Dismissal of vaccine mandate union grievance could set precedent

A union representing some seven-dozen employees of a Hamilton-based oil processing plant has failed in its attempt to overturn a mandatory COVID-19 company vaccination policy, potentially setting a precedent for Ontario employers in future related arbitration cases.

An Ontario arbitrator ruled Tuesday to dismiss a grievance filed against Bunge Canada by the United Food and Commercial Workers Union Local 175, who claimed the employer's enforcement of a vaccine mandate violated workers' personal privacy and rights.

It marks just the fourth vaccine-related grievance between unions and private companies heard in Ontario during the pandemic - all but one of which were either fully or partly dismissed.

The recent decision involving Bunge could sway more unions to abandon yet heard vaccine mandate challenges against employers, argues a local employment and human rights lawyer.

Given the science as we know it - as uncertain sometimes and as changing as it is - I don't think you're going to find an arbitrator, human rights tribunal adjudicator or a judge who is going to fault an employer for taking the more cautious route," said Ed Canning, a partner at Ross and McBride.

You'd think that, with these mounting decisions, unions will spend less time and energy grieving vaccination policies anymore."

According to an agreed statement of facts, Bunge is an oilseed processing company with more than 120 workers, 84 of whom are unionized. It operates from two locations that sit directly across from each other: one on Victoria Avenue North, the other on Burlington Street East.

In June, the company issued its first vaccination policy intended to better gauge the number of workers inoculated against COVID-19. Employees were encouraged, but not required to disclose their vaccination status, and there were no disciplinary actions taken if an employee declined disclosure.

But that changed in November after the federally regulated Hamilton-Oshawa Port Authority (HOPA) announced all workers of companies in the port would have to be fully vaccinated to remain on-site.

Bunge - whose primary facility on Victoria is owned by HOPA - in turn issued a new, stricter vaccine policy to employees that required them to provide proof of vaccination by Jan. 24, 2022, or be placed on unpaid leave.

Local 175 filed a grievance a day after the notice. Its argument was largely twofold.

On the one hand, they claimed, enforcement of a vaccine policy was an unreasonable exercise of management rights and infringed upon employees' rights to keep confidential medical information private.

On the other was a more complicated issue concerning the geographical placement of Bunge's operations. Because Bunge only leases its Victoria property from HOPA - and HOPA's vaccine mandate only applies to tenant companies - the union argued Bunge couldn't justify enforcing the policy at its privately owned Burlington location.

But arbitrator Robert Herman didn't see it that way.

While HOPA's policy doesn't extend to Bunge's property on Burlington, Herman noted in his decision that both sites are integral to the company's operations. Employees are regularly scheduled for shifts in either, he wrote, and often transfer from one to the other during work for different assignments.

(A)ny intermingling of employees between sites would place all employees at greater risk of infection from COVID-19," Herman wrote. In effect, treating the two facilities as distinct and geographically separate parts of the business would preclude interaction of employees between sites and would impede the existing integration of operation between the two sites."

Herman upheld the policy and found it reasonable given that Bunge would see business significantly disrupted if different rules applied to the two sites. Although it's not mandatory for private companies to enforce vaccine mandates, he said employers have an obligation to protect the health and safety of all of its employees.

Local 175 did not respond to request for comment.

In a statement, Bunge said it's committed to abiding by federally applied laws as a good corporate citizen and tenant" of the port.

This decision allows Bunge to comply with federal mandates and operate in compliance and good standing," they said.

Sebastian Bron is a reporter at The Spectator. sbron@thespec.com