On June 16, 2015, the Employees' Voting Rights Act
(the "EVRA") comes into force. With it, federally
regulated employees will be given the right to a secret ballot vote
as part of the union certification process. The threshold of
support required by employees wanting to obtain a vote on
decertification will also be lowered.
The EVRA amends various provisions of the Canada Labour
Code, the Parliamentary Employment and Staff Relations
Act, and the Public Labour Relations Act. It makes
certification and decertification of bargaining agents in federally
regulated workplaces subject to a mandatory secret ballot vote.
Currently, the "card check" system governs
certification of unions federally. Union membership cards are taken
as evidence of employee support for certification. A trade union
that can show over 50% of employees have signed membership cards is
deemed to have sufficient support: no representation vote is
required, and certification is automatic.
New Rules Regarding Automatic Certification
After June 16, trade unions will still need to show sufficient
employee support using membership cards to get a vote. However,
automatic certification will no longer be possible, except in cases
under section 99.1 of the Canada Labour Code where an
employer is found to have committed an extreme unfair labour
practice. A representation vote will be ordered where at least 40%
of employees have signed membership cards to show they support the
trade union. This is an increase from the current Canada Labour
Code provisions that allow for a secret ballot vote where a
trade union has 35% of employee support.
The EVRA also lowers the threshold of support required to
trigger decertification to 40% of employees and makes a
representation vote by secret ballot mandatory to determine whether
the majority of votes cast will support decertification of the
union. The current level required to trigger a decertification vote
Section 99.1 of the Code Stays the Same
No amendments were made to s. 99.1 of the Canada Labour
Code. This section gives the Canada Industrial Relations Board
the authority to remedially certify a trade union despite lack of
majority support. The Board will order remedial certification where
it believes that a majority of the employees would have voted in
favour of the Union, but for an unfair labour practice committed by
An example of where remedial certification may occur is if the
Union had 99% of the employees sign cards, but then the employer
told all employees they would be fired and the business would close
if they voted for the Union. Even if a majority of employees did
vote against the Union, the Board might find that was because of
the employer's threat to close and may remedially certify the
Summary of Changes
The table below summarizes the upcoming changes:
Recommendations For Federally-Regulated Employers
If you are a federal undertaking, the EVRA will make it
critically important that you actively participate in any
certification campaign. Every vote is important.
In our experience, employees who are ambivalent or do not want a
trade union often will not vote — apathy is easier than
participation. As an employer, we recommend the message you send to
employees is that whether or not to join a trade union is too
important a decision to allow others to make it for you.
The secret ballot also gives a federally regulated employer the
opportunity to campaign and communicate to its employees in advance
of a vote. This is a singular opportunity that may not have
previously existed for an employer whose employees worked with a
union on a surreptitious member card sign up.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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