Desperate times call for desperate measures: Creative and innovative orders to end systemic discrimination

Grievance arbitrator Mtre Nathalie Faucher is trying to put an end to a decades-old discriminatory recruitment system that was established by the Syndicat des débardeurs du Port de Montréal. To achieve this, she turned to broad and unusual orders.

Background 

In the matter of Association des employeurs maritimes et Syndicat des débardeurs, SCFP, section locale 375, (T.A., 2023-04-14), 2023 QCTA 163 pitting the Association des employeurs maritimes (Employer) against the Syndicat des débardeurs, SCFP, section locale 375 (Union), the arbitrator, Mtre Nathalie Faucher, issued orders seeking to put an end to a discriminatory system set up by the Union. The Employer’s grievance covered the preparation of the list of potential candidates for the position of longshore worker submitted by the Union, claiming that the process prevented it from meeting its legal obligations, in particular regarding employment and human rights legislation. According to the collective agreement between the parties, 50% of the longshore workers hired by the Employer must come from the list of candidates referred by the Union. However, through this referral system, the Union submitted almost exclusively the names of family members of the longshore workers. 

On August 1, 2022, Mtre Faucher rendered an award in which she declared the Union’s practice, when preparing the list of candidate longshore workers, to be discriminatory and contrary to the Canadian Human Rights Act¹ (CHRA) and to the provisions of the collective agreement. Given the parties inability to agree on the appropriate remedies, the arbitrator rendered a second decision in which she ruled on the means of redress.

The practice at issue

According to the arbitrator, the Union’s referral system is a truly discriminatory and nepotistic situation. As far back as 1982, after the adoption of the CHRA, the situation was denounced before the Canada Labour Relations Board. In fact, the CHRA expressly provides that hiring candidates based on family status is a discriminatory practice. This issue was at the heart of several disputes between the parties but the practice never ceased. This led Mtre Faucher to conclude that it was not enough to order the Union to put an end to this practice to reach a lasting and effective solution. 

Under the collective agreement, the Employer must use the list of candidates prepared by the Union to hire the longshore workers. The rules and procedures used to prepare the list are entirely at the Union’s discretion and are not governed by the collective agreement. The result quickly became that the list of candidates contained almost exclusively the names of individuals with family ties to a longshore worker, without any verification as to the qualifications of these individuals or their ability to work as longshore workers. The list even included the names of young children who, in time, would meet the minimum age requirement for becoming a longshore worker This practice made it virtually impossible for anyone to be hired if they were not related to a longshore worker. 

Several measures to improve the situation were put in place but never had any long-term effects. As a result of decisions of the Canada Industrial Relations Board in 2005 and 2006, a committee managed by the Union was created with the responsibility for establishing objective criteria to evaluate the candidates eligible to be added to the list. The discriminatory practices continued as the Union simply adapted its tactics to circumvent the criteria. For example, calls for candidates were only posted in locations that were not accessible to the public and candidates were charged high application fees. Despite the Union’s concessions in recent years, including a 2015 agreement giving the Employer the option of recruiting 50% of longshore workers according to its own criteria, this nepotistic system prevented the Employer from complying with legislation and the collective agreement, which ultimately jeopardized the Old Port’s economic prosperity by depriving it of the best candidates. 

Orders 

Considering that the practice persisted despite the arrangements or decisions reached, in this recent decision, Mtre Faucher issued orders of unprecedented scope to put an end to the Union’s practice. In order to make the process transparent and allow anyone who so desires access to a career as a longshore worker, she issued several orders, the most significant of which are as follows: 

• The Union must inform its members of decisions by sending them a copy by mail and publishing them on its website and Facebook page.
• The Union must adopt a non-discriminatory recruitment program within three months of the decision – the arbitrator reserves its jurisdiction for the purpose of approving this program.
• Calls for candidates must be published in at least two of the following media: 1) the career section of a print newspaper; 2) a recognized recruitment website; 3) social media or 4) a government job search site.
• No fees will be charged to candidates for inclusion on the Union list.
• During the first two years following the adoption of the new non-discriminatory policy, the Union must report to an independent third party appointed by the arbitrator, that is to say, Mtre Louise Viau, a retired arbitrator formerly appointed in the collective agreement. The Union is responsible for paying Mtre Viau’s costs and fees.
• The arbitrator specifically indicates what should be included in the report to the third party.
• Finally, in the event that the third party or the Employer finds that the Union has not complied with these orders, he or she shall inform the arbitrator who will call the parties to a new hearing. The arbitrator therefore reserves her jurisdiction for this purpose as well.

Takeaways

The arbitrator issued very broad and innovative orders to end a long-standing discriminatory practice. The Union did not file an application for judicial review. 
This decision could have an impact similar to that of the passage in 2011 of An Act to eliminate union placement and improve the operation of the construction industry.² The purpose of the Act was to eliminate union placement, by requiring that all labour referrals go through the labour-referral service for the construction industry, administered by the Commission de la construction du Québec. As in the maritime sector, the construction industry faced issues related to union placement. Mtre Faucher’s decision could very well be a first step towards a more open and transparent recruitment process for the job of longshore workers.

The author wishes to thank Jacques-André Simard, articling student, for his help in preparing this legal update.