[1989] OLRB Rep. August 922
0237-89-M Dana M. Colarusso, Applicant v. Canadian Union of Educational Workers, Local 2, Respondent Trade Union v. Department of English University of Toronto, Respondent Employer
BEFORE: Michael Bendel, Vice-Chair, and Board Members W. H. Wightman and R. R. Montague.
APPEARANCES: Dana Mafalda Colarusso for the applicant; Richard A. Blair, Vanessa Kelly and Brian Robinson for the respondent trade union; W. S. Cook and J. H. Parker for the respondent employer.
DECISION OF THE BOARD; August 16, 1989
This is an application for exemption from union security provisions on the grounds of religious conviction or belief pursuant to section 47 of the Labour Relations Act.
At the conclusion of the hearing of this matter, the Board gave oral reasons for dismissing the application. The applicant has now asked that reasons be given in writing.
Section 47 of the Act reads as follows:
47.-(1) Where the Board is satisfied that an employee because of his religious conviction or belief,
(a) objects to joining a trade union; or
(b) objects to the paying of dues or other assessments to a trade union, the Board may order that the provisions of a collective agreement of the type mentioned in clause 46(1)(a) do not apply to such employee and that the employee is not required to join the trade union, to be or continue to be a member of the trade union, or to pay any dues, fees or assessments to the trade union, provided that amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization mutually agreed upon by the employee and the trade union, but if the employee and the trade union fail to so agree then to such charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) as may be designated by the Board.
(2) Subsection (1) applies to employees in the employ of an employer at the time a collective agreement containing a provision of the kind mentioned in subsection (1) is first entered into with that employer and only during the life of such collective agreement, and does not apply to employees whose employment commences after the entering into of the collective agreement.
- The bargaining agent was certified for this bargaining unit in the mid-1970's. In March
1989, the current collective agreement was signed. It provides for mandatory dues check-off, as have the three or four previous collective agreements going back to 1980. The applicant has been an employee in the bargaining unit since January 1989. The ground relied upon by the applicant in seeking exemption from union dues is that the union "has a pro-choice policy and I am a Roman Catholic with an anti-abortion conscience."
Counsel for the respondent trade union opposed the application on the ground that it was untimely. Relying on a long line of cases interpreting and explaining subsection 47(2), counsel argued that an application can only be brought by an employee who is employed at the time the first collective agreement requiring the deduction of union dues is entered into.
The applicant did not dispute this interpretation of subsection 47(2) as such. She argued, however, that the restrictions on the exemption from the mandatory payment of dues contained in subsection 47(2) conflicted with the Ontario Human Rights Code, S.O. 1981, c. 53. She claimed that she could not continue to work as a teaching assistant if she was required to pay dues to this union since she could not reconcile support for a pro-choice stand on abortion with her own religious beliefs. It was unfair to her to have to make a choice between her work and her religious beliefs. The Code protected her, she claimed, from this "constructive discrimination", as she called it. She argued that the provisions of the Code had precedence over subsection 47(2).
The applicant also drew our attention to section 13 of the Act, which reads as follows:
The Board shall not certify a trade union if any employer or any employers' organization has participated in its formation or administration or has contributed financial or other support to it or if it discriminates against any person because of any ground of discrimination prohibited by the Human Rights Code, 1981 or the Canadian Charter of Rights and Freedoms.
It was not seriously argued by the applicant that her application was "timely" under subsection 47(2) and it is therefore not necessary for us to elaborate on our conclusion that subsection 47(2) is a bar to the application. As for the applicant's reliance on the Human Rights Code, we note that this very issue was considered by the Board in Umex Corp. Ltd., [1981] OLRB Rep. Nov. 1691, a case cited by counsel for the trade union. The Board there reached the following conclusion on the relationship between section 47 of the Act and the Human Rights Code:
If the applicant's contention is that section 47(2) of the Labour Relations Act is either void or unenforceable because it is in conflict with The Ontario Human Rights Code, we see no basis for this contention. The provisions of the Code relied upon prohibit discrimination against a person because of, inter alia, his "creed". We fail to see how section 47(2) conflicts with this prohibition. In any event, even if this was the case, the applicant's contention still must fail since the Code does not have primacy over the Labour Relations Act, and cannot affect its interpretation or enforcement.
No reasons were advanced by the applicant to persuade us that the decision in Umex Corp. Ltd. should not be followed. We agree with the conclusion in that case. In our view, the Human Rights Code does not purport to prevail over the provisions of other legislation and it does not have the effect of prevailing over the Labour Relations Act.
As for section 13 of the Act, also relied on by the applicant, it would appear to us to have no relevance to the question of the applicant's request that she be exempted from union dues. And since the application before the Board is one for exemption from union dues, not a request that we reconsider the trade union's certification, no useful purpose would be served by going into the question of whether the union's pro-choice position on abortion constitutes discrimination within the meaning of section 13. We should add that we cannot entertain any arguments, on this application, about the impact of this alleged discrimination on the union's bargaining rights.
It was for these reasons that the Board dismissed the application.