After being laid off, an employee at a Toronto-basedconstruction company grieved because an article in the collective agreementensured 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, whereavailable.”
The company contended that the provision discriminated basedon 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, Local353, argued that the article couldn’t be considered discriminatory because itwas intended to aid older workers who are less likely to be hired in theconstruction industry. The employer argued that because the union couldn’toffer proof that older electricians were at a disadvantage, the agreementshould be deemed discriminatory and in breach of the Human Rights Code.
The OLRB acknowledged that the union’s inclusion of thisarticle was done so with good intentions, but ultimately found that olderworkers did not require this protection and thus the provision breached the Human Rights Code.
The union also argued that the provision could be considereda special program under the Human Rights Code. Section 14(1) of the code states unique programs can be made to “relievehardship or economic disadvantage or to assist disadvantaged persons” toachieve equal opportunity in the workplace. However, because the employerfailed to apply for this program with the Human Rights Commission, it could notbe considered as a special program.
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