Walking the line between simple communication and interference

Avoiding interference with union organizing
By Tim Mitchell
|Canadian Employment Law Today|Last Updated: 07/06/2016

Question: When a union organizing drive is taking place in a non-unionized workplace, how far can an employer legally go to inform its employees of its position against the drive?

Answer: Broadly speaking, the regulation of employer communications during an organizing drive involves the balancing of employer and employee rights. An employer’s right to inform employees of its views, often referred to as employer free speech, is balanced against its employees’ statutory rights to join a union, to participate in its lawful activities and to choose a bargaining representative freely and without employer interference.

While employers are not prohibited from expressing their views, and are often given the express right to do so subject to certain conditions, their communications with employees cannot encroach on these employee rights. Unfair labour practice provisions in every province and in the federal jurisdiction provide a remedy where it is alleged that employer communications have gone too far. There are many similarities in the legislation and consistent themes running through the case law. However, the statutes do differ from jurisdiction to jurisdiction. The terms of the relevant legislation and the jurisprudence interpreting that legislation should be considered in assessing the appropriateness of a communication in any particular case.