B.C.’s labour relations code was amended in May 2019 following the appointment of a panel tasked to review the legislation and following a comprehensive consultation process that invited businesses, organized labour and other members of the public to provide input on desired changes.
Now that British Columbians have provided the BC NDP with its first majority government in nearly two decades, there is reason to believe – despite the recent changes to the labour code – the government will make further amendments. Premier John Horgan, for instance, in his mandate letter to Harry Bains, B.C.’s minister of labour, stressed the need to “ensure that every worker has a right to join a union and bargain for fair working conditions.”
There is growing speculation that the government intends to allow unions to certify workplaces through a “card-check” model rather than via the present secret ballot.
Premier Horgan promoted card-check certification in the NDP’s 2017 election campaign, but former BC Green Party Leader Andrew Weaver had also promised to bring down the former coalition government if card-check was proposed in any legislation.
Card-check certification did not find its way into the 2019 labour code amendments.
Card-check certification allows a union to automatically certify a workplace upon convincing the majority of employees to sign cards favouring union representation, sometimes even without an employer’s knowledge.
The card-check model is often criticized because individual employees are forced to openly declare whether they favour union representation so there is potential for employees to face undue pressure to sign union cards. In addition, employers have no ability to provide potentially relevant information to the workforce prior to certification under the card-check model.
In contrast and at present, a union is able to certify a B.C. workplace only following a democratic process where both the union and the respective employer provide information and where employees then use a secret ballot to vote either in favour or against union representation.
With secret ballots, employees who have signed union cards can still vote for or against the union in anonymity.
Employers are also restricted in the ways in which they can engage with the workforce and are prohibited from using intimidating or coercive tactics to protect the free will of employees to decide whether they want union representation.
While the government was not able to introduce card-check certification in the last round of labour code changes, it extended the validity of a signed union card to six months from 90 days. If card-check certification is now introduced, unions will have a six-month window to lobby enough employees to sign union cards to certify a workplace.
It is less clear what other changes the government may propose to alter B.C.’s labour relations landscape, but the BC Federation of Labour’s (BCFL) feedback in the most recent consultation process provides some insight into the remaining concerns of the organized labour community.
The BCFL in particular recommended an expansion of the labour code’s successorship provisions to capture more workplaces. Any such legislative amendments would effectively mean that more service providers would inherit the workforces and collective agreements of their predecessors.
The BCFL also recommended that the government establish a commission tasked with creating a scheme for sectoral, multi-employer collective bargaining. In its most basic form and in contrast to decentralized or one-to-one bargaining, sectoral bargaining requires any employer and any union operating in a particular industry to abide by an industry-standard collective agreement.
While it did not list the sectors of B.C.’s economy that required examination, it suggested the commission should consider workers facing precarious employment.
The introduction of card-check certification would have a significant impact on labour relations in this province. It appears to be the most likely change to the labour code in the current term of this NDP government. It will be interesting to see if the government uses a consultation process akin to the one in 2018-19 to ensure all interested parties have an opportunity for input on any proposed changes, or whether changes will be introduced without significant debate. •
This article is for general information purposes only and does not constitute legal advice.
Danny Bernstein (partner) ([email protected]) and Bobby Sangha (associate) ([email protected]) of Roper Greyell LLP practise in all areas of employment, labour, and human rights law.
