New rules on union certification for federally regulated employers will take effect June 16, 2015, following the royal assent of Bill C-525.
The legislative amendment substantially alters the process for unions to obtain certification in relation to federally regulated employers. In particular, a union’s ability to obtain certification automatically without a vote has been eliminated under the new rules. Unions will now be required to win a vote before being certified to represent workers.
Under the outgoing regime, union certification can be awarded under Part II of the Canada Labour Code (the Code) where a union presents evidence that more than 50% of employees in a proposed bargaining unit have signed union “cards” and paid for a union membership. Where such evidence could be provided, certification would be automatically granted the union without the need for a secret ballot vote. Only if evidence of union membership is provided of between 35% and 50% of the proposed bargaining unit would a vote be held.
Many other jurisdictions in Canada (including Ontario, British Columbia, Alberta, Nova Scotia and Saskatchewan) hold a secret ballot vote even where more than 50% support is provided. The voting process provides time for employers (and unions) to communicate factual information and educate employees about the meaning of unionization. Automatic certification (certification without the opportunity for a vote) denies employers the opportunity to communicate with bargaining unit employees about their decision before votes are cast.
Bill C-525 has eliminated the automatic card-based certification provisions of the Code. Now, all certifications will involve a secret ballot vote. Such a vote will be triggered where the union adduces evidence that 40% or more of the bargaining unit are members of the union. Where that threshold is met, certification will be issued if a majority vote in favour of the union.
In addition to this significant change, Bill C-525 has lowered the threshold for employees in a certified bargaining unit to trigger a vote on whether they wish to remove their union, otherwise known as de-certification or termination of bargaining rights. Under the outgoing regime, a secret ballot vote on de-certification would be triggered where evidence could be shown that more than 50% of bargaining unit employees no longer wished to have the union represent them.
Under the amended Code, the threshold has been reduced to 40%. If that threshold is met, then a secret ballot will be held and the union can be de-certified if a majority of voters vote against the union. For the vote to be valid, at least 35% of eligible voters must vote.
These changes will be important to federally regulated employers, such as those in the inter-provincial transport, shipping, airline and financial sectors. Employers affected by these changes will have a greater opportunity to voice their views in any certification process brought under the Code. It will be important for employers to be ready to take advantage of these opportunities with campaign strategies where such votes may take place.