In Nova Scotia, an employer in the construction industry may
become certified by a union if the Labour Board is satisfied that
the applicant union "has as members in good standing more than
fifty percent of the employees in the appropriate unit."
Accordingly, the definition of the bargaining unit is a significant
issue in construction industry certifications because the employees
in the unit materially impact whether the certification application
For many years, the Nova Scotia Labour Board has used the
"snapshot" approach to construction industry union
certifications. Under that approach, only employees working in the
craft on the date of the certification application are included in
the bargaining unit. This means that workers, even if they are
long-term employees, who are absent on the date of the application
for any reason (including vacation or sickness) are not counted in
the bargaining unit.
Last year, a decision from the Nova Scotia Supreme Court called
this approach into question. In CanMar Contracting Ltd v.
Labourers International Union of North America, Local 615,
2015 NSSC 89, the Court concluded that the Board's use of the
"snapshot" approach to certification was unreasonable and
procedurally unfair. It found that the Board erred in failing to
consider whether two employees who were absent from the workplace
on the date of the application had a community of interest with the
other employees, and that it was unreasonable to exclude them from
the bargaining unit simply because they were not at work on the
date of application.
This decision represented a significant shift in Nova Scotia as
the Labour Board's use of the "snapshot" approach had
been longstanding and well established. On May 31, the Court of
Appeal overturned the Supreme Court decision, effectively
reinstating the Labour Board's snapshot approach (2016 NSCA
The Court of Appeal held that the Board's use of the
snapshot approach was reasonable and it was not procedurally
unfair. The Court found that, in the construction industry, the
community of interest was embodied by the craft. As a result, the
issue in construction industry certifications is whether the
employee works in the craft of the proposed unit and not the
definition of community of interest. The Court noted that an
employee's role on a site (and their connection to a craft) may
change from day-to-day, and the date of application rule brings
certainty in these dynamic circumstances. The Court held that the
date of application rule is a permissible policy to effectuate the
objectives of the Trade Union Act, and emphasized that it
is the role of the Board (and not the Court) to make these types of
The Court of Appeal's decision returns Nova Scotia to the
former status quo and clarifies that it is permissible for the
Board to define the bargaining unit based on those working on site
in the craft on the date of application.
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