Queen’s Dons’ predicament provides a chance for practical education

Students should consider unionization in light of new contract

Nick Papageorge elaborates on the pros and cons of collective action.
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As the Supreme Court of Canada recognized nearly three decades ago, in the seminal case of Machtinger v. HOJ Industries Ltd., “Individual employees, and in particular non-unionized employees, are often in an unequal bargaining position in relation to their employers.”

A November article in The Journal entitled “Residence Don raises concerns about new contract” confirms that not much has changed since that case. The article discussed how Queen’s Dons are being asked to take on greater responsibilities of potentially uncertain scope in the 2020-21 employment term, and that at least some of them are displeased about this development.

Welcome to the harsh truth of the working world. Employers have long held outsized power over their employees. Indeed, much of our modern employment law has evolved from the outdated English concept of ‘master and servant’. While twenty-first-century employees are in a better position than their Dickensian counterparts, the imbalance persists.

It looks like some Queen’s Dons are getting a crash course in this reality.  Chief among their complaints is the new expectation that Dons maintain weekly office hours from 8 to 11 p.m. on Fridays or Saturdays. There’s also some concern over a contractual provision requiring Dons to perform any additional duties as directed by Residence Life staff.

However, none of this appears to violate Ontario’s Employment Standards Act or the various employment protections available through common law.  Dons aren’t being asked to work in excess of the maximum hours set by the Act. Dons are also not having their contracts substantially altered, as these requirements will only apply to Dons that are re-hired for next year. Any Don who thinks Res Life has gone too far is at liberty to find another job.

While the common law of employment recognizes the concept of constructive dismissal—the notion that an employee can resign and sue their employer for wrongful dismissal if their employer unilaterally changes a fundamental term of their contract—that isn’t what’s happening here. Even if these additional duties were being imposed mid-contract, the alteration is likely too minor to rise to the level of constructive dismissal.

The idea that Dons may need to perform additional duties not previously defined by their contracts is also unremarkable. Employment contracts are meant to be dynamic. Courts have long recognized that employment relationships develop over time, and that it would be impractical to foresee every development in that relationship or the employer’s shifting needs when the contract is signed. Again, only a fundamental change to the contract—say, telling a Don that they are now a caterer, or that they need to work twice as many hours for no extra pay—can rise to a feasible legal claim.

The question remains as to what action Dons can take against their updated contracts. As alluded to in the Supreme Court’s pronouncement about unequal bargaining power, one of the primary antidotes to the lack of individual bargaining power is unionization. In fact, it appears that Queen’s Dons considered this in a 2013 unionization drive, as a response to similar concerns about exploitation.

Unionization provides strength in numbers backed up by the potential for collective action. Once a union is certified, employers cannot negotiate directly with employees; instead, union representatives negotiate a single collective agreement that covers all employees in the bargaining unit. As a result, unionized employees generally enjoy higher wages, better benefits, and the ability to grieve and arbitrate disagreements with the employer. Additionally, the terms of a collective agreement can’t be changed unilaterally, and employers may need to justify decisions on matters such as discipline to a neutral arbitrator. As a result, unionized employees tend to be much less vulnerable to the whims of their employers.

But unionization is no mean feat, especially in the case of Dons, who come and go on a yearly basis. Certification of a union requires a simple majority vote, but getting those votes is never guaranteed—and a workforce whose composition is continually changing makes it that much harder to develop a consensus, or at least a favourable majority.

Additionally, most employers won’t embrace a union. Many will take steps—some legal, some falling afoul of the Ontario Labour Relations Act—to dissuade their employees from voting to unionize. The 2013 unionization drive at Queen’s evidently “fell flat” due to fears that “partaking in this process could damage [the Dons’] chances of getting rehired”.

While employers are legally prohibited from punishing an employee for most union-related activities (an offence known as an “unfair labour practice”), the fear that the employer will nevertheless do so is well founded. The jurisprudence of labour boards across the country is replete with decisions about unfair labour practice complaints. Even if labour boards do find that an employee was unlawfully targeted during a unionization drive, such rulings usually come long after the misconduct has cowed the drive.

Then there are the technical arguments against attempting to begin the long and complicated process of unionization. When Residence Advisors and Dons at Western attempted to unionize earlier this year, the University argued that these individuals were not employees and therefore had no right to unionize. It appears this argument was never tested at the Ontario Labour Relations Board, as the pro-union Dons could not muster the necessary votes.

All of which is to say that there are no easy solutions to the Dons’ contractual concerns. Developments such as minimum employment standards, the law of constructive dismissal, and the right to unionize aim to ameliorate the disadvantage experienced by many employees—but they don’t eradicate it.

Disaffected Dons now have some consequential decisions to make—such as whether the pros of the job outweigh the cons, or whether unionization is an idea worth exploring. Grappling with these questions will be as good of an education as anything to be found in a lecture hall this winter.

Nick Papageorge is a Queen’s ArtSci ’14 and University of Toronto Law ’18 graduate.

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