British Columbia’s labour code: it’s not broke, so don’t fix it

For those old enough to remember, there was a time when the evening news routinely covered major strikes in the province.

Labour disputes were common in the 1970s and 1980s. A few decades later, strikes and lockouts are relatively rare. Indeed, on any objective assessment, the overall state of labour-management relations in B.C. today is quite healthy.

Part of the reason is the provincial labour code. It has provided a well-balanced labour relations framework. The last major redraft of the code occurred in 1992, following a period of unrest fuelled by 1987 legislative amendments that labour leaders saw as an attack on the legitimacy of unions.

The 1992 redraft, which was preceded by extensive consultations, set the stage for a long period of labour relations stability, especially in the private sector. Some amendments to the code were made in 2002, but much of the 1992 legal regime has remained intact.

The B.C. labour code regulates the interactions between employers and unions, including procedures and requirements for a union to organize a workplace, rules for strike action, whether an employer can use replacement workers, successorship rights when businesses are sold and much more. The code and the decisions that flow from it have wide-ranging implications for the B.C. economy and the investment climate.

The BC NDP government recently established a panel to review the labour code. This suggests the government believes that major problems exist that require significant legislative changes, although so far government ministers have identified none. The panel’s mandate is to ensure that “workplaces support a growing, sustainable economy with fair laws for workers and businesses.” Panel members are also instructed to promote “certainty as well as harmonious and stable labour/management relations.” Arguably, this is what we already have in B.C., under the current system.

One important section of the code outlines the rules for certification – i.e., how a union becomes the representative agent to bargain on behalf of employees. Today, certification is a two-step process. A union first must show that its certification drive has support by getting 45% of the employees in the particular workplace to sign membership cards. Once this has been done, a secret- ballot vote is held so employees can determine if they want the union to represent them. A workplace is formally certified when more than half of the employees vote yes.

The labour movement wants the secret-ballot vote eliminated and replaced with a “card check” system. This would result in automatic certification once a certain proportion of employees have signed union membership cards.

Union leaders are keen to scrap the secret ballot because they believe it is easier to unionize a workplace if organizers only need to collect a sufficient number of signed cards. However, the proper goal of sound labour legislation is not to lower the bar for certification or to encourage or thwart unionization. Instead, it is to ensure that workers are free to decide. We do not see how a card-check system, where union organizers know in advance exactly who has or has not signed cards, would be fairer than a secret-ballot vote. A secret ballot allows individuals to choose, without fear of reprisal or intimidation. This aligns with the fundamental principles of democratic decision-making. A card-check system does not.

There have been over two decades of judicial decisions since the 1992 code was enacted enshrining the right to unionize and freedom of association. This freedom, however, also extends to the freedom not to associate. Of interest, while the labour movement champions a card-check regime for organizing workplaces, the BC Federation of Labour uses a secret ballot to elect its president and other executives. Most of its affiliated unions do the same when selecting their senior officers.

Another element of the code that some unions would like to change relates to sectoral bargaining. Here, the idea is that a single collective agreement covering a defined sector, such as fast-food outlets, becomes the agreement for all subsequent workplaces certified in that sector. There is strong opposition to this model in the business community. Mandating sectoral bargaining would conflict with the fairness principle, because it would remove any control a newly certified business might have over the terms and conditions of employment.

There are other changes to the code that the labour movement advocates to enhance unions’ bargaining power and foster more certifications. From our perspective, B.C. legislators would be wise to stick with the current balanced regime that has served the province well. Introducing substantial changes would run the risk of destabilizing labour relations and discouraging new investment and business growth.  

Jock Finlayson is the Business Council of British Columbia’s executive vice-president and chief policy officer; Ken Peacock is the council’s chief economist. The authors thank Tom Roper of Roper Greyell for helpful input in developing this column.