Changes To BC’s Labour Relations Code

By Brent Mullin

Amendments to British Columbia’s Labour Relations Code (the “Code”) came into force on June 1, 2019 bringing some important changes to the union certification process and to unionized workplaces in the province. We would like to highlight for you what we believe to be the most significant of these changes.

Changes Affecting Non-Unionized Workplaces: The Union Certification Process

For workplaces which are currently not unionized there are substantial amendments to the certification process. While the Code still requires a secret ballot vote by employees before a union can be certified to represent them, both the time period for holding this vote and the rights of employers in the certification process have been significantly amended.

The time limit for holding a certification vote has been reduced from 10 calendar days to 5 business days from the date the Labour Relations Board receives the union’s certification application. This is a tight timeframe for all those involved, including the Board which must now process the application, notify the parties, identify the employees affected by the application, potentially hold a hearing, and conduct a vote all within 5 business days.

The Code has also been amended to give the Board the express power to order an employer to provide a list of employees in the proposed bargaining unit, and the Board has developed a notice which requires employers to provide this list within one day of receiving the certification application.

For those employers not familiar with the certification process and the issues that can arise as part of it, the reduced time frame will be a challenge. As well, employer speech rights have been narrowed so that in communications with employees, a person may only make statements “of fact or opinion reasonably held with respect to the employer’s business.” This restricts considerably an employer’s freedom to express opinions about unions, union affairs or the representation of the employees by a trade union. Essentially employer speech rights have been returned to the level that existed before 2003. As a result, employers and managers will have to carefully re-evaluate their communication approaches (including those of their management staff), especially in the context of a union organizing drive or certification application since improper communications could constitute an unfair labour practice and potentially lead the Board to impose a certification without conducting a vote.

On that point, it is important to note that in addition to limiting employer speech rights, the Code amendments give the Board broader powers to impose a “remedial certification” (i.e., certification without a vote) in circumstances where it finds an employer to have improperly interfered in the certification process and the exercise of the employees’ right of choice. The Board can now grant a remedial certification where it finds it to be “just and equitable” to do so in the circumstances. This mandate is largely undefined and it remains to be seen what it will mean in practice.

The shortened timeframe for a vote, the restriction of employer speech rights, and the expansion of the Board’s powers to impose remedial certification are all intended to reduce potential employer interference in the employees’ right of choice regarding unionization. Consistent with this objective, several other changes to the certification process are notable.

First, it is anticipated union membership cards signed by employees in support of a union will in the near future be made valid for 6 months, which is twice as long as provided under the current Code Regulation. The effect of this is to extend the period of an organizing drive, giving a union more time to elicit support among the employees before making a certification application.

As well, if certification is granted, the amendments to the Code considerably extend the “freeze period” on changing terms and conditions of employment from 4 months to 12 months (if a collective agreement has not been reached in that period). During this freeze period an employer must not change the rate of pay or terms or conditions of employment of employees in a newly certified bargaining unit. The freeze period will also now extend throughout the first collective agreement process under section 55 of the Code until either a collective agreement is reached or there is a strike or lockout or another conclusion of the process under section 55.

In sum, while the requirement of a secret ballot vote has been maintained, there is a broad array of amendments which tighten and strengthen the certification process from a union’s perspective and which correspondingly curtail an employer’s opportunity and right to engage in that process. Employers who may become involved in this process would be advised to prepare for that circumstance in advance, as the tight timelines may make it very difficult, if not impossible, to do so once a certification application is filed.

Changes Affecting Unionized Workplaces

For those already in a collective agreement relationship, there are a number of developments we wish to bring to your attention.

The first change affects all parties to a collective agreement. Section 104 of the Code provides for expedited arbitration. Either party to a grievance can request it be triggered with the result that the grievance must proceed under the expedited arbitration procedures in section 104 rather than the collective agreement’s arbitration provisions. Section 104 has been amended to impose more stringent timelines within which an arbitrator, once appointed, must handle the matter. The arbitrator must:

• conduct a case management conference with the parties within 7 days
• conclude the arbitration within 90 days after the matter is referred to the Director of the Collective Agreement Arbitration Bureau under s. 104;
• if jointly requested by the parties, issue an oral decision within 1 day after the conclusion of the hearing; and
• provide brief written reasons, not to exceed 7 pages, within 30 days of the conclusion of the hearing.

These timeframes are far more rigorous than what was previously required under section 104 and are a marked contrast to current arbitration practices in general, which tend to be lengthy, delayed, and expensive. Clearly these amendments are intended to provide an opportunity for either party in a collective agreement to depart from the current arbitration process in favour of a more timely determination of workplace disputes.

The second major impact of the amendments on unionized workplaces applies only to certain sectors and is aimed at protecting existing collective agreements among the contractors or subcontractors in those sectors. Currently, the sectors involved are:

• building cleaning services
• security services
• bus transportation services
• food services
• non-clinical services in the health sector
• other services which cabinet may prescribe by regulation

In the event that a contract for services in one of these sectors is lost by an employer through re-tendering, the Code amendments mandate that the new contractor will be bound by the collective agreement of the predecessor contractor and/or by all proceedings under the Code.

This change is designed to protect unionized employees’ security and terms of employment in the event of a re-tendering of commercial contracts in the designated service industries. The experience in these sectors has been that employees lose their jobs, their security of employment, their union representation, and their collective agreement wages and benefits when their employer’s commercial contract is re-tendered to another contractor. In many cases the employees are hired by the new contractor to perform the same work but with no recognition of their past service or seniority, with lower wages and benefits, and without their previously chosen union representation and the collective agreement. In some circumstances, particularly in health care, this has occurred repeatedly as service contracts were re-tendered frequently, with great hardship to the employees. The Code amendment is intended to prevent this by imposing a successorship continuing the collective agreement and union representation when a new contractor assumes the services contract for the work in a re-tendering situation. This amendment is effective retroactively to services contracted or re-tendered on or after April 30, 2019.

Consistent with the changes made to the timeframe for certification votes, a corresponding change has been made to the decertification process, where a vote must now be held within 5 business days following the Board’s receipt of a decertification application (a reduction from the previous 10-day time limit). In addition, a decertification application now cannot be made during the 12-month period after a union is certified or there is a failed decertification application (an increase from the previous 10-month period).

Lastly, for parties with existing collective agreements, the amendments provide that if a collective agreement is not filed with the Board within 30 days after its execution, the Board may refuse to consider the collective agreement in any matter before it. This provides an incentive for parties to file their collective agreements.

Conclusion

We have outlined for you what, in our view, comprise the more significant amendments to the Code. There are many other amendments to the Code dealing with a broad range of matters, including: amended time periods for raids by unions seeking to displace other unions; the elimination of education as an essential service; the defining of picketing to exclude leafletting; easier access to relationship facilitators, mediation in respect to adjustment plans and the first collective agreement process, and to settlement officers in respect to grievances under collective agreements; the removal of the strike vote requirement in the first collective agreement, section 55 process; increasing fines for violating a Board order; and other matters under the Code.

We will be monitoring the implementation of these changes to the Code in the coming months and will keep you updated on developments in this area. In the meantime, we would be happy to assist you with any concerns you may have arising from these amendments or any other matter in your workplace.