On April 24, 2019, the Nova Scotia Government created the Trade Union Act General Regulations so that the Labour Board will no longer consider a Saturday, Sunday, or holiday as the date of application for purposes of unionization in the construction industry.
As is explained in more detail in our April 4, 2017 article, Unionization in the Construction Industry: Vacation Day + Snapshot Rule = Disenfranchisement the Snapshot Rule, which only applies in the construction industry, provides that an employee who is not working on the date the union decides to file the application for unionization does not have a say on the unionization question.
As explained in the News Release – New Trade Union Act General Regulations, the rationale behind the regulatory change is that "[e]mployees have a right to fair workplaces where they can have their voices heard." According to the Government, "[w]eekend work is a prime example of when a smaller group of employees can trigger the unionization of a larger workforce." The Regulations are designed to prevent the weekend and holiday certifications.
Recent examples of the weekend certifications
Weekend certifications do occur. For example:
- The Nova Scotia Labourers Union utilized the Snapshot Rule by filing an application on a Saturday.
- An Ontario union utilized the Snapshot Rule by filing an application on a Sunday (which happened to be Father's Day) when there were only two employees working (the employer regularly employed 12 employees).
- The New Brunswick Labourers Union utilized the Snapshot Rule by filing an application on a Saturday when there were only seven labourers working (the employer regularly employed 33 labourers).
The "No Certification" days
The Regulation provides that if the Union files the documents required to be filed for the purposes of making an application for certification under section 95 of the Trade Union Act on the days identified below, the Labour Board will deem such documents to be filed on the 1st business day immediately after the day on which they are submitted:
- New Year's Day;
- Heritage Day;
- Good Friday;
- Victoria Day;
- Dominion Day (Canada Day);
- Labour Day;
- Thanksgiving Day;
- Remembrance Day;
- Christmas Day.
Whenever one of the above holidays, with the exception of Remembrance Day, falls on a Sunday, the holiday includes the following day.
It remains to be seen whether the August long weekend (called Natal Day in parts of Nova Scotia) is captured by the Regulations.
Regulations are a good start
The Regulations are an improvement from the perspective of employers and employees who believe that majoritarianism and democracy are not furthered by a union being permitted to "gerrymander" the constituency by choosing to file an application on a day that it knows a smaller group of employees than normal are working.
However, the Government's rationale for this regulatory change is that "[e]mployees have a right to a fair workplace where they can have their voices heard". Therefore, it is difficult to understand why employees, who take a day off due to illness, disability, or vacation on a date that a union files an application that is not captured by this regulatory change, are also not entitled to a fair workplace where they can have their voices heard.
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