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
We will track the progress of Bill C-4.
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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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