At the beginning of the 20th century, it was the federal government that was primarily concerned with the development of laws for the administration and regulation of labour relations. Canada’s early legislation in this domain was modelled closely after Britain’s, and contained similar shortcomings. It emphasized speedy dispute resolutions while shying away from a formal embrace of collective bargaining practices.
In 1925, the Judicial Committee of the Privy Council removed the federal government’s labour relations mandate over most employers with its decision in Toronto Electric Commissioners v. Snider. In Toronto Electric Commissioners, the JCPC found that the 1907 Industrial Disputes Investigation Act was ultra vires the federal government, meaning as a result that labour relations law in Canada became mostly under provincial jurisdiction. Only Federal Works or Undertakings have their labour relations regulated by the Federal Government.
The Federal Government regained control, however, with the onset of the Second World War and the extension of its jurisdiction under the War Measures Act. Responding largely to the labour reform initiatives undergone in the United States during the 1930s, Canada’s wartime government set about an overhaul of labour relations regulation with a number of Orders in Council, including the influential P.C. 1003. These reforms provided the base upon which the Industrial Relations and Disputes Investigations Act was built. Enacted shortly after the end of the national emergency in 1948, the Industrial Relations and Disputes Investigations Act became the template for the various provincial regimes. With the exception of Prince Edward Island, Saskatchewan, and Quebec, the other provinces quickly brought their provincial legislation in line with the federal model.
As a result there is a common core of principles and approaches to labour laws today amongst the various Canadian jurisdictions. All Canadian jurisdictions currently intervene in the collective bargaining process by:
- controlling the recognition and certification of trade unions;
- designating unfair labour practices;
- forcing parties to bargain and enforcing the bargain once it is struck;
- designating the proper investigative, adjudicative and conciliatory authorities; and
- postponing the ability to lockout or strike until the prescribed procedures have been exhausted.
A Summary of the Major Ingredients of Labour Statutes by Jurisdiction
The chart which follows this general description sets out the main ingredients of the labour acts in each of the Canadian Jurisdictions, broken down by topic area. Although there are significant similarities from jurisdiction to jurisdiction, there are important differences in time lines and approaches that must be taken into account. Unless an entity is a Federal Work or Undertaking, the laws of one province have no automatic application in any other. Employers and employees covered by federal legislation remain ‘covered’ in every province, but are not affected by the labour law in any province. In some cases, ‘related employer’ or ‘sale of business’ provisions can transfer unionization from one jurisdiction to another, however, the legislation in the ‘receiving’ jurisdiction is determinative. The chart which follows refers to the appropriate sections of each Act.
Some jurisdictions have Statutes, in addition to their general labour law which allow for ‘collective bargaining’ other than under the Labour Code or Labour Relations Act in that jurisdiction. These include statutes governing ‘artists’ in both Quebec and Federally. Quebec does not recognize and apply the common law of Canada and therefore general principles of common law dealing with employment generally do not apply in Quebec. For this reason care must be taken in dealing with both employment and labour law in the Province of Quebec where the Civil Code, and other Statutes, in addition to the Labour Code regulate and govern the employment relationship. In addition, many jurisdictions have special legislation governing labour relations for essential services, such as police forces, hospitals, fire fighters etc. A detailed description of these statutes is beyond the scope of this brief summary.
The attached Charts deals with these major topics:
Every jurisdiction in Canada has procedures by which a union may apply to be the bargaining agent of a designated unit of employees. In each jurisdiction, the Statutory Tribunal appointed to be responsible for labour relations has the power to determine what constitutes an ‘appropriate bargaining unit’. In some cases, the enabling statute sets conditions on what and who is to be considered in an appropriate unit, sometimes depending on the type of employees, such as professionals, guards, or ‘crafts’, and in others on the industry they are in - such as construction. Generally speaking only ‘employees’ are eligible to be included in a bargaining unit, but that definition is broader than the definition for other purposes. It can include individuals who would be considered independent contractors for other purposes, if they derive the majority of their income from one entity and are ‘economically dependant’ on that entity or in some cases a particular industry. Managerial employees are usually excluded from being members of a bargaining unit, as are certain professionals such as physicians or lawyers.
