Canada: Fair Workplaces, Better Jobs Act, 2017 (Bill 148) And Unionized Workplaces: Impact And Action

Summary

On November 22, 2017, the Ontario Fairer Workplaces, Better Jobs Act, 2017 (the "Act") passed into law, amending the Employment Standards Act, 2000 ("ESA"), the Labour Relations Act ("LRA") and the Occupational Health and Safety Act. The bill received royal assent on November 27, 2017.

This blog post highlights the key LRA amendments impacting unionized workplaces including, where case law is available, how the Ontario Labour Relations Board (the "Board") has applied the new legislation to date; we also provide an outline of employer action items in this regard.

Key Changes to the LRA

  • Applications for Employee Lists When Establishing Bargaining Rights. Where no union holds bargaining rights and no collective agreement is in effect, a union may now apply to the Board to have the employer provide a list of employees in a proposed bargaining unit. The employer may oppose the application by filing a notice of disagreement. There are several potential outcomes of such an application:

    1. Where the employer does not file a notice of disagreement, the Board will direct the employer to provide the employee list to the union where it is satisfied that 20% or more of the individuals in the proposed bargaining unit are members of the union.
    2. Where the employer does file a notice of disagreement, the Board will:

      • Dismiss the application where it determines that the description of the bargaining unit included in the application is not appropriate for collective bargaining based solely on the content of the application.
      • Direct the employer to provide the employee list to the union where (1) the description of the bargaining unit included in the application could be appropriate for collective bargaining based solely on the content of the application; and (2) 20% or more of the individuals in the bargaining unit appear to be members of the union, based on an estimated number of employees in the bargaining unit described in the application.
    Notably, the Board recently made clear that the estimate as to the number of employees in the bargaining unit and the description of the bargaining unit will involve a "less rigorous analysis" compared to the similar analysis involved in an application for certification, due to a need for expedition in a union's campaign to establish bargaining rights and because of the more significant consequences for the parties arising from the certification process.

    Where directed to be provided, the employee list will contain the names of each employee in the proposed bargaining unit, along with their phone numbers and personal email. The Board may also require provision of other information such as job titles, business addresses and other means of contact with the exception of home addresses. The employee lists are subject to certain confidentiality requirements and restrictions on use.

    The employee list provisions do not apply in the construction industry.

    Impact. It was anticipated that the ability of unions to apply for employee lists would become widely utilized as a means of facilitating organization through ease of communication with employees. However, we have seen fewer applications for employees lists than expected, perhaps because by filing an application for an employee list, a union alerts the employer to its activities early in the organizing process, providing more time for the employer to respond. We will continue to monitor the impact of this change.

  • Non-Discretionary Remedial Certification. The Board will now automatically certify a union where there has been a contravention of the LRA by an employer, and as a result either (i) the true wishes of the employees in the bargaining unit were not likely reflected in a representation vote OR (ii) a union was not able to demonstrate that 40% or more of the individuals in the bargaining unit proposed in the application for certification appeared to be members of the union at the time the application was filed.

    Impact.
    The possibility of automatic certification raises some concern as Bill 148 has removed the Board's discretionary power to determine the appropriate remedial order in the event than an employer is found to have engaged in anti-union conduct, including where a union does not have majority support. Previously, the Board had the discretion to choose between several remedies in the event of an employer contravention (including certification but only where no other remedy was sufficient to counter the effects of the contravention). These new powers underscore the need for an employer to be particularly cautious in the course of an organizing drive.
  • Protection from Discharge and Discipline. Unionized employees are now protected from being disciplined or discharged without just cause in the following circumstances: (1) where a union has been certified as the bargaining agent but a collective agreement has not yet been negotiated and (2) during a legal strike or lockout.

    Impact.
    These new protections raise several concerns for employers. Notably, once a collective agreement is in place, it will typically set out the grievance and arbitration procedures applicable in the event of disputes over employee discipline. It is also common for a collective agreement to prohibit termination of employment except in cases of just cause. The new provisions therefore extend protections typically available once a collective agreement is in place to the period before one is established, but do not put in place a grievance procedure or establish who will act as arbitrator in the event of any disputes. This issue creates a lack of clarity as to how disputes regarding discipline and discharge when a collective agreement is not in play will be dealt with and resolved. It is also unclear from the legislation whether employers will be permitted to engage in progressive discipline where employee misconduct occurred prior to certification or a strike/lockout. We are continuing to actively monitor the Board's case law for clarity on these issues.
  • Remote voting. The Board can now order that representation votes be held electronically or by telephone and can issue directions relating to the voting process or arrangements.
  • Card Based Certification Process Available for Certain Industries. The new legislation includes an elective card based certification process for "specified industry employers" including employers in the building services, home care and community services, and the temporary help agency industries. There is a possibility that the category of "specified industry employers" will be expanded in the future by regulation.

    The certification application must contain evidence demonstrating that the union has the support of 40% or more of the employees in the bargaining unit, in the absence of which the application will be dismissed. If the Board is satisfied that the union has 40% or more support, but not more than 55% support of the employees in the bargaining unit, it will direct that a representation vote be taken. If the union demonstrates that it has 55% or more support, the Board will have the discretion, based only on the application and response, to certify the union or direct that a representation vote be taken.

