New rules on union certification for federally regulated
employers will take effect June 16, 2015, following the royal
assent of Bill C-525.
The legislative amendment substantially alters the process for
unions to obtain certification in relation to federally regulated
employers. In particular, a union's ability to obtain
certification automatically without a vote has been eliminated
under the new rules. Unions will now be required to win a vote
before being certified to represent workers.
Under the outgoing regime, union certification can be awarded
under Part II of the Canada Labour Code (the
Code) where a union presents evidence that more than 50%
of employees in a proposed bargaining unit have signed union
"cards" and paid for a union membership. Where such
evidence could be provided, certification would be automatically
granted the union without the need for a secret ballot vote. Only
if evidence of union membership is provided of between 35% and 50%
of the proposed bargaining unit would a vote be held.
Many other jurisdictions in Canada (including Ontario, British
Columbia, Alberta, Nova Scotia and Saskatchewan) hold a secret
ballot vote even where more than 50% support is provided. The
voting process provides time for employers (and unions) to
communicate factual information and educate employees about the
meaning of unionization. Automatic certification (certification
without the opportunity for a vote) denies employers the
opportunity to communicate with bargaining unit employees about
their decision before votes are cast.
Bill C-525 has eliminated the automatic card-based certification
provisions of the Code. Now, all certifications will
involve a secret ballot vote. Such a vote will be triggered where
the union adduces evidence that 40% or more of the bargaining unit
are members of the union. Where that threshold is met,
certification will be issued if a majority vote in favour of the
In addition to this significant change, Bill C-525 has lowered
the threshold for employees in a certified bargaining unit to
trigger a vote on whether they wish to remove their union,
otherwise known as de-certification or termination of bargaining
rights. Under the outgoing regime, a secret ballot vote on
de-certification would be triggered where evidence could be shown
that more than 50% of bargaining unit employees no longer wished to
have the union represent them.
Under the amended Code, the threshold has been reduced
to 40%. If that threshold is met, then a secret ballot will be held
and the union can be de-certified if a majority of voters vote
against the union. For the vote to be valid, at least 35% of
eligible voters must vote.
These changes will be important to federally regulated
employers, such as those in the inter-provincial transport,
shipping, airline and financial sectors. Employers affected by
these changes will have a greater opportunity to voice their views
in any certification process brought under the Code. It
will be important for employers to be ready to take advantage of
these opportunities with campaign strategies where such votes may
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