Newsletter written by Michael J Weiler
This newsletter expands the May 10, 2019 blog post summary of amendments.
MAILED TO SUBSCRIBERS OF THE NEWSLETTER OF
Michael Weiler Employment + Labour Law on May 13, 2019
Dear Clients and Friends,
Labour Relations Code amendments — Why are BC Fed Officials Smiling? On April 30th, 2019, the NDP government introduced Bill 30, the Labour Relations Code Amendment Act, that fundamentally alters the law in favour of unions – see Bill 30 – Labour Code Amendment Act. Bill 30 largely follows the recommendations of the Labour Relations Code Review Panel (the “Review Panel”) in its August 31st2018 Report (the “Report”). See Report of Review Panel.
While employers may be thankful that Andrew Weaver stuck to his guns and forced the NDP to retain the secret ballot vote in certification applications, the reality is that employers, especially nonunion employers, need to take note of these changes as they may well have a profound impact on how business is done in BC. Further, the report makes it clear that there may well be other changes following further consultations.
Bill 30 comes on the heels of proposed amendments to two other pieces of employment legislation, namely:
- significant “worker favourable” changes to the Workers Compensation Act that have been introduced or will likely be introduced following further consultations; and
- significant changes to the Employment Standards Act that were introduced on April 29th, 2019 in Bill 8. We will be posting a summary of Bill 8 on our blog website later this week.
Non-union employers, in particular, should become familiar with the certification process and the potential impact of the changes on your particular business once Bill 30 becomes law in order to develop effective strategies to respond to a union organizing drive.
Some will argue that Bill 30 does nothing more than restore balance to the Code. I disagree. These amendments are politically motivated as the NDP continues to favour its traditional union constituents (to the exclusion, for example, of other non-traditional unions such as CLAC through its “Building Trades only” project agreements). In fact, the NDP would have eliminated the secret ballot vote in favour of a card check system and taken labour relations back to 1992, but for the Greens’ objection. Labour Minister Harry Bains made this point very clearly—one wonders what will happen if the NDP is returned for a second term with a full majority.
Bill 30 is aimed at increasing union power and union density. BC Fed President Laird Cronk summed it up nicely:
“British Columbia remains a low-wage province, and precarious work is on the rise. The best antidote to economic inequality is greater union density.”
Furthermore, the changes proposed in Bill 30 create uncertainty for employers and will undoubtedly increase litigation as the Labour Relations Board (the “LRB”) sorts out what the changes mean and how they are to be applied. Further consultations will likely produce more legislation. One thing remains certain—the changes in Bill 30, for the most part, are intended to increase union density and security and will likely be interpreted by the LRB with that in mind.
In order to assist our readers in understanding the critical elements of Bill 30 when it becomes law, we have prepared two reports.
First, we have provided a summary of the changes to the Code. Some are fairly innocuous, but others are very significant. See: summary that is posted on our blog on our website. We suggest you review the summary and if you need further information on any aspect, send me an email at firstname.lastname@example.org
“Summary” may also be accessed by copying and pasting this URL in your browser: https://www.ksw.bc.ca/2019/05/10/bill-30-labour-relations-amendment-act-2019-summary-of-provisions-first-reading-april-30th-2019/
Second, I have expanded the analysis on 3 key areas of Bill 30 that I think will have a significant impact on both union and nonunion employers. Those three key areas of analysis are:
- Changes to the certification process, employer free speech and remedial certifications
- Successorship and retendering of contracts.
- First collective agreements, the extension of the statutory freeze and remedial certifications.
Our analyses on these three areas are reported below, in this newsletter.
1. Changes to the certification process, employer free speech and remedial certifications
Nonunion employers need to take note of the cumulative effect of these changes against the backdrop of the NDP’s goal of increasing union density. Although Bill 30 has retained the secret ballot vote (for now), the process has been changed to favour unions.
In 2002, the Liberal government made two critical changes to the Code. First, it reintroduced the secret ballot vote and eliminated the automatic card check certification process. Second, it amended sections 6(1) and section 8 of the Code to expand employer free speech. These two changes combined to ensure that employees made intelligent, careful decisions when making the very important choice of whether their workplace should be unionized, or should it remain nonunion.
