Canada: BC Employers Take Note: Changes To BC Labour Relations Code Are Now In Force

Last Updated: July 11 2019
Article by Natalie Cuthill and Rosie Schlagintweit

The BC government is moving ahead with long-anticipated amendments to the BC Labour Relations Code (the “Code”).  In large measure, the amendments reflect the recommendations for change which were made in a report released in the fall of 2018 by the Labour Relations Review Panel. These amendments are now in force as a result of the Labour Relations Code Amendment Act, 2019 receiving Royal Assent on May 30, 2019.  

In a recent news release, the government explained that the focus of the amendments are “greater protection for workers, job security, labour rights, and stability for employers.”

The amendments can be seen as tilting back the existing balance in the Code more in favour trade unions and employees.  However, it is not the case that trade unions are getting everything that they hoped for.

The purpose of this bulletin is to provide a summary of the more significant amendments to the Code.  Further, more detailed information can be obtained from any member of the McMillan Vancouver Employment and Labour Group.

Union Certification

Unions in British Columbia lobbied hard for the outright elimination of the secret ballot requirement for union certification.  Although this most coveted of union objectives was not achieved, the existing requirement to hold a union certification vote within ten days from the date of application for certification has been reduced to five business days (excluding Saturdays, Sundays and statutory holidays) from the date of application.

This shorter time requirement for holding a certification vote will generally be viewed by unions as at least an acceptable compromise.  For employers, the decision of the government to maintain the secret ballot requirement is a positive outcome. 

The requirement that a secret ballot vote be held within five business days is intended to reduce the opportunity for employers to engage in anti-union campaigns intended to persuade employees to vote against union certification.

Employer Free Speech

Before the amendments became law, employers had a broad right to communicate views on any matter including on representation of employees by a trade union, provided no intimidation or coercion was used.  This existing right, which was seen as providing the opportunity for employers to engage in anti-union campaigns, is now considerably narrowed. Employers are now limited to communicating to employees only statements of fact or opinion reasonably held about the employer’s business.

Automatic Certification

In circumstances where an employer has committed an unfair labour practice, including possibly where it has over stepped the narrower bounds of free speech, the BC Labour Relations Board now has specific remedial authority to order automatic union certification without a vote where it considers it is “just or equitable” to do so.  This expanded authority is intended to have the effect of dissuading employers from engaging in unfair labour practices including during union organizing campaigns.

Union Raiding Rules

Previously unions were able to apply to the Board to represent employees who were already represented by a different trade union during the 7th and 8th months in each year of a collective agreement (known as the raiding period).  Unions are now restricted from raiding until the 7th and 8th months of the 3rd year of the term of a collective agreement, or if the collective agreement is for a term of 3 years or less, the last year of the term of the collective agreement.  The purpose of this amendment is to provide for additional industrial stability. 

Successorship

The union successorship provisions of the Code, which protect a union certification and collective agreement on a sale of a business, are now extended to circumstances where a contract is retendered and substantially similar services continue to be performed by the new contractor.  Specifically, union successorship applies to retendering in the building cleaning services, security services, bus transportation services, food services, health sector non-clinical services, and any other services added by regulation.

Picketing

The definition of picketing under the Code has now been clarified to specifically exclude from the definition of picketing lawful consumer leafletting that does not unduly restrict access to or egress from that place of business or operations of employment or prevent employees from working at or from that place of employment.

Statutory Freeze Following Union Certification

The statutory freeze period during which employee pay and other terms of employment must not be changed by the employer following the certification of a union has been increased from 4 months to 12 months.  This extended statutory freeze period provides enhanced protection for unions in attempting to negotiate a first collective agreement with an employer.

Imposition of First Collective Agreement

The opportunity for a union to apply to the Board for an imposed first collective agreement is now expanded to include the circumstance where no strike vote has been taken.  This amendment provides an advantage to unions seeking to achieve a first collective agreement including in circumstances where employees may be reluctant to take strike action against the employer.

Expedited Collective Agreement Arbitration

The Code has long contained a provision for expedited arbitration with the intent to make the arbitration process both quicker and more accessible for unions and employers.  The existing expedited arbitration process has been strengthened.  The appointed arbitrator must conduct a case management conference within seven days, conclude the arbitration hearing within 90 days, and render written reasons within 30 days after the end of the arbitration hearing, with a seven page limit on the written reasons.

Arbitration Case Management Conferences

There is now an obligation for an arbitration board to conduct a case management conference within 30 days of the appointment of the arbitration board for the purpose of exchanging information and documents and scheduling hearing dates and encouraging settlement of the dispute.

Appointment of a Facilitator

A collective agreement must contain a provision for a joint consultation committee.  Previously, the Board could appoint a facilitator to assist the joint consultation committee, but only where both parties requested such an appointment.  The Board may now appoint a facilitator where either party makes a request for such an appointment.

Section 54 Adjustment Plans

Where an employer intends to introduce a measure, policy, practice or change that affects the terms and conditions or security of employment of a significant number of employees, at least 60 days notice must be provided from the employer to the union.  Either the union or the employer may now apply to the Board for the appointment of a mediator to assist in developing the required Section 54 adjustment plan.

Appeal of Arbitration Awards

The jurisdiction of the BC Court of Appeal to hear appeals of arbitration awards has been narrowed to review where “…the basis of the decision or award is a matter or issue general law” this amendment will have the effect of expanding the jurisdiction of the Board with respect to review of arbitration awards.

Employers should familiarize themselves with these changes that are now in effect.

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2019

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Borden Ladner Gervais LLP
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Roper Greyell LLP – Employment and Labour Lawyers
Borden Ladner Gervais LLP
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions