On December 16, 2014, the Act to amend the Canada Labour
Code ("Code"), the Parliamentary Employment and
Staff Relations Act and the Public Sector Labour Relations
Act (certification and revocation – bargaining agent),
also referred to as the "Employees' Voting Rights
Act" received Royal Assent and became law. This new
legislation significantly changes the rules for certifying and
decertifying a union for federally regulated employers. Those
changes essentially make it easier to decertify a union and harder
to certify one.
The amendments to certification and decertification requirements
bring the Code in line with the labour legislation in several
provincial jurisdictions, including Ontario. Now, a lower
threshold of employee support is required to trigger a
decertification vote. Plus, "card check"
certification (where a union could be certified without a vote) is
eliminated. Now, a vote must always be held.
Under the previous regime, any employee who claimed to represent
a majority of employees in a bargaining unit, and who could provide
evidence to that effect, could apply to the Canada Industrial
Relations Board (the "Board") for an order revoking the
certification of the union. This application usually triggered a
secret ballot representation vote of the bargaining unit
The new rules reduce the threshold of employee support required
to trigger a vote on decertification from a majority to 40% and
eliminates the discretion of the Board to satisfy itself of the
bargaining unit's wishes by means other than a vote.
Under the old regime, if a union could demonstrate that it had
the support of a majority of the employees in the proposed
bargaining unit by way of having each of those employees both sign
an application for membership in the union (often referred to as a
union "card") and pay the union at least $5.00, the union
would be automatically certified without a representation vote.
Alternatively, if a union could demonstrate that it had the
support of more than 35% but less than 50% of the employees in the
bargaining unit, it could apply for certification but had to obtain
a majority of a secret ballot representation vote in order to be
Now, it is compulsory for the Board to order a vote in every
case of an application for certification, regardless of whether the
union can demonstrate that it already has the support of a majority
of the employees in the proposed bargaining unit.
This completely eliminates the opportunity for a union to
be certified without a vote.
The threshold for evidence of union support required to trigger
a representation vote is also raised from 35% to 40%.
Takeaways for Federally Regulated Employers
Both unionized and non-unionized employers should take into
account the following effects of the Employees' Voting
The reduced threshold for triggering a vote on decertification
will make it easier for an employee to garner
sufficient support to make an application for decertification of a
union. To trigger a vote, the application to the Board
must contain a separate and confidential statement signed by
employees constituting 40% or more of the bargaining unit, which
states that they do not wish to be represented by the bargaining
agent and that the applicant is authorized to act on their
behalf. Employers need to be very cautious that there is no
appearance of interference in the process or else they could be
subject to an unfair labour practice complaint.
Employers can expect that union organizing strategies will
adapt and change to take into account the fact that a
representation vote will take place in every application
for certification. Given that a valid vote must
contain at least 35% of the proposed bargaining unit, "getting
out the vote" strategies will be important.
Supreme Court of Canada to Weigh In
In 2008, The Trade Union Amendment Act, 2008, S.S.
2008, c. 26 and c. 27 was proclaimed in Saskatchewan. In a
manner similar to the Employees' Voting Rights Act,
the legislation eliminated card check certification and increased
the threshold support required to trigger a representation vote for
certification to 45% of the employees in the proposed bargaining
unit. It also lowered the threshold of evidence of support
required to trigger a secret ballot vote respecting decertification
from a majority to 45% of the bargaining unit employees.
These amendments, along with others, have been challenged by the
labour movement in Saskatchewan, which alleges that the legislation
is unconstitutional because it unjustifiably infringes
employees' freedom of association as guaranteed by Section 2(d)
of the Canadian Charter of Rights and Freedoms. The
Union has been unsuccessful in the lower courts. Upon its
release, we will be sure to provide you with an
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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