Canada: Changes To B.C. Labour Relations Code Proposed In Independent Review Panel Report

In February 2018, the British Columbia Minister of Labour, the Honourable Harry Bains, appointed an independent Labour Relations Code Review Panel (the "Panel"), which was afforded a broad mandate to review the B.C. Labour Relations Code, RSBC 1996, c. 244 (the "Code") and provide recommendations for any amendments.

In its consultation process, the Panel interviewed stakeholders and individuals at 10 public meetings across B.C., and met with groups including the BC Federation of Labour, the BC Business Council, the Arbitrators Association of B.C., the Labour Relations Board (the "Board") and the Labour Subsection of the Canadian Bar Association.

Entitled Recommendations for Amendments to the Labour Relations Code (the "Report"), the Panel's Report was publicly released on October 25, 2018.  It contains 29 recommendations. None of the proposed amendments would result in sea changes to the Code, but employers should be particularly aware of the following recommendations:

  • Relaxing the evidentiary burden to obtain remedial certification: The Panel concluded that remedial certification was the most effective deterrent and remedy for unfair labour practices, and recommended that the Board have wider discretion to order certification of a union where an employer committed unfair labour practices which interfered with a union drive, without requiring evidence that the requisite support would have been obtained if not for the unfair labour practice. If this recommendation is adopted, the Board is likely to see an increase in unfair labour practice complaints, as unions may view the relaxed standard as an alternate route to attaining certification.
  • Retaining secret ballot voting: Employers will be relieved that the majority of the Panel concluded that given the importance of voting in a democratic society, the current secret ballot vote should be retained as the second step in the union certification process. The majority concluded that under a "card check" system, which does not include a follow-up vote after the union has obtained a certain number of signed membership cards, employees would be afforded insufficient protection from intimidation and pressure from pro-union individuals, and that a secret ballot vote is most consistent with democratic norms. One member of the Panel dissented, recommending that B.C. return to a card-check process.
  • Shortened timeline for certification votes: The Panel recommended reducing the time period between an application for union certification and the secret ballot vote from 10 days to 5 days (exclusive of holidays and weekends).
  • Extension of membership card validity: The Panel recommended extending the validity of union membership cards from 90 days to six months, citing concerns that the 90-day validity period unduly inhibits union organizing efforts, particularly beyond single sites.
  • Extending successorship protection: Finding that contract re-tendering has caused an erosion of earnings, job security and benefits, the Panel recommended extending successorship protection to the re-tendering of contracts for specified services, including: building cleaning, security or bus transportation, and food, housekeeping, security, care aides, long term or seniors care in the health sector. The Panel recommended that since many contracts may be terminated on relatively short notice, these changes should be made retroactive to August 31, 2018.
  • Extension of the statutory freeze period: Under the current Code, employers are subject to a 4-month statutory freeze period after certification, during which pay rates and other terms and conditions of employment may not be altered unless, broadly speaking, the changes represent "business as usual" (for example, salary increases that were planned before certification). Noting that four months is insufficient to negotiate a first collective agreement, the Panel recommended extending the freeze period to 12 months or until a collective agreement is executed.
  • Agreements to be filed with the Board: The Panel recommended that absent good and valid reasons, parties to a collective agreement who fail to comply with the filing requirements under s. 51 of the Code should not be able to rely on the collective agreement for Code purposes. This recommendation would effectively create an enforcement mechanism for non-compliance.
  • Removing education as an essential service: B.C. is currently the only Canadian Jurisdiction which includes education as an "essential service" to which rules regarding regulated strikes apply. The Panel recommended that only "truly" essential services, such as grade 12 examinations, should continue to be treated as essential services.
  • Increasing efficiency in arbitrations: Noting that arbitrations have become increasingly time-consuming, inefficient and costly, the Panel recommended an increased role for mediation as soon as possible after a referral to arbitration, and recommended requiring a case management conference within thirty days of the appointment of an arbitrator to encourage timely exchange of particulars and documents. The Panel made further recommendations with respect to expedited arbitrations conducted under s. 104 of the Code.

The Panel also recommended increased fines for non-compliance with the Code, changes to decrease the use of mail-in certification votes, and amending certain Code definitions, among others.  However, it refrained from making recommendations regarding multi-employer and sectoral certification, successorship in the forest industry, and sectoral collective bargaining, citing insufficient information on which to base recommendations in these areas.

These recommendations are only recommendations. The provincial government has given no indication to date as to which recommendations, if any, it will accept. The current Code will continue to govern labour relations in B.C. unless and until amending legislation is enacted.  We will be sure to continue to update you if and when the government acts on the Report.

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