I don’t want to diminish the importance of retaining the secret ballot vote in Bill 30. The employer input on that issue and its representative on the Review Panel made compelling arguments as to why the secret ballot vote should be retained. Employees will still be the final arbiter on whether their workplace becomes unionized through the democratic process of the secret ballot vote.
But Bill 30 includes other fundamental changes that will undoubtedly assist unions. The Review Panel, at page 12 of the Report, made it clear it would only maintain the secret ballot vote if there were added protections for unions:
“The Panel is acutely aware the secret ballot vote can only be an effective mechanism for employee choice if the Code deters and prevents employers from engaging in unfair labour practices and provides meaningful consequences for such practices.
The exercise of employee choice through certification votes must be protected by shortening the time-frame for votes, ensuring the expeditious and efficient processing of certification applications and unfair labour practice complaints, together with the expansion of the Board’s remedial authority. If these enhanced measures are not effective, then there will be a compelling argument for a card check system.”
I take this to mean, if union certifications do not increase dramatically, the Code will be changed to revert back to the 1992 concept of a card check system and the elimination (for all intents and purposes) of the secret ballot vote.
Despite the retention of the secret ballot vote, Bill 30 makes a number of changes to the certification process to deter employer interference and broaden the LRB’s remedial authority. These changes include:
- A shortened period between the filing of the application for certification and the secret ballot vote (the period will be 5 business days from the current 10 calendar days). An employer who is not prepared may well find it impossible to communicate effectively within a significantly shortened period.
- Employer free speech has been curtailed. Sections 6(1) and 8 have been amended to reduce employer free speech and widen the scope of what can be considered unfair labour practices. Bill 30 reverses the 2002 amendments and takes us back to the restrictions of 1992.
- The LRB will have expanded powers to order a certification without a vote if there are unfair labour practices. Bill 30 allows the Board to order such certifications where the Board “believes it is just and equitable in order to remedy the consequences of the prohibited act”. It will take some time for employers to know how the Board will exercise its discretion and by then it may be too late. As a further enhancement of a union’s ability to organize a workplace and achieve a collective agreement, Bill 30 extends the statutory freeze on changing terms and conditions of employment and the prohibition from disciplining or terminating employees unless there is “proper cause” from the current 4-month period to 12 months. Further, a union cannot be decertified until 12 months after certification.
2. Successorship and retendering of contracts.
Prior to Bill 30, if an employer contracted out services and then retendered that contract, the successful bidder would not be bound as a successor employer under section 35 to any union certification or collective agreement.
Bill 30 makes the bold move of allowing successorship orders if the contract is retendered, resulting in the new contractor being bound by any certification or collective agreement in force.
The service contracts that are included in this provision are very broad and not defined with any precision. They include building cleaning services, security services, bus transportation services, food services and “non-clinical services in the health sector”. The NDP left themselves lots of room to add to the list of services that will be covered as prescribed under section 159(2)(f) of the Code. I note that this list of services goes well beyond what the Review Panel recommended.
What this effectively means is that, once your contractor of the type of non-core services is unionized, all such contractors will be unionized. The union certification and collective agreement effectively become attached to the work and not the employees of the contractor. This is contrary to the whole premise of the Code.
There are many practical problems resulting from this ill-advised provision. Ironically, unionized service contractors will now find it much harder to get contracts for fear of the successorship provisions.
3. First collective agreements, the extension of the statutory freeze and remedial certifications.
Section 55 of the Code allows a union to apply to have a first-time collective agreement imposed by the LRB. Currently, a union must get a strike vote to make such an application, but Bill 30 removes that requirement. Most importantly, a mediator or the LRB can consider the conduct of an employer who is subject to a remedial certification both before and after certification. This might well mean that unions lacking strong support from their membership are able to get a first collective agreement through arbitration rather than a strike.
We suggest you consider how these three provisions might affect your business, in the contexts of these analyses above together with the detailed Summary of the specific amendments contained in Bill 30.
These provisions in Bill 30 are complex and nuanced. They may well have unintended consequences. For the nonunion employer, especially, it is imperative to develop a strategy that deals with the very real possibility that your operations may be the target of a union organizing drive and your response to such an application is limited to 5 business days.
Depending on interest I will consider conducting seminars on both Bill 30 and Bill 8 once they have become law. If you are seriously interested in attending such a seminar, please email me so I can gauge interest.