Questions, Questions: Has Weber Had an Impact on Unions' Representational Responsibilities in Workplace Human Rights Disputes?

AuthorClaire Mummé
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 
Questions, Questions:
Has Weber Had an Impact on Unions’
Representational Responsibilities in
Workplace Human Rights Disputes?
Cire Mummé
Union representation in Canada is premised on strength in num-
bers the collective makes each member stronger. But collective rep-
resentation, by its nature, can also produce tension between collective
and individual rights and interests. A recurring theme of Bernie Adell’s
scholarship was a concern for how best to balance this tension. He was,
in particular, critical of the union’s veto over access to labour arbitration,
* My sincere thanks to the organizers and participants in the CLCW’s Weber Con-
ference for a great few days of conversation, and useful comments on this essay.
Thanks in particular to anonymous reviewers for some very helpful nuances, to
Renée-Claude Drouin for providing me with a better sense of the legal context in
Quebec, to Aaron Bhogossian and Tori-Lee Jenkins for helpful research assistance,
and to Elizabeth Shilton for her ongoing support and intellectual engagement.
BL Adell, “The Duty of Fair Representation — Eective Protection for Individual
Rights in Collective Agreements?” () : Relations industrielles/Industrial
Relations ; Bernard Adell, “Collective Agreements and Individual Rights: A
Note on the Duty of Fair Representation” () : Queen’s Law Journal  [Adell,
“Collective Agreements”]; Bernard Adell, “Jurisdictional Overlap Between Arbitra-
tion and Other Forums: An Update” ()  Canadian Labour and Employment
Law Journal  [Adell, “Jurisdictional Overlap”]; Bernard Adell, “The Duty of Fair
Representation: ‘a form of words . . .’?,” (PowerPoint delivered at Adjudicating Hu-
man Rights in the Workplace After the Pinto Report, Where Do We Go Next?, CLCW
Workshop, Queen’s University,  November )) [unpublished].
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suggesting in  that the veto provided unions with too much power
over important personal rights. For this reason, he suggested, members
ought to have the right to bring forward a grievance to arbitration at their
own cost if the union refused to do so. Adell reiterated that concern after
the Supreme Court of Canada’s  decision in Weber which, he thought,
served to compound the tensions unions must manage between individ-
ual and collective rights.
There has been much commentary on Weber, and on the Supreme
Court’s subsequent  decision in Parry Sound (District) Welfare Ad-
ministration Board v Ontario Public Service Employees Union Local .
Concerns raised include the impact of these decisions on the institution
of labour arbitration, the more general implications of merging legal re-
gimes focused on individual rights into a system premised on collective
representation, the potential for diminution of the individual rights of
unionized employees, and the costs to unions associated with expanded
arbitral jurisdiction. Human rights issues have been at the centre of
Adell, “Collective Agreements” at –.
Adell, “Jurisdictional Overlap,” above note  at –; Weber v Ontario Hydro []
 SCR  [Weber].
 SCC  [Parry Sound].
Some of these issues are discussed in other chapters in this volume. See also Ronald
Pink & DC Wallbridge, “The Future of Labour Arbitration” (Paper delivered at The
 Administrative, Labour and Employment and Privacy and Access Conference,
Ottawa, – November ) () Canadian Bar Association; Fay Faraday,
“The Expanding Scope of Arbitration: Mainstreaming Human Rights Values and
Remedies” ()  Canadian Labour and Employment Law Journal ; Andrew
K Lokan & Maryth Yachnin,From Weber to Parry Sound: The Expanded Scope of
Arbitration” ()  Canadian Labour and Employment Law Journal ; John-Paul
Alexandrowicz, “Restoring the Role of Grievance Arbitration: A New Approach to
Weber” ()  Canadian Labour and Employment Law Journal ; Adell, “Juris-
dictional Overlap,” above note ; Richard MacDowell, “Labour Arbitration — The
New Labour Court?” ()  Canadian Labour and Employment Law Journal ;
Brian Etherington, “Promises, Promises: Notes on Diversity and Access to Justice”
() : Queen’s Law Journal ; Donald Carter, “Looking at Weber Five Years
Later: Is it Time for a New Approach?” ()  Canadian Labour and Employment
Law Journal ; Michel G Picher, “Dening the Scope of Arbitration: The Impact of
Weber: An Arbitrator’s Perspective” in Kevin Whitaker et al, eds, (–)  La-
bour Arbitration Year Book (Toronto: Lancaster House, ) ; Raymond Brown
& Brian Etherington. “Weber v Ontario Hydro: A Denial of Access to Justice for the
Organized Employee” ()  Canadian Labour and Employment Law Journal .
For a defence of exclusive arbitral jurisdiction, see Peter Gall, Andrea Zwack and
Katie Bayne, “Determining Human Rights Issues in the Unionized Workplace: The

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