The Fair Workplaces, Better Jobs Act, 2017 (Bill 148) includes a number of union-friendly changes to the certification process in Ontario. If implemented, the Bill 148 amendments could increase the number of union drives and successful applications for certification. None of the proposed changes affect the construction industry.
Currently under the Labour Relations Act, 1995 (LRA), a union can apply for certification if at least 40% of employees in the proposed bargaining unit are members of the union. An employer has two business days after receiving the union’s certification application to deliver a response. The Ontario Labour Relations Board (the “Board”) holds a secret-ballot representation vote five business days after the union files its certification application. The union is certified if at least 50% of employees in the proposed bargaining unit vote in favour of the union.
Bill 148 will make it easier for unions to reach the 40% threshold to apply for certification. If a union can show that at least 20% of the employees in the proposed bargaining unit are union members, the union can apply for an order that an employer provides it with a list of its employees. The Board will make such an order if at least 20% of the employees in the proposed bargaining unit are union members. If such an order were made, an employer must provide the name of each employee as well as the phone number and personal email of each employee if employees have provided that information to the employer.
Bill 148 gives an employer only two business days to file a response if it disagrees with the union’s description of the proposed bargaining unit or estimate of employees in the application. The Board must decide these issues before ordering an employer to provide the union with a list.
The LRA currently mandates a vote-based certification, except in the construction industry in which there is card-based certification, where a union is certified without holding a representation vote. Bill 148, if passed, would extend card-based certification to the temporary help agency industry, home care and community services industry and building services industry in certain circumstances. The building services industry is broadly defined to include cleaning services, food services and security services to or by a building owner or manager. Under Bill 148, to apply for certification in these industries the union would only have to show that at least 40% of the employees in the proposed bargaining unit are members of the union. The Board must order a representation vote if 40-55% of the employees in the proposed bargaining unit are members of the union. If over 55% of the employees are members of the union, the Board would have the discretion to either order a representation vote or certify the union as a bargaining agent. Where the Board directs a representation vote, the vote would take place within five business days of the order.
Non-unionized employers in the temporary help agency industry, the home care and community industry and the building services industry will need to be vigilant about what is going on in their workplace. Once there is a union drive in these workplaces, Bill 148 will make it much easier for unions to certify.
Finally, under the current LRA where the Board determines that an employer has conducted an unfair labour practice which interfered with a union’s and employees’ rights under that Act, the Board may order a vote (or a second vote if a vote has already been held), or order remedial certification in which the union is certified without a vote. By contrast, Bill 148 would require the Board to order a remedial certification if it finds that an employer has committed an unfair labour practice.
Bill 148 passed First Reading on June 1, 2017 and, in an expedited process, was referred to the Special Committee on Finance and Economic Affairs the same day. The Special Committee has since posted a Notice of Public Hearings on Bill 148 to be held:
- The week of July 10, 2017 in Thunder Bay, North Bay, Ottawa, Kingston, and Windsor-Essex. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 4, 2017.
- The week of July 17, 2017 in London, Kitchener-Waterloo, Niagara, Hamilton, and Toronto. Those planning to make an oral presentation in any of these locations must provide their name and contact information to Committee Clerk by 10:00am on July 10, 2017.
Alternatively, written submissions may be sent to the Special Committee by 5:30 pm on July 21, 2017.
This gives employers and other stakeholders a final chance to have their voices heard on the Bill 148 amendments.
If you have questions or concerns about these or any of the Bill 148 amendments to the Ontario labour and employment laws do not hesitate to contact the Norton Rose Fulbright Canada Labour and Employment Team.
Written with Rebecca Liu.