Ministry Releases Report on Recommended Amendments to the BC Labour Relations Code

By Brent Mullin

On October 25, 2018, the Minister of Labour released the Report on Recommendations for Amendment to the Labour Relations Code (the "Report"). The Report is available online here.

The Report was submitted to the Minister by a three-person panel of advisors appointed to review and recommend amendments to BC's Labour Relations Code (the "Code"). This followed a public consultation process in which the Panel had received over a hundred written submissions and held public hearings across the province.

The 150-page Report contains 29 recommendations for changes to the Code. Key among these are recommendations to:

  • maintain the current secret ballot vote for union certification rather than adopt a card-check system of automatic certification based on union membership cards. One of the three panel members dissented on this point;
  • return to the more restricted employer speech rights which existed in the Code prior to 2002;
  • provide unions with greater access to remedial certification where employers are found to have engaged in unfair labour practices;
  • reduce the time period for holding a certification vote from the current maximum of 10 days to 5 days (excluding weekends and statutory holidays) after a certification application is filed;
  • require an employer to provide the Board with an employee list in a timely manner following the filing of a certification application. However, the Panel rejected the proposal that employers be required to provide a union with a list of employee names and contact information during an organizing drive;
  • extend the validity of signed union membership cards to 6 months, up from the current 90 days;
  • lengthen the statutory freeze period restricting an employer from changing terms and conditions of employment following certification from 4 months to 12 months (or until the end of the first collective agreement process under section 55 of the Code);
  • remove the requirement that a union must take a successful strike vote before it can apply for first collective agreement arbitration;
  • continue the Board's practice of allowing decertification of an identifiable part of a bargaining unit where certain conditions are met (partial decertification);
  • retain the Code's restrictions on secondary picketing;
  • narrow the definition of picketing under the Code to make it consistent with constitutional requirements established by the Supreme Court of Canada;
  • move the raid period in the construction industry from the 7th and 8th months of each year of a collective agreement to July and August in the last year of a collective agreement of 3 years or less and then every year thereafter if the collective agreement is for more than 3 years' duration;
  • outside the construction industry, the 7th and 8th months remain the raiding period, but raids would be limited to the last year of a collective agreement of 3 years or less and in every year after that if the collective agreement is for more than 3 years;
  • allow a potential opening up of a collective agreement for negotiation following a successful raid;
  • expand union successorship rights when a service contract is re-tendered to a new service provider in the following industries: building cleaning, security, bus transportation, and the health sector, including food, housekeeping, security, care aides, long-term or seniors' care. In addition, it is recommended that cabinet be given the power to expand this list to other sectors;
  • increase the Board's ability to engage in more extensive case management and dispute resolution processes;
  • enhance the powers of arbitrators under the expedited arbitration provision in section 104 of the Code to ensure a more efficient and expeditious process;
  • remove K to 12 education as an expressly listed essential service in the Code;
  • authorize the Board to impose higher fines on individuals and corporations for failing to comply with its orders; and
  • increase the budget of the Board.

While the Panel rejected the union community's proposal for a review of the construction industry, the Report recommends further study on a number of issues including sectoral or multi-employer certifications, sectoral collective bargaining and successorship issues in the forestry sector.

Overall, it would appear these recommendations represent a balance the Panel was seeking to achieve between needed reforms and stability in the at times polarized field of labour relations in BC.

The Ministry has invited public feedback on the Report to be submitted by email until November 30, 2018. Further consultation with stakeholders will occur in advance of the introduction of amendments to the Code in the spring of 2019.

For any questions about the Report or any labour relations matters, please contact Carman Overholt or Brent Mullin at Overholt Law.