    Impact.
    Card-based certification has typically been viewed as easing certification by providing a more simplified, expeditious process as compared to the secret ballot system, which is the default for non-construction employers under the LRA. Prior to the passage of Bill 148, we questioned how the Board would exercise its discretion where a union has evidence of support of 55% or more of the employees in the bargaining unit. In the case law to date, the Board has in these situations ordered certification where nothing raised in the application or response caused it to direct otherwise and there were no employee objections. We have yet to receive the benefit of a case in which card based certification was not ordered in these circumstances and are continuing to monitor for new developments.
  • Educational Support. Following certification or voluntary recognition of a union, the parties may now request educational support from the Ministry of Labour in the practice of labour relations and collective bargaining.
  • Ability to Review and Consolidate Bargaining Units. Where existing bargaining units are no longer appropriate for collective bargaining, following certification but before a collective agreement is in place in respect of a new unit, the Board may review the structure of bargaining units and make orders in respect of the structure and consolidation of the bargaining units, further to a unilateral application by a union or employer. Additionally, both an employer and union may now, at any time, make changes to the structure of the bargaining unit by agreement and with consent of the Board. These provisions do not apply to employers in the construction industry.

    Impact.
    The Board's ability to review and consolidate smaller, fragmented bargaining units (together or into larger units) may provide an opportunity for unions to increase their bargaining power and put in place structures that are more efficient and effective but which are not necessarily advantageous for the employer. Whereas previously, employers and unions would generally have had to agree to such changes to bargaining structures (and can still do so), the Board now has the power to weigh in where there is disagreement between the parties.
  • Availability of First Collective Agreement Mediation and Arbitration. Either party may apply to the Ministry of Labour for the appointment of a first collective agreement mediator where the parties are unable to effect a first collective agreement and the Ministry has issued a no board report. The mediator will be responsible for meeting with the parties and assisting them in effecting a collective agreement. The parties will also have the ability to request educational support from the first collective agreement mediator. If the first collective agreement mediation does not result in the parties entering into a collective agreement after 45 days, both parties will have the further ability to apply to the Board to direct a settlement by mediation-arbitration. Notably, the Board will not order mediation-arbitration where further mediation may be appropriate, where the applicant has bargained in bad faith or where it appears to the Board that the applicant has taken an uncompromising bargaining position without reasonable justification. Additionally, any decertification or displacement applications will be suspended while the parties are in first contract mediation or mediation-arbitration.

    Impact.
    We are continuing to evaluate whether the introduction of a more intensive mediation system will result in more effective collective bargaining or in unnecessarily protracted negotiations and delay in reaching arbitration.
  • Expanded Successor Rights for Building Service Providers. The LRA sets out new successor rights in respect of building service providers including building cleaning services, food services and security services. A sale of a business will now be deemed to have occurred where an employer providing building services ceases to provide those services and substantially similar services are provided at the same premises under the direction of another employer. A deemed "sale of a business" under the new legislation will result in a transfer of bargaining rights from the original building service provider to its successor. In effect, a building service provider that assumes a contract from its predecessor (for example, because the contract is taken over or lost to another provider following tender) will also assume the collective agreement to which its predecessor was subject. These new successor rights may be extended by regulation to service providers that directly or indirectly receive public funds.

    Impact.
    These provisions are likely to give to building service providers seeking to compete for new work pause as they will need to consider the labour relations consequences of their business development strategies.
  • Reinstatement. Employees are no longer subject to a time limit with respect to the period within which they can apply to be reinstated after a lawful strike or lock-out (previously, employees had 6 months to make such an application).
  • Increased Fines. The maximum fines provided for under the LRA are increased from $2,000 to $5,000 for individuals and from $25,000 to $100,000 for corporations, unions, and councils of trade unions or employers' organizations. The new maximum fines will be available in respect of events or conduct that occurred on or after January 1, 2018.

Reminder re: ESA Changes

  • All employers, including employers in unionized environments, are required to comply with Bill 148's ESA amendments in accordance with the time periods set out in the legislation ( summarized here). In this regard, it should be noted that only the new equal pay for equal work and scheduling rules are subject to a transition period. Generally in both cases, in the event of a conflict between a CBA and either of these provisions, the CBA will prevail until the earlier of the date the CBA expires or January 1, 2020.

    Impact.
    Existing collective bargaining agreements may not be compliant with the ESA as a result of the Bill 148 amendments.

Action

  • An employer's labour relations strategy in dealing with a workforce that is in the midst of an organizing campaign should be considered in light of the new LRA provisions affecting certification. For example, the risk of automatic certification in the event of a finding of employer unfair labour practices underscores the need for caution during this process. Employers should consult with counsel and consider management training during these time periods to ensure that their practices or conduct do not create heightened risks.
  • Employer rights with respect to discipline, discharge and reinstatement are also affected by Bill 148. Employers should ensure that management is familiar with the new protections from discharge and discipline during the period between certification and formalization of a collective agreement, and during a strike or lockout. Policies pertaining to discipline, discharge and reinstatement should also be reviewed and revised, if necessary, to ensure legislative compliance.
  • An employer's labour relations strategy during the collective bargaining process may also need to be reconsidered due to the availability of first contract mediation and mediation-arbitration. Employers should familiarize themselves with these new processes and consult with legal counsel to determine how and whether they can be used to their advantage.
  • Building service providers should exercise caution when responding to tenders for work at buildings where employees are unionized and consider the labour relations implications of same.
  • To avoid liability due to non-compliance with the ESA, employers in unionized environments should consider whether their CBAs are compliant with the Bill 148 amendments and if not, be prepared to amend same and/or respond to union challenges in this regard.
  • Employers in unionized environments are advised to ensure ESA compliance in respect of the new equal pay for equal work rules well ahead of the applicable compliance deadlines by undertaking a documented job classification analysis and ensuring that any wage differentials for employees performing substantially the same roles are justified in accordance with the legislation.

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.

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