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

• Author: Claire Mummé
• Pages: 229-254

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Questions, Questions:

Has Weber Had an Impact on Unions’

Representational Responsibilities in

Workplace Human Rights Disputes?

Cire Mummé

INTRODUCTION

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Workshop, Queen’s University,  November )) [unpublished].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