Rights and Responsibilities of Unions and Professional Associations

Questions in this section (click on question):

26. What is a union's responsibility in the search for accommodation?
27. Does accommodation supercede seniority rights? 

26. What is a union's responsibility in the search for accommodation? 

Unions play a pivotal role in the accommodation process. While the employer has the primary duty to provide reasonable accommodation, in some circumstances the union shares that responsibility.

The union's responsibility depends on the source of the discrimination. The union will share responsibility where the union has participated in forming a discriminatory work rule, including a provision of the collective agreement. A union will also be responsible if it impedes the reasonable efforts of an employer to accommodate an employee. For example, the collective agreement may contain provisions on shift work and hours of work that exclude employees that refrain from work on their Sabbath.

The union's duty to accommodate only arises when its participation is required to make accommodation possible and no other reasonable alternative solution has been found or could reasonably be found. In the case of the employee who observes a Sabbath day, a union could make an exception to its collective agreement, so that the employee can take an alternate shift arrangement. And the rule itself can be changed when the collective agreement is next re-negotiated.

The relationship between the employer’s and the union's responsibilities must take into account the union's duty to represent the best interests of all its members. This means that the union may not agree to accommodations that hurt the rights of other members of the union. If the union does not agree to an accommodation proposed by the employer, it must put forward alternative measures that it believes are less onerous for its members.

In some situations, the best accommodation conflicts with the collective agreement or with the rights of other union members. In these situations, the union will have to work with the employer to amend the collective agreement.

27. Does accommodation supercede seniority rights? 

As indicated in Question #16 (What if the accommodation conflicts with a collective agreement?), the duty to accommodate prevails over private arrangements such as collective agreements. However, if doing so substantially changes the operation of the collective agreement, then the accommodation may amount to undue interference and may thus be undue hardship.¹⁴

Sometimes, the rules of seniority can prevent an accommodation. For example, if an employee with a sleep disorder is unable to work night shifts, the request to exclude nights shifts from his schedule might conflict with the seniority rights of a long-term employee who has earned the exclusion from night shifts. In this case, the union will have to consider whether accommodating the employee will pose an undue hardship. This would depend on the size of the workplace, the impact on the collective agreement and employee morale.

Union members have a legitimate interest in ensuring the employer implements the terms of the collective agreement. Where those interests are so threatened by a proposed accommodation that it would cause undue hardship, the union may reject the accommodation. However, maintaining the integrity of a collective agreement is not enough to justify its discriminatory impact. Some employers and unions have developed joint “accommodation committees” to maximize opportunities to accommodate and minimize the impact of accommodation on the collective agreement.

¹⁴ Renaud, v. Central Okanagan School Board and C.U.P.E., 16 CHRR D/425 (S.C.C.)