Written by Michael J Weiler

As noted in our last blog email, the NDP was inexplicably sitting on the Labour Relations Code Review Panel’s Report dated August 31st, 2018 (“Report”).  The Report was finally released on October 25th, 2018.  Links to the Report and the Minister’s Press Release are located at the end of this article.

The Panel made 29 recommendations for changes to the Code on various subjects.  Many of the changes, if accepted by the government, will make it much easier for unions to obtain certifications.  The changes are intended, for the most part, to enhance union rights and protections.

The most notable changes recommended are:

  1. Keeping the secret ballot vote but shortening the time within which a vote must be held to 5 business days from receipt of the application for certification from the existing 10-day period.  Note that: (a) the union representative on the Panel dissented on this recommendation, arguing that a card-based certification system should be reinstated; and (b) the shortened time frame will limit the employer’s ability to communicate effectively with its employees prior to the vote.
  2. Amendments to sections 6(1) and 8 of the Code to reverse the changes made by the Liberals in 2002 which will significantly restrict employer free speech—it is “déjà vu all over again”.
  3. Widening of the Labour Relations Board’s discretion to order automatic remedial certification without a vote.
  4. Changes to the successorship provisions in the Code to prevent employers from avoiding collective agreements where there has been a re-tendering of contracts in the following sectors: (a) building cleaning, security, and bus transportation; and (b) the health sector including food, housekeeping, security, care aides and long-term or seniors care. In order to prevent employers from cancelling contracts prior to the change in legislation, the Panel recommends that these changes be made retroactive.
  5. An extension of the freeze provisions after certification to 12 months from the current 4 months.
  6. A change to the definition of picketing to remove consumer leafleting.
  7. An Increase in fines for a refusal to obey a Board order from $1,000 to $5,000 for individuals, and from $50,000 to $100,000 for organizations.
  8. An increase in funding to the Board.

The Panel noted many areas where changes should be made, but only after further review.  Consequently, the Report is incomplete in many respects.  The areas where the Panel identified a need for further review and change include: (a) multi-employer certification; and (b) sectoral bargaining.  While these areas are separate and distinct, changes to either, or both, could have a significant, negative, impact on employers.

The Panel also recommended that an industrial inquiry commission be appointed to review the forest industry. Kicking these and other cans down the road will create further uncertainty and concern for employers in these sectors.

One key item that was left unchanged is section 68 of the Code, which significantly restricts the otherwise legitimate use of replacement workers during a strike or lockout.  The Panel concluded that the provisions in the Code relating to picketing and replacement workers comprised a ”package” when introduced and, consequently, no change in either provision was needed (except for the definition of the term “picketing” described in paragraph 6 above).

Feedback on the Report must be provided by November 30th, 2018.

Changes will be made to the Code in the 2019 Spring session.  I suspect that many of the 29 recommendations will be implemented, as they are, for the most part, unanimous recommendations.  The wild card may still be whether the Minister ignores the majority’s recommendation to retain the secret ballot vote.   Employers should plan now to be prepared for any changes that might be made in 2019.  I would be glad to work with you to assess what steps you might want to take in advance of any legislative changes.

We will keep you posted.

Labour Code Panel Report

Press Release Minister of Labour