November 14, 2017
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Examining the many provisions of Bill 148, both in amending the Labour Relations Act and the Employment Standards Act, a “holistic” analysis of the reforms suggests that Ontario’s principal objective is to make it easier for unions to organize and become certified bargaining agents in the Province’s private sector workplaces.
Ontario has for decades adhered to a version of the “Wagner model” of collective bargaining, where employees have a right to select a bargaining agent and have that agent “certified” by the Labour Relations Board. Thereafter, an employer may not bargain directly with an individual employee. The bargaining agent is the sole voice of employees in negotiating terms and conditions of employees under the contract, the “collective agreement.” Unions also have a duty of representation towards employees, in matters under that collective agreement.
The principal distinction between workplaces where a union is present, and those without, is that the union has the statutory right to grieve complaints and to have independent arbitration of unresolved disputes. The other key distinction, typically, is the primacy given to “seniority” among employees. That framework has given rise to standards in unionized workplaces where employers typically have constrained rights to discipline or discharge employees.
Outside of the public sector, unionization rates in North America have declined. Unions have struggled to counter that phenomenon; the Bill 148 amendments can fairly be described as an attempt to make unionization easier and faster in Ontario.
Measures in Bill 148 to assist union organization of employees are not disguised – they get employee lists, easier means of certification and successor rights in certain sectors. Less obvious but likely as significant, measures targeting the temporary help agency (THA) sector may, by inducing the hiring of more “permanent” pools of employees in some companies, create more friendly environments for unions seeking bargaining agent status.
Release of Confidential Employee Information to Union
Trade unions seeking to be certified in a workplace can obtain access to an employee list. The union must show it has support from at least 20 percent of employees in the proposed bargaining unit. Committee amendments to these proposals call for more security measures to protect the privacy of the employees.
For employees, this constitutes a significant release of personal information which will now be considered legally appropriate, because it facilitates union organization. For employers, an application for an employee list will flag that a union is organizing its personnel and show the level of support (but not the identity of supporters). For unions, this greatly simplifies the task of finding employees outside the workplace, to gauge their interest in unionization and to persuade them of its benefits.
Employees in the temporary help, building services and home care and community services industries, will be able to organize a trade union and be certified by the Labour Relations Board through card-based certification – documentary proof that at least 55 percent of those employed in the proposed bargaining unit support the union. No vote will be necessary unless the union’s support stands between 40 and 55 percent.
This makes union organizing in these sectors materially easier than ever before in affected sectors.
Automatic Certification in cases of Employer Interference
Employer interference with the formation of a union shall trigger automatic certification of the union as a remedy and penalty. Section 11(2) of the LRA will say: “Where an employer, an employers’ organization or a person acting on behalf of either contravenes the LRA and either result specified in s11 occurs, the Board shall certify the trade union as bargaining agent.”
Ontario has historically avoided automatic certification as a quick remedy to instances when an employer has been perceived to interfere with employees’ freedom of choice about unionization. This new provision means that certification “shall” occur in such cases.
First Contract “Mediation-Arbitration”
After certification, the LRA will now permit mediation prior to the arbitration of a first contract. Once a mediator is appointed, a 45 day period will follow where a union cannot call a strike.
43 (1) If the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Minister to appoint a first collective agreement mediator. …
43.1 (1) At any time on or after the day that is 20 days after the Minister makes an appointment under subsection 43 (5), if the parties have not entered into a collective agreement, either party may apply to the Board to direct the settlement of a first collective agreement by mediation-arbitration.
Historically the LRA tries to prevent employers from impeding the success of a new union, by creating an option for unions to apply for “first contract arbitration.” That mechanism remains in place but is re-named “mediation-arbitration”, presumably to allow for more flexible ways of adjudicating the first contract.
New section 43(6.1) allows either a union or employer to request “educational support” about collective bargaining. Given that unions are in the business of bargaining, this provision presumably is intended to train employers on how to conduct themselves.
No discharge or discipline without “just cause” after union certified
An employer will need just cause to discharge or discipline an employee during the time period between certification and a first contract.
Section 12.1 If a trade union is certified as the bargaining agent of employees in a bargaining unit, the employer shall not discharge or discipline an employee in that bargaining unit without just cause during the period that begins on the date of certification and ends on the date on which a first collective agreement is entered into.
This significantly reduces an employer’s freedom to operate on a “business as usual” basis. It also establishes a new standard of protection which a union will not be likely to sacrifice in bargaining.
Union Successor Rights in the Building Services Sector
Existing union contracts will carry-over when a new building services provider is engaged.
Section 69.1(1) and 69.2
69.1 (1) This section applies with respect to services provided directly or indirectly by or to a building owner or manager that are related to servicing the premises, including building cleaning services, food services and security services. …
69.2 If the regulations so provide, section 69 applies to such other types of service providers that directly or indirectly receive public funds as may be prescribed, subject to such terms and conditions as may be prescribed.
Where there is a “sale of business” (transfer of ownership by shares or other means from one owner to another), the existing collective agreement stays in place, and becomes applicable to the new owner (the buyer). This was not the case in the building services sector (security, maintenance, cleaning) but under Bill 148, becomes the case.
This will mean that new building service provider companies winning contracts, become automatically bound to the existing employment terms. This all but eliminates the ability of competing service provider companies to obtain a cost advantage through labour cost reductions.
The effects of these changes will be felt most directly in the building services sector itself (in terms of companies’ ability to compete for new contracts) but also in their customer base – every building and property management company in the province, public or private – which will lose flexibility and some leverage when putting these contracts up for tender.
It is also worth noting that employees in these sectors, will experience a loss of workplace democracy, insofar as their opportunity to choose a new union, or re-certify the old union – or go without a union – is eliminated.
Finally it should be noted that the legislation also allows the government to pass regulations extending the application of “successor rights” to any business which provides services to the government.
Employee Protection during and after Strikes / Lockouts
Persons who were on strike or locked-out during a labour interruption, are entitled to be reinstated, displacing others who performed their duties during the labour interruption.
Where there isn’t enough work to return everyone immediately, employees are to be reinstated in accordance with collective agreement seniority or, if that does not apply, service duration with the employer.
No employee can be discharged or disciplined during the strike or lock-out period, without just cause.
These rights are enforceable by a trade union through a grievance and/or arbitration procedure.
These amendments to section 80 of the LRA provide significant protection to workers who are members of bargaining units which experience a strike or lock-out.
It is important to note that every rule which affords additional protection to workers represented by trade unions will make collective bargaining more attractive to people who do not have union representation. That, in conjunction with materially easier and faster certification of bargaining agents, is another advantage afforded to trade unions by Bill 148.
Additional sections in this guide:
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