Canada: Alberta Employers May Face Increased Unionization And Mandated Collective Agreements

On March 13, 2017, the Alberta government announced that it intends to change provincial employment and labour laws to reflect "modern" times. As part of this "modernization", the Minister of Labour announced a consultation and review of Alberta's Labour Relations Code. The consultation and review are focused and we expect legislation to be introduced within the current session of the Alberta Legislature.1

The changes contemplated by the Alberta government include:

  1. "processes used to let employees exercise their constitutional right to choose...union representation, in a timely and effective way"; and
  2. "options available for dispute resolutions in intractable disputes...[including] unresolved first contracts".

These two references clearly indicate the province is considering introducing card-based union certification (Card Certification) and binding first contract arbitration (FCA) for provincially-regulated workplaces in Alberta. NDP governments in other provinces have implemented (or re-implemented) both policies upon being elected throughout Canada. These same policies have often been rescinded or modified upon the election of a government from a different political party.

Card Certification

Card Certification allows a union to obtain automatic certification with the Labour Relations Board upon a minimum percentage of union cards being signed by employees in a proposed bargaining unit (usually a subset of the total number of employees employed by the employer who share common interests). The threshold for automatic certification can vary, but historically ranges between 55 percent and 65 percent of employees in the proposed bargaining unit. Recently, the Federal Liberal government implemented Card Certification with a 50 percent threshold for federally regulated employees in Canada.

FCA

FCA commits an employer and a union that is certified to represent a group of employees to an arbitration process overseen by the Labour Relations Board, that will lead to a first collective agreement being imposed, should negotiations following certification be unsuccessful. This means that employers and unions will not have recourse to a lock-out or strike if there is an impasse in first contract negotiations. In other words, employers will have some form of a collective agreement imposed if necessary.

Potential Impact on Alberta Employers

If Card Certification and FCA are implemented, it will significantly change the labour relations landscape in Alberta. Currently, all provinces west of Quebec do not have Card Certification and require a mandatory vote among employees in the proposed bargaining unit prior to certification. Alberta would be the outlier in these provinces on this point.

Card Certification has been the subject of much labour relations and statistical analysis. For example, it has been argued that Card Certification may inflate the true level of support for a union among employees.2 When Ontario removed Card Certification, unions who applied for certification were 21.3 percent less likely to succeed under the new system (which required a vote among employees).3 Another study found that in a survey of 160 certification votes (in jurisdictions where a vote is required), support for unionization dropped by more than 5 percent from initial support levels prior to the vote. In 81 other certification votes, support for unionization dropped by more than 15 percent from the initial level of support.4 In our view, the ability of employers to communicate with their employees between the application for certification and the certification vote is likely to have played a role in altering these levels of support, in many cases. Other studies have also shown that certification success rates are lower without Card Certification. In one study, the general impact of requiring mandatory votes as opposed to Card Certification was found to lower the likelihood of a successful certification by 20 percent for private sector employees in British Columbia and Ontario. In both provinces, certification success rates were 60 to 70 percent without Card Certification, and around 90 percent after Card Certification was introduced.5

It is not just certification success rates that increase under Card Certification, but also the number of unions attempting to be certified. In Ontario's private sector, twice as many certification applications were made when Card Certification was in place. In British Columbia's private sector, 50 percent more attempts at certification occurred under Card Certification.6

The change to FCA would mean that in addition to facing increased rates of union certification, provincially regulated employers in Alberta will be unable to avoid a first collective agreement being imposed on them, if they are unable to negotiate an acceptable agreement with the newly certified union.

Key Takeaways for Employers

Employers in Alberta who are concerned about the possibility of their workforce becoming unionized, and a collective agreement being imposed, should monitor these developments carefully. Although Card Certification and FCA may be rescinded if a different party is elected in the next provincial election, that will not enable employers who become certified in the meantime to avoid unionization or a collective agreement. Employers in these circumstances will be required to deal in good faith with the union and engage in collective bargaining. Employers should seek advice on how to protect their business interests while at the same time meeting their obligation not to engage in unfair labour practices under the Alberta Labour Relations Code.

Footnotes

1 The Minister's mandate letter referenced that the review should not be "Full-Scale" as that would preclude introducing legislation "in the current session."

2 Chris Riddell, "Using Social Science Research Methods to Evaluate the Efficacy of Union Certification Procedures", Canadian Labour and Employment Law Journal, Vol. 12 at p. 315.

3 Sara Slinn, "An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification", Canadian Labour and Employment Law Journal, Vol. 11 at p. 280.

4 Colin Craig, Policy Brief: A Closer Look at Secret Ballot Union Certification Votes (2016). https://www.manningcentre.ca/sites/default/files/Policy%20Brief-A%20Closer%20Look%20at%20Secret%20Ballot%20Union%20Certification%20Votes.pdf (accessed 28 March 2017).

5 Michele Campolieti, Chris Riddell, and Sara Slinn, "Labour Law Reform and the Role of Delay in Union Organizing: Empirical Evidence from Canada", Industrial and Labour Relations Review, Vol 61, No. 1 (Oct 2007) at pp. 33-34.

6 Ibid at p. 34.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions