusions based on the same reasoning. I wasn’t surprised to see this decision coming out of New Brunswick and it just seems like it is one on a path of many.”