By Sheryl Smolkin
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The Ontario Labour Relations Board recently ruled that a 30-year old clause in a collective agreement protecting older workers from layoff was really age discrimination that violated the rights of younger workers.
The collective agreement negotiated by the International Brotherhood of Electrical Workers, Local 353 had a clause saying that 20 per cent of the work force must be over 50. But when a journeyman electrician over 50 was laid off, his employer Black & McDonald Inc. did not have enough over 50s to maintain that ratio.
As a result, the union filed a grievance on his behalf. The employer opposed the grievance and defended the layoff, arguing that the clause in the collective agreement was discriminatory.
The union responded that even if the relevant clause appeared to sanction age discrimination, it was permissible under the Human Rights Code because it benefitted a disadvantaged group (construction tradesmen 50 years and older).
The clause limiting the number of older workers who can be laid off was part of the collective agreement since 1978. However, the collective agreement had never been submitted to the Ontario Human Rights Commission for designation as a special program. The legality of the clause was raised in bargaining by the employer as recently as 2007, but the union maintained it was legal and would not agree to change the language. At that time, neither side wished to take the issue any further.
Evidence before the Board suggested that over a five year period, journeyman electricians over 50 years of age worked an average of 112 fewer hours/year than the younger cohort. However, the Board was not convinced the difference in hours was age-related, because journeyman electricians were dispatched from the hiring hall without regard to their birth dates.
While the Board accepted that it was the union’s intention to provide greater job security to older journeymen electricians, they found the collective agreement clearly differentiates between two classes of employees based on their age and therefore infringes the rights of employees under age 50.
Therefore they ruled that the employer did not violate the collective agreement when the grievor was laid off, because the company cannot be compelled to engage in conduct contrary to the Ontario Human Rights Code.