After much fanfare and public consultation, the Changing Workplaces Review was released in May 2017. Some 150 pages of that report was devoted to the Labour Relations Act and the mission of reinventing collective bargaining to extend its reach to vulnerable, precarious workers employed in non-standard employment settings and by franchisees of giant multinational corporations.
The Liberals introduced Bill 148 shortly after it released the CWR, which immediately deflected attention away from the experts’ report to the Bill itself. That’s a shame, because there was a lot in the CWR that was of interest and that was summarily dismissed by the government, including a lengthy recommendation for a new model of collective bargaining for franchises. In the end, Bill 148 falls back on the standard approach of tinkering with the details of the Labour Relations Act with the result that it would be foolhardy to believe that the new law will make much difference in terms of extending collective bargaining to vulnerable workers and turning the tide on the ongoing decline of collective bargaining in Ontario’s private sector, which now sits at about 15 percent, down from the mid 20% range in the 1980s (as explained in Chapter 36 of The Law of Work: Complete Edition)
Most attention on Bill 148 has been directed at the increase to a $15 minimum wage. Hardly anyone is taking about the proposed changes to the Labour Relations Act, but there are some interesting little tweaks in Bill 148 relating to the process of unionization. This post reviews some of them.
Exclusions from Labour Relations Act
The first noteworthy item is to note what is not included in Bill 148. The government elected to disregard the CWR report’s recommendation to do away with a bunch of exceptions from the legislation, including the exception for agricultural workers, home workers, and many professionals (including lawyers). The Liberal’s obsession with preventing access to collective bargaining by agricultural workers remains baffling, since as the CWR experts noted, these workers are among the most vulnerable and precarious and are covered by the basic labour legislation almost everywhere else in Canada. The agricultural lobby must carry a lot of weight in the Liberal chambers.
Access to Employee Lists
A large section of the LRA section of Bill 148 spells out the details of a new requirement for employers to provide unions organizing their workers with a list of employees names, emails, and phone numbers. I argued for such rule on this blog years ago and so I think this is a good reform. There is no policy justification for making unions guess the number of employees in a proposed bargaining unit and there are good policy reasons for making it easier for union organizers to communicate with workers during an organizing campaign. The issue was how to ensure unions get this information while also protecting employers from a constant barrage of requests from unions on a fishing expedition to find new members and workers from being harassed by unions who they have no interest in speaking with.
The new law permits a union with at least 20% employee support in a bargaining unit to apply for the list. This ensures that the union has an active campaign underway. There will be disputes at the margins if unions apply with close to 20%, but most often unions will wait until they have a safe margin, such as 30%. The Bill has rules requiring unions to keep the list confidential and to “destroy” it within one year. That will raise some interesting legal arguments, since destroying the “list” will not guarantee that the union hasn’t maintained possession of the information on the list. For example, email addresses and phone numbers may be stored on laptops and in organizers’ smart phones.
Will the Board require personal phones to be wiped? If employees consent to being contacted by the union, perhaps by signing an authorization on the union membership card itself, does that protect the union from future allegations that they are using contact information obtained from “the destroyed list”? These technical questions will need to be sorted out by the Labour Board.
An odd addition to the law, not proposed in the CWR, requires that if a union applies for certification for employees on the list within one year after obtaining the list, then the union can only apply for the same unit that it used in the application for the list. Here’s what the law says:
If a list of employees is provided to a trade union by an employer in compliance with a direction made by the Board under subsection (7), and, within one year after the Board’s direction to provide the list, the trade union makes an application for certification in respect of that employer and employees on the list, the following rules apply: 1. The description of the proposed bargaining unit included in the application for certification must be the same as the description of the proposed bargaining unit that was included in the application for the employee list under subsection (1).
In a relatively small workplace, where the union has a good sense of the unit it would seek to represent, this won’t be a problem. However in a larger unit, say like Toyota, with hundreds of full-time, part-time, and temporary employees, I’m less certain what the law is trying to achieve. Is it that the government doesn’t want unions using the information on the list to help it craft the bargaining unit. Why not?
