Bill 10, which largely eliminates secret ballot votes as a precondition of unionization and opens the door for yearly union raids in the construction industry, has now passed third reading. We expect it to become "law" later this week or next, when the Bill receives Royal Assent.
These changes have been high on the Union wish list since the NDP was first elected. Now having a majority, the Government has pushed through these significant changes without any meaningful consultation, and in contradiction to their own expert panel, who recommended against these same changes in 2019.
Card Check Certification
This change removes the (currently) mandatory secret ballot vote, which requires majority employee support in a vote in order for a union to be "certified" to represent workers.
Instead, under the card check system, if a union is able to demonstrate the support of 55% of employees in a proposed bargaining unit by simply having those employees sign a membership card or otherwise being active members of the union, the union will be automatically certified without a vote. Where less than 55% of employees in a proposed bargaining unit have signed a membership card, the Board may still order a vote, so long as at least 45% of employees have signed a membership card.
Union cards are too often signed under peer pressure or based on misrepresentations. The simple signing of a union card, in itself, does not necessarily mean that individuals want their workplace to be unionized. The conduct of a secret ballot vote provides employees with a fair chance to consider the issue, and vote as they wish, in a confidential manner.
Studies examining the shifts in union certification between card-check and mandatory voting models have found a significant increase in certifications in jurisdictions which utilized the card-check model. This is consistent with the British Columbia experience, which removed the card check model in 2001, and experienced a subsequent decrease in new certifications issued in the province. Make no mistake, that is the legislative goal here: to increase unionization in BC.
It is notable and disappointing that this change is contrary to the express recommendations made by the majority of an expert panel appointed by the NDP themselves in 2019 to study the BC Labour Relations Code and make recommendations for legislative change.
Non-unionized employers should expect more frequent certification attempts in their workplaces following Bill 10 coming into force.
Annual Raids in the Construction Industry
The second amendment included in Bill 10 permits annual union "raids" in the construction industry every summer, in July and August. A raid occurs when one union attempts to displace another at a workplace.
While raids can certainly benefit whichever union obtains new dues-paying members from a different union, they are disruptive to business operations. Raids are often accompanied by litigation and in-fighting between the competing unions and their respective supporters within a workforce.
Currently, where an existing union has a collective agreement in place with an employer for a term of 3 years or less, a rival union is prohibited from raiding until the months of July and August which fall in the last year of the collective agreement.
The current system exists due to the recommendations made by the NDP's aforementioned expert panel, which stated as the basis for their recommendations that, "there was considerable support from unions and employers for reducing the frequency of the open raids to correspond to other Canadian jurisdictions." This provided much needed operational stability for construction employers, which will be lost following this change.
While this change to "yearly raids" may seem neutral on its face to some, it has been advocated by the "traditional building trades" who seek to displace other unions, who are sometimes known to work together with employers for the benefit of all, rather than take the "us vs. them" approach of traditional labour.
Industry Response
Since Bill 10's introduction, many organizations have published opinions or letters condemning both the changes contained within Bill 10, but also the manner in which the legislation has been brought forward.
The Greater Vancouver Board of Trade published a joint industry statement, available here, which addressed not only Bill 10's weakening of the democratic rights of workers, but also criticised the timing of Bill 10, and the lack of consultation with stakeholders in the province.
The British Columbia Construction Association, along with many other organizations, have published a letter to Premier Horgan to express their dismay with the changes as well. That letter is available here.
Moving Forward
Bill 10 passed third reading on May 17, 2022. It will come into force on Royal Assent, likely on or before June 2.
Mathews Dinsdale is committed to ensuring employers are kept informed of these changes as they happen, and are available to provide you with further information and guidance as the effects of this bill manifest in your workplace.
If you have any questions, or wish to discuss the legislation and its effects in more detail, please do not hesitate to contact one of the lawyers in our Vancouver or Victoria offices.
The author gratefully acknowledges the assistance of Jakob Sanderson, an Articling Student in the firm's Vancouver office.
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