In our January 16, 2015 Communique, we advised you that the Federal Conservative Government of the day had passed the Employees' Voting Rights Act ("EVRA") which significantly changed the way in which unions acquire and lose bargaining rights in the federal sector in Canada. The EVRA became effective in June, 2015. The EVRA amended the Canada Labour Code (the "Code"), the primary legislation which governs labour relations in the federal sector, to provide that a union must have the support of the majority of the employees voting in a secret ballot representation vote in order to obtain bargaining rights in the federal jurisdiction. The EVRA also amended the Code to change the process by which a union's bargaining rights can be terminated.
In its election platform, the new Liberal Government proposed the repeal of the EVRA. On January 28, 2016, the new government introduced Bill C-4 which, among other things, would amend the Code to reverse the changes made by the EVRA. If Bill C-4 becomes law, unions will again be permitted to obtain certification if they can demonstrate majority support in a bargaining unit based on evidence of membership only. There will be no secret ballot vote in those circumstances. This concept is referred to as "card-based certification". The trend in Canadian labour relations for the last twenty years has been to move away from card-based certification to a mandatory certification vote. The EVRA was consistent with that trend. Bill C-4 is contrary to the trend.
The Bill C-4 amendments will also make it more difficult for employees to terminate a union's bargaining rights. Under the EVRA amendments to the Code, employees seeking termination of a union's bargaining rights need only demonstrate that at least 40 percent of the employees in the bargaining unit no longer wish to be represented by the union. In that event, the Board will hold a secret ballot vote to determine whether the majority of employees wish to terminate the union's bargaining rights. The Liberal Government's proposed amendments would restore the pre-EVRA situation so that employees seeking the termination of a union's bargaining rights must provide written evidence demonstrating support of a majority of the employees in the bargaining unit before a vote will be conducted.
The EVRA was opposed by many trade unions on the basis that it limited the ability of unions to organize employees. However, unions in many jurisdictions, including Ontario, have worked with mandatory vote certifications for many years. The benefit of a mandatory vote on a certification application is that it provides better evidence as to whether employees really want to be represented by a union. The problem with card-based certification is that employees may be subject to various forms of "persuasion" when they are asked to sign a membership card by a union organizer. Therefore, the membership evidence may not represent the true intentions of the employees. A secret ballot vote gives each employee an opportunity to express his/her view in the absence of any undue influence. Nonetheless, it appears that our new government has accepted the position that more union certifications, even if based on somewhat dubious evidence, are a good thing.
We will track the progress of Bill C-4.
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