On December 16, 2014, the Act to amend the Canada Labour Code (“Code”), the Parliamentary Employment and Staff Relations Act and the Public Sector Labour Relations Act (certification and revocation – bargaining agent), also referred to as the “Employees’ Voting Rights Act” received Royal Assent and became law.  This new legislation significantly changes the rules for certifying and decertifying a union for federally regulated employers.  Those changes essentially make it easier to decertify a union and harder to certify one.

The amendments to certification and decertification requirements bring the Code in line with the labour legislation in several provincial jurisdictions, including Ontario.  Now, a lower threshold of employee support is required to trigger a decertification vote.  Plus, “card check” certification (where a union could be certified without a vote) is eliminated.  Now, a vote must always be held.

Decertification

Under the previous regime, any employee who claimed to represent a majority of employees in a bargaining unit, and who could provide evidence to that effect, could apply to the Canada Industrial Relations Board (the “Board”) for an order revoking the certification of the union. This application usually triggered a secret ballot representation vote of the bargaining unit employees.

The new rules reduce the threshold of employee support required to trigger a vote on decertification from a majority to 40% and eliminates the discretion of the Board to satisfy itself of the bargaining unit’s wishes by means other than a vote.

Certification

Under the old regime, if a union could demonstrate that it had the support of a majority of the employees in the proposed bargaining unit by way of having each of those employees both sign an application for membership in the union (often referred to as a union “card”) and pay the union at least $5.00, the union would be automatically certified without a representation vote.

Alternatively, if a union could demonstrate that it had the support of more than 35% but less than 50% of the employees in the bargaining unit, it could apply for certification but had to obtain a majority of a secret ballot representation vote in order to be successful.

Now, it is compulsory for the Board to order a vote in every case of an application for certification, regardless of whether the union can demonstrate that it already has the support of a majority of the employees in the proposed bargaining unit.  This completely eliminates the opportunity for a union to be certified without a vote

The threshold for evidence of union support required to trigger a representation vote is also raised from 35% to 40%.

Takeaways for Federally Regulated Employers

Both unionized and non-unionized employers should take into account the following effects of the Employees’ Voting Rights Act:

  • The reduced threshold for triggering a vote on decertification will make it easier for an employee to garner sufficient support to make an application for decertification of a union.   To trigger a vote, the application to the Board must contain a separate and confidential statement signed by employees constituting 40% or more of the bargaining unit, which states that they do not wish to be represented by the bargaining agent and that the applicant is authorized to act on their behalf. 
  • Employers need to be very cautious that there is no appearance of interference in the process or else they could be subject to an unfair labour practice complaint. Employers can expect that union organizing strategies will adapt and change to take into account the fact that a representation vote will take place in every application for certification.  Given that a valid vote must contain at least 35% of the proposed bargaining unit, “getting out the vote” strategies will be important.

Supreme Court of Canada to Weigh In

In 2008, The Trade Union Amendment Act, 2008, S.S. 2008, c. 26 and c. 27 was proclaimed in Saskatchewan.  In a manner similar to the Employees’ Voting Rights Act, the legislation eliminated card check certification and increased the threshold support required to trigger a representation vote for certification to 45% of the employees in the proposed bargaining unit.  It also lowered the threshold of evidence of support required to trigger a secret ballot vote respecting decertification from a majority to 45% of the bargaining unit employees.

These amendments, along with others, have been challenged by the labour movement in Saskatchewan, which alleges that the legislation is unconstitutional because it unjustifiably infringes employees’ freedom of association as guaranteed by Section 2(d) of the Canadian Charter of Rights and Freedoms.  The Union has been unsuccessful in the lower courts.  Upon its release, we will be sure to provide you with an update.