Introduction
On April 30, 2019, BC’s Labour Minister, Harry Bains, introduced proposed changes to the Labour Relations Code (the “Code”). Although the Minister touted the changes as aimed to ensure stronger protection of collective bargaining rights and promote more durable labour relations between employers and unions, the proposed changes are clearly labour friendly.
Bill 30, Labour Relations Code Amendment Act, 2019 underwent first reading April 30, 2019 and second reading May 14, 2019.
Below is a summary of the key proposed amendments to the Code.
Definition of Picket and Picketing
The amended definition of picket or picketing specifically excludes consumer leafleting that does not unduly restrict access or egress to a place of business. This would put the Code in compliance with the Supreme Court of Canada decisions in UFCW, Local 1518 v. Kmart Canada Limited, [1999] 2 S.C.R. 1083 and R.W.D.S.U., Local 558 v. Pepsi-Cola Canada [2002] 1 SCR 156, that allowed the union to engage in peaceful picketing and leafletting at secondary locations providing there was no intimidation and free access to the premises was permitted.
Unfair Labour Practice
Bill 30 proposes to add section 14(4.1) that would allow the Labour Relations Board (the “Board”) to certify a trade union where the employer has engaged in an unfair labour practice and the Board believes it is just and equitable. Further, the trade union may be certified without requiring evidence it was likely to succeed through the removal of section 14(4)(f).
Successor Rights and Obligations
The proposed amendments include a new provision under section 35 requiring that when a contract for services is retendered, and substantially similar services continue to be performed, in whole or in part, under the direction of another contractor, then the contractor is bound by all proceedings under the Code before the date of the contract for services was entered into by the contractor. In addition, the proceedings must continue as if no change had occurred, and any collective agreement in force continues to bind the contractor to the same extent as if it had been signed by the contractor. The retendering provision would be limited to contracted services for:
- building cleaning services;
- security services;
- bus transportation services;
- food services;
- non-clinical services provided in the health sector; and
- other services that the Government may prescribe by Regulation.
Practically what this means is that where a contracted service provider is unionized, the certification and any collective agreement in force, will bind subsequent contractors thereby attaching the certification and the collective agreement to the contract and not the contractor.
Right to Communicate
The right to communicate as it currently reads allows an employer the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion. However, the suggested amendments would restrict employer communication to a statement of fact or opinion reasonably held with respect to the employer’s business. This is a significant departure and will impact employers with respect to negotiations, certification and decertification.
Representation Vote Required
The proposed amendment reduces the time to conduct a representation vote from within 10 days to within 5 business days of the application. A business day means a day other than Saturday, Sunday or another holiday. Similarly, the time to conduct a representation vote for decertification has been changed from within 10 days to within 5 business days of the application. In addition, it is proposed that an application to decertify be moved from 10 months after certification to 12 months.
Notice to Bargain Collectively
The proposed amendments extend the time frame after certification where an employer may increase or decrease the rate of pay of an employee in the bargaining unit or alter another term or condition of employment. This time frame as been extended from 4 months to 12 months. Furthermore, if the parties do not reach a collective agreement within the 12 months, then the time frame is extended beyond the 12 months until the conclusion of a collective agreement.
Copies of Collective Agreement to be Filed
Currently, each of the parties to a collective agreement must, within 30 days after its execution, file a copy of it with the Board. This rarely occurs and has not been enforced. As a result, the proposed amendments require the parties to file a copy of a collective agreement, within 30 days after its execution, or the Board may decline to consider the collective agreement in any proceeding before the Board.
First Collective Agreement
The current Code allows, where the parties have failed to reach a collective agreement, for either party to apply for the appointment of a mediator where the majority of employees in the bargaining unit have voted in favour of a strike. The proposed amendments would allow either party to apply for the appointment of a mediator to assist in negotiating a first collective agreement. In addition, the amendments allow the mediator to consider the parties conduct before and after certification.
Adjustment Plans
The employer and trade union must meet, in good faith, to develop an adjustment plan where the employer introduces or intends to introduce a measure, practice or change that affects the terms, conditions or security of employment of a significant number of employees. The proposed amendments would allow for the appointment of a mediator to assist in developing an adjustment plan. Furthermore, if the parties have not agreed on an adjustment plan, the mediator may make recommendations for terms of the adjustment plan.
Essential Services
The proposed amendments remove the provision of educational programs to student and eligible children under the School Act as an essential service.
Industry Councils
The proposed amendments would repeal the current section 80 and permit an industry council to recommend measures to achieve more effective collective bargaining and procedures for settling disputes, identify skills and training needs, health and safety issues, competitive and productivity challenge, develop labour market information and marketing initiatives, and make recommendations considered necessary to advance the industry.
Settlement Officer
Currently, after the completion of the steps of the grievance procedure preceding a reference to arbitration, and within 45 days, either party may request that the director appoint a settlement officer. The proposed amendments remove the 45-day time limitation to request the appointment of a settlement officer.
Case Management Conference
The proposed amendments introduce the provision of a case management conference. Section 88.1 requires that within 30 days of the appointment of an arbitration board, the arbitration board must conduct a case management conference to schedule the exchange of information and documents, schedule hearing dates, and encourage the parties to settle the dispute.
Appeal jurisdiction of the Court of Appeal
The jurisdiction of the Court of Appeal will be narrowed through the proposed amendments. Specifically, the Court of Appeal may review the decision or award if it does not fall within the jurisdiction of the Labour Relations Board and if the basis of the decision or award is a matter or issue of the general law and unrelated to a collective agreement, labour relations or related determinations of fact.
Expedited Arbitration
The proposed amendments reduce the time to refer a difference to the director for expedited arbitration from within 45 days to within 15 days of the completion of the steps of the grievance procedure preceding a reference to arbitration. Furthermore, the arbitrator is required to conduct a case management conference within 7 days of being appointed, conclude the arbitration within 90 days of the issues reference to the director, issue an oral decision within one day of the conclusion of the hearing if requested jointly be the parties and issue a decision with written reasons not exceeding 7 pages within 30 days of the conclusion of the hearing.
Display or Provision of Information
Proposed new section 123.1 adds that the Board must make information about rights and obligations under the Code available to the public. In addition, the Board may direct an employer to display or make available, information about rights and obligations under the Code and the information displayed must be in the form provided or approved by the Board.
Penalties
Where a person refuses or neglects to observe or carry out an order made under the Code, the proposed amendments increase the liability on conviction to an individual from $1,000 to $5,000 and to a corporation from $10,000 to $50,000.
Final Thoughts
The proposed changes are slanted heavily in favour of labour. Employers should keep these proposed changes in mind when considering current and future actions.
In particular, the proposed changes to the Right to Communicate and Unfair Labour Practices would appear to create greater incentive to allege Unfair Labour Practice during a certification, especially as it pertains to employer communication, when the Board can certify a trade union where the employer has been found to engage in unfair labour practice and the Board believes it is just and equitable without requiring evidence the union was likely to succeed in its certification vote.
Of note, the Labour Relations Code Review Panel was split on whether to retain the current system of a a secret ballot vote or reinstate the previous “card check” (signed membership cards) system. In the end, it was recommended that there be no changes to the current system and the secret ballot vote be retained provided there are sufficient measures to ensure the exercise of employee choice is fully protected and fully remediated in the event of unlawful interference.
In addition, with the proposed removal from the Code of education as an essential service, and the contentious negotiations between the BCTF and the NDP Government, the potential for full scale job action looms over parents and schools for next year.
We will keep you appraised as this Bill moves forward. Buckle up.