Authors: Shannon Whyley, Robert Frost-Hinz
Recent amendments to the Canada Labour Code (the “Code”) came into force on June 22, 2017, following Royal Assent of Bill C-4. These amendments modified a number of requirements with respect to applications for union certification and decertification, and will apply to federally-regulated employers throughout Canada.
Bill C-4 fulfilled campaign promises on the part of the federal government in repealing Bill C-525.
Bill C-525, as implemented by the previous Conservative government, required that the certification of a union as a bargaining agent be achieved through a mandatory secret ballot vote (as is the current practice in Saskatchewan under The Saskatchewan Employment Act for provincially-regulated employers), and relaxed the conditions required to revoke union certification.
In light of the reversal of Bill C-525, the previous automatic “card check” system has now been restored with respect to federally-regulated employers.
This system allows a union to become certified – absent a secret ballot vote – if the Canadian Industrial Relations Board (the “CIRB”) is satisfied that, through evidence of signed membership cards showing majority support at a rate of 50 per cent plus one of employees within the scope of the proposed bargaining unit, the majority of affected employees wish to be represented by the applicant union. However, this automatic certification is discretionary, and the CIRB may order a secret ballot vote where it is deemed necessary or suitable.
Along with retaining authority for the CIRB to order a representational vote where it should deem fit, the new amendments have not abolished mandatory voting requirements entirely. Rather, the Code now requires the CIRB to order a mandatory vote where an applicant union provides evidence of support of 35 to 50 per cent of employees in the targeted bargaining unit.
While rendering the certification process arguably less difficult for unions and employees who wish to organize, the amendments also render the decertification process more stringent.
In that regard, the amendments increase the threshold of demonstrated support needed before a decertification vote may be held – from 40 per cent to 50 per cent plus one. This is reflective of the threshold that was in place prior to the implementation of Bill C-525 (the Conservative government bill).
As such, while a union seeking certification within a federally-regulated workplace now only needs to demonstrate 35 per cent support in order to trigger a vote, employees seeking to decertify a union must first demonstrate full majority support in order for their application to move forward.
For more insight into the recent Code amendments and how they might affect your organization, consider attending one of our upcoming seminars or contact one of labour & employment practice area members.
Note: This article is of a general nature only and is not exhaustive of all possible legal rights or remedies. In addition, laws may change over time and should be interpreted only in the context of particular circumstances such that these materials are not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice in any particular situation.