Ontario Labour Relations Board finds agreement discriminates based on age
After being laid off, an employee at a Toronto-based construction company grieved because an article in the collective agreement ensured a number of employees over the age of 50 remained with the company.
In the provision, when five or more Journeymen are employed, “every fifth (5th) Journeyman shall be fifty (50) years of age or older, where available.”
The company contended that the provision discriminated based on age, contrary to the Human Rights Code, and should not be upheld by the Ontario Labour Relations Board (OLRB).
The International Brotherhood of Electrical Workers, Local 353, argued that the article couldn’t be considered discriminatory because it was intended to aid older workers who are less likely to be hired in the construction industry. The employer argued that because the union couldn’t offer proof that older electricians were at a disadvantage, the agreement should be deemed discriminatory and in breach of the Human Rights Code.
The OLRB acknowledged that the union’s inclusion of this article was done so with good intentions, but ultimately found that older workers did not require this protection and thus the provision breached the Human Rights Code.
The union also argued that the provision could be considered a special program under the Human Rights Code. Section 14(1) of the code states unique programs can be made to “relieve hardship or economic disadvantage or to assist disadvantaged persons” to achieve equal opportunity in the workplace. However, because the employer failed to apply for this program with the Human Rights Commission, it could not be considered as a special program.