Consider the following example. Imagine the workplace has 10 job categories (Jobs A to J). The union applies for a list comprising all employees in Jobs A to J. The list itself doesn’t specify job title, so the union now has to spend time and resources investigating in an attempt to piece together who is in what job. If there are 500 or so employees, this could take a while. Why should the law make unions waste time trying to piece together this bland information. Why doesn’t the law just require the employee’s job title? This is a dumb omission and the law should be amended to require the employee’s job title and work location (if there are multiple locations) as well as the contact information.
Now let’s say that the union learns there’s 500 employees in the unit it applied for, and after some investigation, it figures out that 40 of those employees (in say Jobs I and J) are not union supporters and moreover Jobs I and J are such that the labour board would likely agree to carve them out of a unit comprised of Jobs A-H. Maybe Jobs I and J are office jobs and the rest plant jobs, for example. Maybe the union was surprised at how many people were employed in those jobs and that the 40 positions would prevent the union from reaching the 40% threshold to obtain a certification vote.
Normally if a union was in that situation, it would apply for a unit of all employees except employees in Job I and J (and managers, etc) and the Board would decide if that unit was “appropriate”. However, Bill 148 seems to say that the union cannot do that. The union can only apply for a unit consisting of all employees in Jobs A to J, since that is the unit used in the application for the list.
Why is that good labour relations policy? It could prevent some 440 employees in Jobs A-H from having an opportunity to vote on unionization for at least a year. Moreover, if the union believes it cannot win a vote of all employees in Job A-J, it probably wait until the year is up before filing an application for certification for the smaller unit. This drags out the organizing campaign longer than would otherwise be the case. Who does that benefit.
Consider another scenario. Bill 148 does not appear to restrict a union from applying for more than one list. Therefore, what if our union just submits a second application for a list of employees, this one for all employees except those employed in Jobs H and I (and managers). Is there something in the law that would require the Board to dismiss this second application, or would the Board order the new list, which overlaps but is smaller than the first list. Can the union submit two applications at once, seeking information from two different units? What part of Bill 148 prevents that? Armed with a new list for all employees in Jobs A-J, can the union now file an application for certification for that unit, since it is “same” unit as applied for in the second application for a list of employees?
As you can see, this new list law will require some litigation to sort out.
Combination of Bargaining Units and Restructuring of Units
The Liberals ignored the CWR expert’s recommendations for a new system of bargaining for franchises. However, Bill 148 does re-introduce a form of law originally developed by the Ontario NDP party back in the 1990s. This permits unions to apply to the Board to have multiple units of the same employer combined into one bigger unit.
This was a useful law for unions, particularly in the retail sector. I spent a summer as
a baby lawyer representing a retail union back in 1993 applying for consolidation of a bunch of Bay stores and other retailers. Rather than have to bargain 6 different collective agreements for six stores, this law permitted the union to have all 6 stores brought under one collective agreement. This increased the power of the union in bargaining, since a threatened strike at 6 stores is more worrisome than a strike at a single store.
Bill 148 instructs the Board to consider whether consolidation or re-structuring of bargaining units would “contribute to the development of collective bargaining in the industry”. The ability to consolidate units does this because it permits unions to organize store by store, workplace by workplace, but then sweep new stores and workplaces into existing collective bargaining agreements. However, the law is limited because it applies only to single employers and therefore will have limited effect in the case of franchisees owned by different people or companies. When the anti-collective bargaining Mike Harris Conservative government was elected in the mid-1990s, they immediately “de-consolidated” all the units that had been consolidated. A similar thing could happen this time if the Tories are elected and employers lobby them to undo Bill 148. So this change, like all the Bill 148 changes, may be temporary.
Card-Check for a Few More Industries
The CWR did not call for a return to card-check certification, which is a system of measuring majority support more favourable to unionization than the two-step mandatory ballot model presently in effect for all but the construction industry. Bill 148 would extend card-check certification to the “building services”, “home care and community services” and the “temporary help agency” industries.
