Overview

On October 23, 2018, the Ontario Government announced its much anticipated legislation in relation to employment and labour law matters. The legislation, dubbed the Making Ontario Open for Business Act, 2018 (Bill 47), will remove or modify many of the obligations placed on Ontario employers by way of the Fair Workplaces, Better Jobs Act, 2017 (Bill 148). Please see the summary below for an overview of the changes to the Labour Relations Act and the table thereunder for a more thorough review. For the Ontario Ministry of Labour’s Backgrounder on the issues, please click here. For the full text of Bill 47, please click here. For an overview of changes to the Ontario Employment Standards Act, click here:

Summary of Changes – Labour Relations Act

Alternate Certification Removed

  • The alternate certification process in the building services industry, the home care and community services industry and the temporary help agency industry will be repealed.

Employee Lists

  • Trade unions will no longer be able to obtain a list of the employees or their contact information from an employer.
  • Upon coming into force, a trade union will be required to destroy any employee list obtained under the previous section that allowed for a trade union to obtain an employee list.

Remedial Certification

  • The pre-Bill 148 test and preconditions for the Ontario Labour Relations Board (“OLRB”) to certify a union as a remedy for employer misconduct will be reinstated. Certification in the event of contraventions will only be available if no other remedy would be sufficient to counter the effects of the contravention.

Structure of Bargaining Units

  • The OLRB will no longer be able to review and consolidate newly certified bargaining units with existing bargaining units.
  • However, the OLRB will be able to review the structure of the bargaining unit if an application is made requesting the review and the board is satisfied that the bargaining unit is no longer appropriate for collective bargaining.

Reinstatement of Employees After Strike

  • The Act will be amended to provide for reinstatement of an employee if an application is made within six months following the commencement of a lawful strike.

First Contract Mediation and Mediation-Arbitration Removed

  • Bill 47 will repeal the provisions requiring first collective agreement mediation and mediation-arbitration in any circumstance.
  • First collective agreement arbitration will be implemented in their place, under similar rules prior to Bill 148 (The OLRB will consider, upon application, any reasonable justification for the uncompromising nature of the parties, the failure to make reasonable efforts to agree, or any other reason the Board considers relevant, before requiring arbitration).

Penalties

  • The government will be returning to the previous maximum fines for offences under the Act by decreasing the fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.

Table of Changes

Subject Matter Current Entitlement under the Labour Relations Act New Entitlement (Bill 47, once enacted)
Union Certification Card-based certification introduced for home care and community services industries, building services industry, and temporary help agency industry Repeals card-based certification. Regular certification rules will apply in each of these industries
Remedial Certification If an employer contravenes the LRA and, as a result, the true wishes of employees in the bargaining unit were not likely reflected in the representation vote, or the union was unable to obtain membership cards from at least 40% of the proposed bargaining unit, the OLRB must certify the unit This power is being repealed to restore the pre-Bill 148 test and the original preconditions for the OLRB to certify a union as remedy for employer misconduct are reinstated (that there may be remedial certification is only available if no other remedy would be sufficient to counter the effects of the contravention)

 
First Collective Agreement Mediation In addition to arbitration, the LRA now provides for first collective agreement mediation where the parties are unable to effect a first collective agreement. Where the first collective agreement mediation is unsuccessful, the LRA provides for mediation-arbitration. First collective agreement mediation and mediation-arbitration are repealed

First collective agreement arbitration, in accordance with pre-Bill 148 is restored
Employee Lists If a union can establish at least 20% support of the employees involved, then it will be granted access to a list of employees and certain contact information. The list must include employee names, phone numbers and personal email addresses if the employee has provided that information to the employer. Trade unions can no longer obtain a list of the employees or their contact information from an employer

Upon coming into force, a trade union must destroy any employee list obtained under the previous section that allowed for a trade union to obtain an employee list
Educational Support Parties can request educational support in the practice of labour relations and collective bargaining This will be repealed
Successor Rights Successor rights will be extended to the retendering of building services contracts. The government will also be able to apply expanded successor rights by regulation to the retendering of other contracted services that are publicly funded. This will be repealed
Voting The OLRB may direct that voting take place outside of the workplace and may also permit that voting take place electronically and/or by telephone This remains the same
Just Cause Protection Employees will be protected from discipline or discharge without just cause in the period between certification and the parties’ conclusion of a first contract, as well as between the date of a legal strike or lockout and the date of a new collective agreement. This remains the same
Review of Bargaining Unit Structure An employer or union will be permitted to apply to the OLRB to review the structure of a bargaining unit after certification (but prior to entering into a collective agreement) and consolidate it with another bargaining unit at the employer already certified and represented by the same union This will be repealed, however, the OLRB may review the structure of a bargaining unit if an application is made and the board is satisfied that the bargaining unit is no longer appropriate for collective bargaining
Reinstatement of Employees after Strike An employer will be obligated to reinstate an employee at the end of a legal strike or lockout on such terms as the employer and union may agree upon. Will restore the pre-Bill 148 which provides for reinstatement of an employee if an application is made within six months following the commencement of a lawful strike
Notices and Communication Notice and communications have to be by mail For any proceeding under the LRA, any notice or communication will be able to be sent by mail, courier, fax, or email
Penalties and Fines Increasing the maximum penalties under the LRA to $5,000 for individuals and $100,000 for organizations Will restore the pre-Bill 148 maximum penalties of $2,000 for individuals and $25,000 for organizations