Labour code changes would shift balance in favour of unions

On October 25, the B.C. government released the long-anticipated report on proposed Labour Relations Code changes.

The three-person panel appointed in February 2018 to conduct a public consultation on the changes recommended 29 amendments to the code. 

The report synthesizes submissions made by stakeholders from across the labour spectrum and attempts to balance the interests of unions and employers. The significant recommended changes include:

Restrictions on employer free speech. The report recommended a return to the employer free-speech framework as it was prior to amendments made to the code in 2002. Employers would be limited to “statements of fact or opinion reasonably held” rather than the current, broader standard, which protects all views, provided those views do not amount to “intimidation or coercion.” The report also recommended removing protected employer speech as an exception to what would otherwise be an unfair labour practice.

Easier remedial certifications. Unions often seek remedial (automatic) certifications as a remedy for unfair labour practices, but are rarely awarded by the board. The report recommended lowering the threshold for a remedial certification.

Maintain the secret-ballot vote. While the three-member panel was divided, a majority recommended that the current secret-ballot vote framework for certifications be maintained. One panel member dissented and recommended a return to card-based certification without a vote. Given the provincial government’s views on card-based certification, the future of the secret-ballot vote in B.C. is uncertain.

Changes to certification timelines. The report recommended shortening the time between an application for certification and the certification vote from 10 days to five days, which would provide less time for employers to communicate with employees in advance of a vote. Currently, union membership cards are valid for 90 days. The report would extend that to six months. Both timeline changes benefit unions in the course of an organizing drive.

•Changes to union raids. The report recommended significant changes to the rules that apply when one union attempts to raid another. Unions would be able to raid only in the seventh and eighth months of the third year of a collective agreement and every year thereafter until expiry of the agreement in the case of longer agreements. Raids in the construction industry would be limited to July and August.

•Significant changes to union successorships. As it stands now, a successor union inherits the existing collective agreement. The report recommended that, where a change in union representation occurs, and where there are more than two years remaining in the existing collective agreement, the successor union may give three months’ notice to the employer and apply to the board to renegotiate the existing agreement.

•Significant changes to employer successorships. Successorship provisions would be broadened to include re-tendering of contracts in certain “precarious” industries, including “building cleaning, security or bus transportation” as well as various support services in the health sector.

•Significant changes to Section 54. Presently, employers are required to give 60 days’ notice to a union in advance of any change that will affect a significant number of employees in the bargaining unit. If adopted, the proposed changes would allow either party to refer the adjustment plan to a board mediator, who would have investigative powers and the authority to issue non-binding recommendations.

•Changes to first collective agreement mediation and arbitration. Presently a strike vote is required before a union can apply to the board for mediation (and potentially arbitration) of a first collective agreement. The report proposed removing that requirement. In the case of remedial certification, meditators would be permitted to take into account the conduct of an employer that led to remedial certification.

•Education no longer an essential service. The report recommended removing the education sector as an essential service. In the view of the panel, including all education as an essential service is overbroad. If this recommendation is adopted, the public should expect more labour unrest involving teachers, especially teachers of younger students whose services the report implicitly views as being further from the core of a true essential service.

•Changes to expedited arbitration. The report recommended changes to the expedited-arbitration provisions of the code (Section 104) designed to increase the efficiency and expediency of the process.

While many of the proposed changes are incremental, on balance the report’s recommended changes represent a shift in favour of unions. It remains to be seen to what extent the provincial government will adopt the foregoing changes or other changes not in the report. Additional consultations with key stakeholders will also be undertaken as government prepares amendments to the code next spring.

Michael Kilgallin is a partner at Roper Greyell LLP.