On June 16, 2015, Bill C-525, commonly known as the Employees’ Voting Rights Act (“EVRA“), will come into force. EVRA will make some minor, but impactful, changes to the processes in which unions gain and lose bargaining rights in the federal public sector.

The Current “Card Check” System

Currently, a union can become certified by submitting an application which includes sufficient membership evidence. A union can prove an employee’s membership by submitting documents to show that an employee has applied for membership in the union and paid the minimum fee for union dues. Signed union cards are the most common form of such evidence. Depending on the level of support, the Canada Industrial Relations Board can proceed in one of three ways:

  • if the union’s evidence demonstrates less than 35% support, the Board will dismiss the application;
  • if the union can evidence more than 35% support but less than 50%, the Board will order a representation vote. If, in the representation vote, a majority of those who vote do so positively, the Board will order the union certified; or
  • if the union attains more than 50% support, the Board will automatically certify the union, without conducting a vote.

The New Regime

EVRA will implement two significant changes. Under EVRA:

  • Certification: The automatic card check certification process will be eliminated. Secret ballots must be conducted for all certifications. If a union can show evidence that it has attained support of 40% of workers (instead of the previous 35%), the Board will coordinate a vote in which 50% + 1 of voting workers must vote in favour of unionization or the certification will fail.
  • Decertification: If an employee can demonstrate that 40% of union members do not support the union (instead of the previous 50% + 1), a vote will be called. If 50% + 1 of voting workers in the bargaining unit vote against keeping the union, it will be decertified.

What does this mean?

Although both management and union personnel agree that employees should have the right to decide whether or not they want to be represented by a union freely and without pressure, the method by which that conclusion is arrived at has been extremely contentious.

The new system effectively mandates the additional step of a representation vote. Unions argue that the new system opens the process up to potential abuse by the employer in the window before the vote is taken. Unions argue that, because of this potential for abuse, employees are prevented from freely choosing to unionize.

Employers have been making the argument about the current card check system – that it gives unions the opportunity to gain certification by unduly influencing employees. This is because the submitted cards are not subject to any public scrutiny, and the process compromises the ability of employers to express their views regarding unionization while unions remain free to persuade employees.

A vote in every case is clearly the best mechanism to ensure that the true wishes of employees are respected and recognized in every case.

With thanks to Alex Lemoine for his assistance on this post.