The Employees' Voting Rights Act (the
"EVRA") significantly changes the way in which unions
gain and lose bargaining rights in the federal sector in Canada.
Federal labour relations law applies to a variety of sectors
including the federal public sector, banking, inter-provincial and
international transportation, broadcasting, telecommunications and
aeronautics. The EVRA will become effective on June 16, 2015.
Traditionally, a trade union in Canada could become certified by
a labour relations tribunal by providing written evidence that it
represented a majority of employees in a bargaining unit (i.e. a
group of employees found to be appropriate for collective
bargaining). The written evidence often took the form of membership
cards. In some jurisdictions, more than a bare majority was
required. Secret ballot votes were required in certain cases where
the union could not demonstrate sufficient support on the basis of
membership evidence alone. Votes were relatively rare. This
traditional system is referred to as "card based".
While this system was in place in many Canadian jurisdictions
for many years, it was frequently criticized by employers and other
analysts on the basis that it permitted a union to become certified
through exercising undue influence on employees. These critics of
the card based system advocated that a union should have to prove
majority support through secret ballot representation votes. In the
late 1990s, Ontario adopted a mandatory vote system. Today, six
Canadian provinces require secret ballot votes as their primary
means to determine whether or not a union should be certified.
The Canada Labour Code (the "Code") is the
primary legislation governing labour relations in the federal
sector. Currently, the Code permits a union to be certified if it
can demonstrate majority support based on membership evidence only.
If the union can demonstrate that it is supported by at least 35
percent of the employees in the proposed bargaining unit, but less
than a majority, the Board will order a secret ballot
representation vote. Secret ballot votes are currently relatively
rare in federal certification applications because unions rarely
apply for certification unless they have a majority of the
employees in the unit signed up as members.
The EVRA amends the Code and will abolish the card based system
in the federal sector. The EVRA also raises the threshold for
support required to obtain a vote from 35 to 40 percent. If a union
can demonstrate that at least 40 percent of the employees in the
proposed bargaining unit wish to have a union represent them as
their bargaining agent, the Canada Industrial Relations Board, the
tribunal which administers labour relations under the Code, will
conduct a secret vote. The union will only be certified if the
majority of employees who cast a ballot vote in favour of the
The EVRA also amends the process by which a union can lose its
bargaining rights. Under the current provisions of the Code,
employees seeking the revocation of a union's bargaining rights
must submit evidence that a majority of the employees in the
bargaining unit wish to have the certification of the union
revoked. This can only be done at certain designated times. The
EVRA reduces the level of support required to file a termination
application from a majority to 40 percent. Under the current
version of the Code, a secret ballot vote is not necessarily
required in a termination application but the board's practice
is generally to hold one. The EVRA makes a vote mandatory if the 40
percent threshold is satisfied.
The Parliamentary Employment and Staff Relations Act
and the Public Service Labour Relations Act govern labour
relations in the federal public service. Both statutes are amended
by the EVRA so that certification may be granted and revoked based
on a similar process to that found in the amended Code.
It is difficult to predict the EVRA's effect on the
percentage of the federal workforce which is unionized, as that
statistic is affected by a number of factors. However, employers
and advocates of individual employee rights should view the EVRA as
enhancing the rights of individual employees under federal labour
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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