Written by Michael J Weiler

A step backwards

In June 2015 the Federal Conservatives passed legislation to ensure that all federally regulated employees would have a secret ballot vote in any union certification application.   As one of the first orders of business the new Liberal government will take away that right when Bill C-4 passes into law.CURRENT LAWThe Canada Labour Code (“CLC”) was amended in June 2015 by the Employees’ Voting Rights Act  (“Amending Act”) which required the Canadian Industrial Relations Board (“CIRB”) to hold a mandatory secret ballot vote in almost all union applications for certification as well as decertification applications.  This brought the federal legislation in line with mainstream provincial labour codes.  For example in 2002 the B.C. Liberals amended the BC Labour Relations Code to eliminate the card-based certification system and require a vote in almost all union certification applications in B.C.The CIRB has introduced expedited procedures that now protect unions and employees by requiring, inter alia, a vote usually within 12 days similar to the provincial procedures.  The CIRB summarized the new expedited procedures as follows:Highlights of the Changes

• All applications will be processed pursuant to expedited timelines.
• The applicant trade union must serve a copy of the application as well as a “certification package” on the employer and any incumbent bargaining agent on the same day the application is filed with the Board.
• The applicant trade union must file the original membership evidence relating to the application when filing it with the Board. An application is considered filed with the Board on the day the application and the original membership evidence are received. Failure to submit the required evidence may result in the summary dismissal of the application by the Board.
• All applications must be filed in person or by courier. Applications received by fax, mail or registered mail will not be accepted. Any subsequent documents can be filed by fax or through the Board’s e-filing portal which is accessible from its website.
• Applications can be filed in any one of the Board’s regional offices with the exception of the Winnipeg satellite office.
• The employer and any incumbent bargaining agent will have 5 calendar days from the receipt of the application to file a response and to submit all required information and documents to the Board.
• The applicant will have 2 calendar days from the receipt of the response to file a reply.
• All requests to intervene must be filed with the Board no later than 5 calendar days after the potential intervenor is notified of the application and must include, among other requirements, written submission on the merits of the application. The parties will have 2 calendar days from receipt of the request to intervene to file a response.
• Requests for extension of the time limits for submitting information, responding or replying will not be granted unless exceptional circumstances warrant it.
• All parties are required to complete and file a Vote Arrangements form with the Board.
• If ordered by the Board, a representation vote is likely to commence 12 days after the date the application is filed.

As well, unions under the CLC continue to have the protection of unfair labour practice prohibitions with strong remedial authority in the CIRB to remedy any such breaches including ordering remedial certification without a vote.‍

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NEW LAW

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‍The Federal Liberals introduced Bill C-4 on January 28th, 2016 which will turn the clock back and abolish the mandatory secret ballot in union certification for federal employers where the union can show it has signed up more than 50% of employees in an appropriate bargaining unit.  The explanatory note to Bill C-4 says it all:This enactment amends the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act to restore the procedures for the certification and the revocation of certification of bargaining agents that existed before June 16, 2015.    

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It also amends the Income Tax Act to remove from that Act the requirement that labour organizations and labour trusts provide annually to the Minister of National Revenue certain information returns containing specific information that would be made available to the public.

‍The Liberals are looking more and more like the NDP by not only making these changes that favour unions but also by placing such a high priority to fulfill its commitments to big unions to restore automatic union certification based on a card system without testing that support in a secret ballot vote.  

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This step backwards will tip the delicate balance in labour relations in favour of unions to the detriment of not only federal employers but more importantly their employees as well.  Unions do have a real business concern about legislation requiring a vote in all cases.  In my experience under the BC Labour Relations Code the reality is that when employees get a chance to understand the issues without pressure from peers and professional union organizers they will in many cases vote against union representation, preferring to continue to deal with their employer directly.  

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The key is that the secret ballot vote ensures that employees’ true wishes are made known.  That, in fact, is in all parties’ interests including unions.  If the union wins the vote then employers cannot in my view challenge their legitimacy and will have to seriously bargain in good faith to achieve a collective agreement.I suspect there will be a short period of limited union organizing activity in light of this legislation, as unions will want to wait until Bill C-4 is passed into law before applying for certification and not have to face the prospects of winning a secret ballot vote.  Federally regulated employers who wish to remain non-union should not place much comfort in this short reprieve. We will keep you posted on the progress of Bill C-4.  In the meantime employers covered by the CLC  may wish to revisit their strategies in anticipation of the passage of this legislation.

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‍IMPACT ON B.C. EMPLOYERS GOVERNED BY THE B.C. LABOUR RELATIONS CODE

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‍The vast majority of employers in B.C. are governed by the B.C. Labour Relations Code.  The CLC applies to a limited number of employers such as banks, broadcasters, airlines, inter-provincial trucking companies etc. so it might be thought that this development at the federal level is of little consequence.  However with a provincial election in 2017 the fact remains that if the NDP is elected the abolition of the secret ballot vote will undoubtedly be part of their election platform just like it was part of the Trudeau Liberals’ platform in the last election.  This trend then at the federal level will not be good news for provincial employers.