Canada: B.C. Labour Code Review 2018: A Summary Of Recommended Changes And Next Steps

On October 25, 2018, the Government of BC released the long anticipated Part 3 Report concerning proposed changes to the Labour Relations Code of BC. A three person panel was appointed in February of 2018 to conduct a public consultation and recommend amendments to the Code.

The Report synthesizes submissions made by stakeholders from across the labour spectrum and attempts to balance the interests of unions and employers. Some of the proposed changes are welcome, but many represent a shift in favour of the labour movement in British Columbia. Interested parties have until November 30, 2018, to provide feedback on the report.

The full Report can be viewed here. The significant proposed changes are summarized below.

  • Restriction on Employer Free Speech. (ss. 6(1) and 8). The Report recommends a return to the employer free speech framework as it was prior to 2002 amendments to the Code. Employers would be limited to "statements of fact or opinion reasonably held" rather than the current, broader standard, which protects all views provided those views do not amount to "intimidation or coercion". The Report also recommends removing protected employer speech as an exception to what would otherwise be an unfair labour practice.
  • Easier remedial certifications. Remedial (automatic) certifications are often sought by unions as a remedy for unfair labour practices, but are rarely awarded by the Board. The Report recommends that the threshold for a remedial certification be lowered. Unions would no longer be required to establish that the union "would likely have obtained requisite support" but for the unfair labour practice. Instead, a remedial certification would be available where the Board thought it "appropriate and equitable".
  • Maintain the secret ballot. While the three member panel was divided, a majority recommended that the current secret ballot framework be maintained. One panel member dissented, recommending a return to card based certification. Given the Provincial Government's views on card based certification, the future of the secret ballot in B.C. is uncertain.
  • Changes to certification timelines. Consistent with recent messaging from the Labour Relations Board, the Report recommends shortening the time for a certification vote from 10 days to 5 days, which would provide less time for employers to communicate with employees in advance of a vote. Currently, union membership cards are valid for 90 days. The Report would extend that to 6 months. Both timeline changes benefit unions in the course of an organising drive.
  • Changes to union raids. The Report recommends significant changes to the rules that apply when one union attempts to raid another. Unions will only be able to raid in the 7th and 8th month of the 3rd year of a collective agreement, and every year thereafter until expiry of the agreement in the case of longer agreements. Raids in the construction industry would be limited to July and August.
  • Significant changes to union successorships. As it stands now, a successor union inherits the existing collective agreement. The Report recommends that, where a change in union representation occurs, and where there are more than two years remaining in the existing collective agreement, the successor union may give 3 months' notice to the employer, and apply to the Board to renegotiate the existing agreement. It remains to be seen when the Board would grant such an application, but the proposed change could cause problems for many industries, and for the construction industry in particular, where the terms of project labour agreements are tightly tied to investment and spending decisions.
  • Significant changes to employer successorships. Successorship provisions would be broadened to include re-tendering of contracts in certain "precarious" industries, including "building cleaning, security, or bus transportation" as well as various support services in the health sector. The Panel rejected union requests for automatic certification with the transfer of forest licenses or tenures, although that particular issue may be subject to further review.
  • Significant changes to section 54. Presently, employers are required to give 60 days' notice to a union in advance of any change that will impact a significant number of employees in the bargaining unit (subject to other nuances outside the scope of this bulletin). The parties are then required to attempt to enter into an adjustment plan, although no adjustment plan is required. If adopted, the proposed changes would allow either party to refer the adjustment plan issue to a mediator of the Board, who would have investigative powers and the authority to issue non-binding recommendations.
  • Changes to first contract mediation and arbitration. Presently a strike vote is required before a union can apply to the Board for mediation (and potentially arbitration) of a first collective agreement. The Report proposes removing that requirement. In the case of remedial certification, meditators would be permitted to take into account the conduct of an employer which led to remedial certification.
  • Education no longer an essential service. The Report recommends removing the education sector as an essential service. In the view of the Panel, including all education as an essential service is overbroad. If adopted, the public should expect more labour unrest involving teachers, especially teachers of younger students whose services the Report implicitly views as being further from the core of a true essential service.
  • Changes to expedited arbitration. The Report recommends interesting and thoughtful changes to the expedited arbitration provisions of the Code (Section 104). The proposed process is arguably more realistic and has been designed to increase the efficiency and expediency of the expedited arbitration process.
  • Labour Relations Code housekeeping. The Report includes a number of changes that are in the nature of housekeeping. Those changes include updating the definition of picketing to match what the Supreme Court of Canada has already said, increasing the ability of the Board to levy fines for failing to comply with a Board order, and increasing the Board's funding. Parties will be obligated to file collective agreements with the Board.

It remains to be seen to what extent the Provincial Government will adopt the foregoing changes. While many of the proposed changes are incremental, on balance the Report's recommended changes represent a shift in favour of unions.

We will continue to monitor this process as it unfolds. We encourage all impacted stakeholders to read the report in full, and to consider making submissions before the November 30, 2018, deadline for doing so.

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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Mike Hamata
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