The Supreme Court of Canada has affirmed an arbitral award that concluded an employer’s right to hire workers was restricted by union hiring hall language in the collective agreement.
The collective agreement in question contained a typical management rights provision giving the employer the right to hire and select workers, subject to the terms of the agreement. The collective agreement also contained a hiring hall provision that allowed the employer to “name hire” the first 20 employees dispatched to a job site and to refuse to accept dispatched workers who did not possess required qualifications or who had been terminated by the employer for just cause.
The employer provided the union with a list of 22 workers that it did not wish to have dispatched to its job sites. The list included the grievor and other employees who were qualified and who had not been terminated for just cause. The union subsequently dispatched workers from the list to the employer’s job sites. The employer refused to provide work to one of the disputed workers.
An arbitrator concluded that the collective agreement hiring hall language clearly limited the employer’s general management right to hire and select workers. As the employee in question had not been terminated for cause and possessed the required qualifications for the job, the arbitrator determined the employer had no right to refuse to provide her with work once she was dispatched.
The arbitrator’s award was overturned on judicial review on the basis that the arbitrator exceeded her jurisdiction by amending the collective agreement. The case was eventually appealed to the Supreme Court of Canada, which held that the lower courts applied a standard of review that was too strict, and consequently upheld the arbitration award on the basis that it met the standard of “reasonableness”.
This case may be significant for employers who rely on union hiring halls to dispatch workers to their job sites. The decision highlights the need for a careful review of hiring hall language in the collective agreement to determine whether such provisions are sufficient to provide the employer with the right to restrict or refuse dispatched workers if necessary.
Voice Construction Ltd. v. Construction & General Workers’ Union, Local 92, 2004 SCC 23. April 8, 2004