Rights of individuals — overviewEmployment rights

An employee or prospective employee has a number of rights relating to his employment that arise as a result of his union membership status:

• the right not to be refused employment because he is, or is not, a union member

• the right not to be subjected to any detriment by his employer for the purpose of preventing or deterring him from becoming or from ceasing to be a union member

• the right not to be dismissed because he is or is not a union member

Rights relating to activities involving unionsTime off for union-related activities

Trade union officials are entitled to reasonable paid time off during working hours to undertake certain specified trade union duties.

Similarly, union learning representatives are entitled to reasonable paid time off during working hours for certain specified learning and training purposes.

Any union member is entitled to take reasonable time off during working hours for 'trade union activities'. This is a wider concept than 'trade union duties'. There is however no statutory right to be paid in respect of time off for trade union activities.

Detriment and dismissal on union activities and recognition grounds

Employers must not subject workers to any detriment on grounds relating to union activities, or the use of union services, and must not dismiss workers on such grounds.

In addition, employers are prohibited from subjecting workers to any detriment, or dismissing them, on a number of specified grounds relating to recognition for collective bargaining purposes.

Rights under collective agreements

A collective agreement is an agreement negotiated between a trade union and an employer relating to one or more of a number of specified work-related matters.

As between trade union and employer, a collective agreement will, in general, be conclusively presumed not to have been intended by the union and the employer to be a legally enforceable contract, unless:

• it is in writing, and

• it contains a provision (however expressed) indicating that the parties intend it to be legally enforceable

As between employee and employer, the provisions of a collective agreement may, in some circumstances, be incorporated into individual contracts of employment.

Exclusion or expulsion

An individual has a statutory right not to be excluded or expelled from a trade union, save in certain specified circumstances. There is also a more limited common law right relating to exclusion or expulsion.

Discipline by trade unions

A union member has a statutory right not to be unjustifiably disciplined by his union. This is in addition to the common law right arising from his membership of a union and from the union’s rules.

Union subscriptions

Many employers enter into arrangements with one or more trade unions for the deduction by the employer of union subscriptions from the pay of workers who are also union members. This is commonly referred to as ‘check off’. However, the employer may only make such deductions where the worker has properly authorised the deduction.

Union advice and representation

Membership of a trade union gives an individual worker access to advice and other assistance from the union in a number of work-related contexts. An individual trade union member has a right to be represented by a union representative at any disciplinary and/or grievance hearing with his employer. A trade union will also represent its members on a collective basis in dialogue with their employer in various contexts.

A trade union will often provide legal advice, whether formal or informal, to its members. It may also provide representation for a member in legal proceedings. Where it does provide advice or representation it will be under a tortious duty to use reasonable skill and care. A union may therefore be liable in negligence for any breach of its duty of care when giving advice or representing a member.

Trade unions will also often provide financial support for members, in disputes with employers, by way of an indemnity in respect of legal costs.

In general, contracting out of statutory employment rights is prohibited. However, one of the statutory exceptions to the prohibition against contracting out is where a binding compromise agreement has been entered by the parties to a dispute. In this context, a union representative may, in specified circumstances, fall within the definition of ‘relevant independent adviser’ so as to facilitate a binding compromise agreement.