Canada: Union Certification

Last Updated: September 27 2017
Article by Borden Ladner Gervais LLP

Most Read Contributor in Canada, December 2018

The Québec Labour Code ("Code") is primarily concerned with the recognition, certification, rights and obligations of unions. It is not significantly different from other Canadian jurisdictions' legislation and regulations with respect to the fundamental principles involved, such as the exclusive right of a certified union to represent an appropriate bargaining unit, the obligation for both employer and union to bargain diligently and in good faith and the submission to final and binding arbitration of any disagreement respecting the interpretation or application of a collective agreement.

What it takes to obtain certification

The Code sets out rules governing the union certification process. In order to obtain certification, a union must obtain the membership of more than 50% of the employees included in the bargaining unit. Where between 35% and 50% of the employees have signed a union membership card, a labour relations officer must hold a vote and the union will be certified if it obtains the support of an absolute majority (i.e. 50% plus one (1)) of the employees included in the bargaining unit. However, when signed membership cards of more than 50% of the targeted employees are filed by the union, no vote is required.

Contestation by the employer

One of the objectives of the Code is to render union certification easily accessible. As a result, no employer or person acting for an employer or an association of employers may seek to dominate, hinder or finance the formation or the activities of an association of employees in any manner, or participate therein.

Furthermore, the Code forbids the use of intimidation or threats to induce anyone to become, refrain from becoming or cease to be a member of an association of employees.

In addition, no employer or any person acting for an employer may refuse to employ any person because that person exercises a right arising from the Code. Freedom of association is further guaranteed by the Canadian Charter of Rights and Freedoms and the Québec Charter and is a constitutional right according to the Supreme Court of Canada.

Working conditions pending certification

Unless it obtains the written consent of the union, the employer may not modify the conditions of employment of his employees from the date of the filing of a petition for certification until the right to strike or to lock out is exercised.

Employer communication

Within the context of a union organization drive, an employer's freedom of expression is limited by the freedom of association held by its own employees, as recognized in the Code. When confronted with a union organization campaign, employers must be cautious and prudent in how they deal, both directly and indirectly, with their employees. Québec courts have outlined examples of unlawful employer conduct in this regard, which include:

  • threatening to shut down a business, should a union drive succeed;
  • asking the employees how they intend to vote;
  • making statements or actions that might show preference to a non-union employee;
  • declaring that the employer will not deal with a union if it is certified;
  • stating that unionization will take away benefits and privileges presently enjoyed by employees, or that the employer would have to proceed to lay-offs;
  • making anti-union statements;
  • during the course of negotiations with the union, sending emails to union members in view of presenting to them the employer's demands and thereby bypassing the union.

An employer's message to its employees must rely heavily on facts and must not be seen to be threatening or coercive in nature. Employers are entitled to tell employees that they are free to join or not to join a union, and that once certified the union will represent all employees in the bargaining unit. Upon being specifically asked by its employees, an employer may also inform its employees of the obligations they would assume once unionized. For example, dues, initial fees, loss of income when on strike, and exclusive representation by the union.

Employers also remain free to correct any misleading or untrue statements made by union organizers. However, employers must do so in accurate and cautious terms. Employers may also inform employees that union members might attempt to solicit them at their homes.

Strike, lockout and anti-scab rules

The right to strike or lockout is acquired 90 days after the receipt by the union or employer of the bargaining notice given by one party to the other for the purpose of concluding a collective agreement. No strike may be declared unless it has been authorized by secret ballot decided by the majority vote of the members of the certified association who exercise their right to vote. During a strike or lockout, the employer is prohibited from using the services of certain persons to perform the tasks of an employee who is a member of the union on strike or locked out.

During the term of a collective agreement, it is strictly prohibited to declare a strike or lockout. In the event of an illegal strike, the employer may file a petition for a back-to-work order before the Administrative Labour Tribunal to force the striking employees back to work. There are also severe penalties for declaring or instigating an illegal strike or lockout.

First collective agreement

In the event the union and the employer fail to conclude a first collective agreement, either party may ask for the intervention of a conciliator. When conciliation is unsuccessful, either party may then ask the Minister of Labour to submit the dispute to arbitration. The arbitrator has the power to determine the content of the first collective agreement (including wages). If a strike or lockout is in progress at that time, it must end upon the arbitrator informing the parties that he has deemed it necessary to determine the content of the collective agreement in order to settle the dispute. Conditions of employment must be maintained throughout the arbitration process from the time the arbitrator has deemed it necessary to determine the content of the agreement.

Term of a collective agreement

A collective agreement must be for a duration of no less than one (1) year. In the case of a first collective agreement, the term may not exceed three (3) years.

Prohibited practices

An employee who is dismissed, suspended or on whom the employer imposes any disciplinary sanction because he or she has exercised a right provided under the Code (e.g. signing a union membership card) is afforded special protection under the Code. The employee may file a complaint with the Administrative Labour Tribunal within 30 days of the sanction complained of, and, if applicable, seek reinstatement.

If it is established that the employee exercised a right under the Code, there is a legal presumption in the employee's favour that the sanction was imposed because of the exercise of that right, and the employer then has the burden to prove that the sanction was applied for another good and sufficient cause.

Successor rights

The alienation or operation by another of an undertaking, in whole or in part, does not invalidate any union certification, any collective agreement or any proceedings for the securing of certification or for the making or carrying out of a collective agreement, save for certain exceptions in the case of subcontracting, which is defined in the code as "the transfer of part of the operations of an undertaking where such transfer does not entail the transfer to the transferee, in addition to the functions or the right to operate, of most of the elements that characterize the part of the undertaking involved."

The employer may give the union a notice indicating the date on which it intends to alienate or transfer the operation of all or any part of his undertaking. Once the alienation or transfer is completed, the association may present a motion to the Administrative Labour Tribunal for it to decide if the new employer is bound by both the certification and the collective agreement and becomes a party to any proceedings relating thereto in the place and stead of the former employer.

It is also important to note that where the operation of part of an undertaking is transferred to a new employer (i.e. subcontracting), the collective agreement that has not expired on the effective date of the transfer is deemed to expire on the day the transfer becomes effective. The Administrative Labour Tribunal may, however, determine that the new employer remains bound by the certification and/or by the collective agreement until the date of its expiry, if it considers that the transfer was made for the purpose of dividing a bargaining unit or interfering with the power of representation of an association of employees.

Finally, following a transfer of operation of part of an undertaking, the new employer will not be bound by the certification or the collective agreement where a special agreement with the union specifies that the parties elect not to apply to the Administrative Labour Tribunal to request that successor rights apply.

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