BY: Mike Weiler

The 2020 NDP victory in the provincial election meant that the shackles of the deal with the Green Party that allowed them to govern in a minority situation were removed and the government could now legislate as a majority without concerns for the Green Party’s interests.  One of the key constraints on the NDP as a result of the Green Agreement was that it could not get rid of the secret ballot vote requirement in a union certification drive.  Once over the immediate COVID concerns, the NDP will most likely continue in 2021 with its aggressive agenda as outlined in its Policies Proposals issued in the election and in the individual Mandate letters provided to each minister.  Minister Bains remains Minister of Labour and his mandate letter suggests more significant changes are coming soon in his portfolio.  Here are some legislative and policy initiatives I expect we will see in 2021 and years following.  

LABOUR RELATIONS CODE—REMOVAL OF THE SECRET BALLOT VOTE

In May 2019 I reviewed the changes to the Labour Relations Code introduced by the NDP: see my blog articles from May 10th and May 13th 2019.

The changes were significant but the one redeeming grace in all of this was that the NDP kept the secret ballot vote in union certifications and did not go to the card check system they introduced back in 1992.  The introduction of the secret ballot vote by the Liberals in 2002 was a significant change that ensured that it was employees exercising their rights that gave the union the right to be their exclusive bargaining agent.  But the reality was that union certifications were reduced in subsequent years because employees made that choice.

The reason the NDP did not go to a card check system was simply because the Green Party made it clear they would vote against such a proposal.  However it should be noted that the cost to employers and employees of saving this fundamental right was the loss of other rights such as employer free speech (the Code now has the language the NPD had in 1992) and other changes such as remedial certification if there were unfair labour practices (in a recent case this amendment allowed the LRB to certify without a vote a bargaining unit of 90 employees because two employee organizers were terminated).

Without the Green Party to restrain the NDP it is my view that the NDP will eliminate the secret ballot vote sometime in 2021 perhaps as early as the Spring Session.  The Mandate letter strongly suggests this change.  Furthermore the history of the provision makes it most likely that this change is coming.  Vaughn Palmer in a recent article in the Vancouver Sun provided a careful analysis of why this might well happen, read here.

The NDP recently extended the length of time union cards are valid perhaps anticipating the return to the card check system.

Undoubtedly this removal of the secret ballot vote coupled with the other changes to the Code in 2019 will make it much easier for unions to certify many more businesses in B C over the next few years.  Employers, both nonunion and partially union, are wise to consider the potential of these changes now and prepare themselves for such a certification application.

RESTORE COMPULSORY TRADES

The Mandate letter states:

“Support the work of the Minister of Advanced Education to restore the compulsory trades system to improved safety and give more workers a path to apprenticeship completion.”

A compulsory trades system restricts the practice of a trade, or certain aspects within the trade, to certified journeypersons or an indentured apprentice. The designation and the criteria used to designate compulsory trades vary from province to province, with the number of trades included varying from 3 in PEI to 23 in Ontario. The most common compulsory trades include electrician, crane operators, refrigeration and air-conditioning mechanics, and automotive service technicians.

B C is one of the few provinces without a compulsory trades system.  It is not clear how this will be accomplished or for example how many trades there will be under the new system.  But the changes will likely not be greeted favourably by employers.

WORKERS COMPENSATION

Since coming to power Minister Bains has been very active in commissioning reports on changes to WorkSafe and also introducing a number of changes in this last term.

My colleague Chris Drinovz recently presented a summary of the types of changes to WorkSafe that have been made or likely will be made in this article. We also have a video available with this information here.

One specific item noted in the Mandate letter is to work to develop better options for chronic work-related pain.

Employers can expect more regulation and higher costs as WorkSafe moves towards a “worker centric” focus.

EMPLOYMENT STANDARDS ACT

In 2019 the NDP made substantial changes to the Employment Standards Act that I reviewed in my May 2019 blog here.

The Mandate letter sets out a number of areas where we can expect changes to the E S Act.  For example the minimum wage will go to $15.20 per hour in June 2021.  In subsequent years the minimum wage will be tied to inflation.  This is a welcome change for employers as it provides predictability.

The Mandate letter references changes that will be made to address the gig economy:

“As part of the precarious work strategy, propose employment standards targeted to precarious and gig economy workers, and investigate the feasibility of a government-backed collective benefit fund and access to a voluntary pooed-capital pension plan for workers who do not otherwise have coverage”.

Depending on what the federal government does with a national sick leave program the NDP may well institute a sick leave program that goes beyond the COVID crisis.

The Minister is also told to work with and support “the Parliamentary Secretary for Gender Equity’s work to close the gender pay gap by addressing systemic discrimination in the workplace and through new pay transparency legislation. “It is not clear where legislative changes would be made in this regard.

As well there are many other recommendations contained in the BC Law Institute Report that may also be considered over the next few years likely focused to strengthen workers’ rights.

Note to our Readers: This is not legal advice. If you are looking for legal advice in relation to a particular matter, please contact our Employment & Labour Group.