It is hard to make sense of the Liberal’s position on card-check certification. Obviously, since four industries would now have card -check certification, the Liberals are not opposed to card-check as a system of measuring majority support. The government does not accept the simplistic business and Conservative argument that the ONLY fair way to measure majority support is through a ballot taken after the employer has had an opportunity to campaign against unionization.
Yet rather than just use card-check as the model in Ontario, the government has moved forward with its piece-meal approach. It’s hard to identify any rationale for using card-check in these four industries and not in, say, the restaurant sector, where violations of the ESA are rampant, or the broader retail sector, which is only about 12 percent unionized and where thousands of low paid, vulnerable, precarious, nonunion workers are employed. If a Tim Horton’s franchisee is using workers supplied by a temp agency, those workers can unionize using the one-step card-check model, but the direct employees of the franchisee working beside them are governed by the mandatory two-step ballot model.
Is there any policy logic to this bifurcated model?
Personally, I think the Liberals should have re-introduced card-check across the board but with a higher threshold than 55 percent, say 60 or 65 percent. The rationale is that in my experience, if a union applies with greater than 60 or 65 percent support, they virtually always win the vote absent an employer unfair labour practice. Therefore, where a union applies with 60 or 65% support, it is a waste of time, taxpayer money, and scare labour board resources to require a vote as well. A certification vote would still be used in cases where the union applies with between 40% and 60 (or 65%). This model is used in New Brunswick and has been used in other provinces in the past.
New Just Cause Provision During Organizing Campaign
A new section prohibits termination or discipline of an employee without just cause from the date a union files an application for certification until the a collective agreement is concluded or the union ceases to represent the employees. This section eliminates the need for a union or worker to demonstrate anti-union animus during this limited period and so extends the reach of existing unfair labour practice provisions.
Remedial Certification and First Contract Arbitration
Bill 148 extends the reach of remedial certification, which means an order that the union be certified as a penalty for an employer unfair labour practice that destroys the opportunity to hold a fair vote. The Bill repeals the present Sections 11(2), (3) and (4) and replaces them with a non-discretionary requirement that the Board “certify the union” where an employer unfair labour practice interferes with the ability to otherwise test the true wishes of the employees.
The Bill also makes access to first contract arbitration easier. The law permits either party to apply for first contract med-arb after a short period of mediation has concluded. Med-Arb must be ordered unless the party requesting it engaged in bad faith bargaining or otherwise took an “uncompromising position” in bargaining without “reasonable justification. This new law will help unions obtain first collective agreements, which has always been a serious obstacle to creating a sustainable bargaining relationship.
Rights of Employees During and Following a Work Stoppage
The Bill eliminates the long standing and unusual cap on the reinstatement rights of strikers at 6 months (which I and many others have long called for) and also introduces a statutory right to take any dispute about that reinstatement to arbitration. A new Section 80.1 also introduced a new statutory just cause requirement for discipline and discharge of a striking or lockout employee. That too can be enforced under the new collective agreement. These provisions together address the problem of employers resisting the reinstatement of employees after a work stoppage, which tends to exasperate and prolong the work stoppages. A prime example if the recent years long strike at Crown Holdings, which dragged on in now small measure because of the employer’s insistence that it be permitted to cherry-pick which employees would get to return to work after the strike ends.
The Liberals set out to consider how reforming the ESA and LRA could address growing precarity in the changing labour market. Most attention has been directed at reforms to the ESA. Frankly, I am skeptical of the ESA as a tool for revolutionizing labour protections for vulnerable workers because of the high levels of non-compliance and the propensity of vulnerable employees to not file ESA complaints.
Since ESA compliance is almost 100% in unionized workplaces, an obvious way to improve ESA compliance is to encourage the spread of collective bargaining. The Bill 148 reforms to the LRA go a little way towards that objective, but with little enthusiasm. I would describe the Bill 148 LRA reforms as just more tinkering of the sort we have seen many times before. If the CWR was the “once in a lifetime opportunity to re-imagine work law”, as many claimed, then it is difficult to conclude other than this was an opportunity missed.
Comments as always are welcomed.