There are two main ways by which the applying union can demonstrate ‘support’ sufficient for ‘certification’. One technique used in a number of jurisdiction involves the use of membership evidence, often by way of a membership application, or other proof of membership. These documents are submitted to the appropriate tribunal and if the union can demonstrate that a fixed percentage of the employees deemed by the Board to be in an appropriate bargaining unit at or during a time set by the legislation, the Board is then empowered to certify. This ‘card based’ approach involves no automatic vote and the ‘certification’ is based merely on demonstration of support from the requisite percentage of employees required by the legislation. Often there is a range which is below this requisite percentage which allows for a vote if the higher percentage is not met.
The other approach requires a vote. Where a prescribed percentage of support is demonstrated, a vote is conducted. In such a vote, the percentage of those who vote for the union, of those who actually vote, is determinative. Often there is a very short time between the day the application is made and the day of the vote. The long ‘campaigns’ that used to characterize applications in the United States only occur in Canada if they happen before the application is actually made.
Employer Actions During Unionization Campaign
The right to engage in union activity, including organization, is strongly protected in Canada. Very often, an employer’s reaction when learning that a union drive is ongoing at its place of business is to take actions to attempt to stop the drive. Often the actions taken can fall afoul of the legislation. Employers are generally allowed to give their opinion, but they cannot coerce or intimidate or make promises or attempt to ‘resolve’ complaints employees may have that is driving them to attempt unionization. These actions are deemed to be ‘unfair labour practices’ in all Canadian jurisdictions and several of them have provisions allowing the relevant Labour Board to ‘automatically certify’ a union if the actions of the employer have made it difficult or impossible to determine the true wishes of the employees. Terminating employees involved in an organizational drive is virtually never a good idea, and will in virtually every case result in an unfair labour application, if not an automatic certification application.
But even less draconian responses can be very dangerous. Promising to ‘fix’ perceived problems, or offering wage increases is also contrary to law if done in response to a unionization attempt. Before taking any action in the face of a union drive, employers should seek advice from an experienced labour practitioner familiar with Canadian law. The law with respect to these matters is universally very different from the law in the United States, and depending on the the advice of a US attorney could be fraught with difficulty unless they are fully conversant with the very different approach taken by Labour Boards and Tribunals in Canada.
Some Canadian Jurisdictions allow for ‘voluntary recognition’. In these circumstances, an employer agrees to recognize a union as the bargaining agent of a specified group of employees. To be ‘valid’, such recognition can usually only be made either, after the majority of employees indicate their support for the union, or in certain circumstances prior to any employees being hired in order to attract skilled union labour. In some jurisdictions such as Ontario, employees affected by a voluntary recognition agreement have the right to challenge the voluntary recognition if they do so in timely fashion - in Ontario by way of example, within one year.
Decertification is also defined and regulated by the relevant legislation in each jurisdiction. In most cases, an employee, or group of employees can apply for decertification during the first year of a voluntary recognition agreement, or after one year where the union has been certified but no collective agreement is in place, or during the ‘open period’ which is usually, but not always, the last three months of the collective agreement, or the last three months of the third (or in some cases the second) year and any subsequent year of a collective agreement. In some jurisdiction, such as New Brunswick, the employer can also apply for decertification - but that is not available in most jurisdictions. A detailed review of the procedures in each jurisdiction and the time lines in each must be carefully reviewed in each case. In addition, if the application by employees is in any way influenced by management, it will be found to be tainted and dismissed. In many cases, the Union will allege employer participation, even if there is no evidence to establish this fact, and in this way attempt to defeat the decertification application.
