Over the last several weeks I’ve laid out some of the changes that will affect workplaces governed by the Employment Standards Act, 2000 (ESA). In this post I’ll touch on how Bill 148 proposes to change the legislation that governs the business of unions, the Labour Relations Act, 1995 (LRA). Like the proposed changes to the ESA, the overall tone of these changes is pro employee/union.
Certification Process
Many of the changes involve the certification process, which is the process by which a workplace or group of workers becomes unionized. Certifications can be a shifty business, and historically both employers and employee organizers have been known to play dirty, or skirt the rules. The proposed amendments aim to combat some of these issues. Here are some of the proposed changes:
- Under the revised LRA the Ontario Labour Relations Board (OLRB) would be able to order the employer to provide the union with a list of employee names and contact information, where the union can demonstrate that at least 20% of the organization’s employees are already members of the union. Having names and contact information would make the certification process easier for the Union;
- Following certification, first contract arbitration would be streamlined and include a mediation requirement;
- Certification in the temporary help agency industry, the building services sector and home care and community services industry would be “card-based.” Card-based certification, whereby employees express their wish to join the union by signing a card, is favoured by unions. In vote-based certification, employees sign a card and then a secret vote is held. Unions have argued that the time in between the signing of the card and the vote gives employers an opportunity to coerce employees into voting against unionization;
- Under the proposed amendments, unions would be more easily able to certify where the employer engages in misconduct that contravenes the LRA;
- The OLRB would have the power to conduct certification votes electronically and by telephone;
- Labour Relations Officers would be authorized to give directions regarding the voting process to assure neutrality; and
- Employers would not be able to discipline or discharge (without just cause) any unionized employee during the period in between certification and conclusion of the first contract.
Discipline/Discharge Freeze
Similar to the freeze during the negotiation of the first contract, employers will also not be able to discipline or discharge (without just cause) any unionized employee between the date at which the employees are in a legal strike or lockout position and the execution of the new collective agreement. Most collective agreements contain “just cause” protection, that does not allow employers to terminate employees but for “just cause.” This change extends that protection to periods where there is no collective agreement in force.
Successor Rights in Building Services
An interesting change relates to the extension of successor rights to instances where building services are re-tendered. Building services are services such as cleaning, food and security services. The change will make it easier for unions to retain bargaining units when work is re-tendered and a new provider chosen. For example, if unionized staff provide the security services at a building, when the security services contract is retendered any existing bargaining rights and collective agreements applying to the previous security staff will transfer to the new provider of those services. This could temper service providers, who do not have unionized employees from bidding on work in buildings with existing union relationships.
Structure of Bargaining Units
The proposed legislation would allow the OLRB to change the structure of bargaining units where one employer has multiple bargaining units, all within the same union.
In order for the OLRB to review and potentially consolidate bargaining units, the following conditions must be met:
- The application requesting the review is made at the time of the certification application, or within the subsequent three months;
- No collective agreement can have been entered into yet; and
- The trade union certified, already represents employees of that employer in another bargaining unit.
Upon application, and if the above conditions are met, the OLRB would have the power to consolidate bargaining units, amend the description of the bargaining unit, direct which collective agreement will apply, with or without modification, and amend the collective agreement in order to ensure the consolidation works in practice.
The impact of this change will likely be that the OLRB will more easily certify small and fragmented bargaining units, which previously would not have been appropriate candidates for certification.
Notably, these new powers would not apply to the construction industry.
Return to Work from Strike
This proposed change would remove the six-month limitation under which striking employees can apply to return to work. Employers will be required to reinstate employees at the conclusion of lawful strike or lockout and employees will have access to arbitration if there is any refusal to reinstate an employee.
Maximum fines under the LRA would increase to $5,000 for individuals and $100,000 for organizations (up from the current $2,000 for individuals and $25,000 for organizations).
This concludes my series on Bill 148 for now. As always we will keep you posted as to what happens through the public consultation process and when the legislature gets back to work after the summer break.
