Ontario is one of a few Canadian jurisdictions that does not give its labour board the general authority to review, consolidate and otherwise amend bargaining units. In the Changing Workplaces Review Final Report, the special advisors recommended giving the Ontario Labour Relations Board ("Board") the power to modify bargaining unit structures, if the Board is satisfied that the bargaining unit or units are no longer appropriate for collective bargaining. The special advisors further recommended that, in sectors or industries where employees have been historically under-represented by unions, the Board be given the power to consolidate existing and/or newly certified bargaining units involving the same employer and the same union in order to contribute to the development of effective collective bargaining relationships.

The original version of The Fair Workplaces, Better Jobs, Act ("Bill 148") included revisions to the Labour Relations Act, 1995 ("LRA") that would authorize the Board to review and consolidate newly certified bargaining units under a single employer, where those units are represented by the same bargaining agent. It also gave the Board authority to review and amend the structure of bargaining units within a single employer, if the existing units were no longer appropriate for collective bargaining.

That version of Bill 148 passed First Reading on June 1st and, in an expedited process, was referred to the Standing Committee on Finance and Economic Affairs the same day. Throughout the summer, the Committee held public hearings in 10 Ontario cities, and also considered written submissions from a variety of stakeholders.

When the MPPs returned from their summer break on September 11th, the Committee presented Bill 148 with amendments to several of the LRA proposals, including those addressing bargaining unit review. Surprisingly, the Committee deleted in its entirety the new provision that would have authorized the Board, upon receipt of an application from either the employer or the union, to review and amend the structure of bargaining units if the Board was satisfied that the units were no longer appropriate for collective bargaining.

However, the original Bill 148 provision permitting the Board to review and consolidate newly certified bargaining units survived the Committee's chopping block without revision. Pursuant to that provision, the Board may review the structure of newly certified bargaining units is all of the following conditions are met:

  1. The employer, union or council of trade unions, as the case may be, applies to the Board requesting the review when the application for certification is made, or within 3 months after the date of certification;
  2. A collective agreement has not yet been entered into in respect of the bargaining unit; and
  3. The same union or council of trade unions that is certified as the bargaining agent for the bargaining unit already represents employees of the employer in another bargaining unit at the same or a different location.

In making a determination in an application for review, the Board must take into consideration all relevant factors, including whether consolidating the bargaining units would contribute to the development of an effective collective bargaining relationship, as well as collective bargaining in the industry.

If enacted in its present form, this new provision will not apply to the construction industry.

Bill 148, as amended, was ordered for Second Reading on September 11th and is still being debated in the Legislative Assembly. We expect that it will pass Second and Third Reading and receive Royal Assent over the next few weeks, particularly since many of its amendments to the Employment Standards Act, 2000 are intended to come into effect by January 1, 2018. Note, however, that the proposed changes to the LRA, if enacted, will not come into effect until 6 months after The Fair Workplaces, Better Jobs Act, 2017 comes into force.

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