Every jurisdiction has notice provisions concerning notice to be given for bargaining to commence, the timing of such notice, and a requirement that the parties meet and bargain in good faith. Good faith bargaining does not require that one party agree with the demands of the other, only that there be rational discussion about the issues raised. Unlike the law in the United States, there is no clear delineation between ‘mandatory’ and ‘permissive’ subjects for negotiation. Unless a request is unlawful - such as discrimination under a human rights code contrary to a prohibited ground or other unlawful action - the parties are required to rationally discuss any request. In addition, if one side, usually the employer, is found to be engaged in ‘surface bargaining’ - bargaining clearly aimed at not reaching a collective agreement - or other serious unfair labour practices, the Board or Tribunal has powers to enforce meaningful bargaining, including in many jurisdictions, the ability to order first contract interest arbitration to determine and finalize any issues in dispute in a first collective agreement. This ability is intended to counter what was a not uncommon tactic in first contract negotiations where the employer would merely go through the motions with no real intent to ever come to a collective agreement.
Grievance and Arbitration:
Every jurisdiction has provisions for mandatory grievance and/or arbitration provisions so that any disputes concerning the administration, interpretation, application or alleged violation of the collective agreement can be resolved without work stoppage. In most jurisdictions, the statute provides language for arbitration if the collective agreement does not contain any or adequate provisions. It is common for the Minister of Labour to appoint an arbitrator if the parties cannot agree. In some jurisdictions, the Labour Board or Tribunal has jurisdiction to deal with some disputes. In addition, some jurisdictions have ‘expedited arbitration’ where the Minister appoints an arbitrator and the hearing must be conducted within a fixed number of days. In every jurisdiction, it is a violation of the requisite Act for a union or anyone else, to call a strike during the currency of a collective agreement, or the statutory freeze period, or for the employer to lock out during that period. The Boards or Tribunals have jurisdiction to issue cease and desist orders in the event of an unlawful strike or lockout.
Every jurisdiction has provisions which require, or can require conciliation or mediation prior to either the union exercising its right to strike, or the employer instituting a lock out. In all cases, this can only occur after the collective agreement term has expired and after the prescribed mediation or conciliation procedures have been completed. Some jurisdictions have provisions for more than one ‘level’ of mediation, or in some cases, an ability on behalf of the Government in the jurisdiction to request a review or other proceeding before the right to strike or lockout commences [eg. Canada Code s. 87.4 (5) - Minister may request Board to consider whether strike or lockout poses threat to public].
Strike or Lockout:
Not every unionized employee or bargaining unit has the right to strike. In most jurisdictions certain classifications of employees such as police, fire fighters, hospital workers, ambulance drivers etc. have restricted rights, or no rights to strike. In many jurisdictions there is separate legislation dealing with certain classes of employees and imposing compulsory arbitration as the sole means to resolve disputes. In others, the parties are required to come to agreement on those employees who cannot strike within a particular bargaining unit because they provide ‘essential services’. By way of example, hospital employees in Ontario and Alberta are prohibited from striking and any disputes must be submitted to final and binding arbitration. In Saskatchewan and some other provinces, hospital workers have the right to strike, but the obligation to continue working exists for employees designated as providing ‘essential’ or ‘emergency’ services. Despite these laws, strikes have been used in jurisdictions, such as Alberta, even though they are ‘unlawful’ in order to attempt to force Governments to negotiate.
Many jurisdictions require the workers in some or all industries to vote by majority vote to authorize a strike, and if the union fails to obtain such authorization, the strike is not legal. Some jurisdictions also require notice to the employer of a strike, but this is not universal.
Workers who exercise the right to strike are protected by legislation from any actions ‘punishing’ them for exercising this right. However, this protection is not unlimited. By way of example, in Ontario, any worker on strike has the right to abandon the strike to return to work for a period of six months from the date the strike commenced, so long as the employer is continuing to operate similar functions to those the worker preformed. After six months, the employee no longer has that statutory right. Workers affected by a lockout have no such protection so long as the operations of the employer remain suspended.