On June 16, 2015, the Employees’ Voting Rights Act (the “EVRA”) comes into force. With it, federally regulated employees will be given the right to a secret ballot vote as part of the union certification process. The threshold of support required by employees wanting to obtain a vote on decertification will also be lowered.

The EVRA amends various provisions of the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, and the Public Labour Relations Act. It makes certification and decertification of bargaining agents in federally regulated workplaces subject to a mandatory secret ballot vote.

Currently, the “card check” system governs certification of unions federally. Union membership cards are taken as evidence of employee support for certification. A trade union that can show over 50% of employees have signed membership cards is deemed to have sufficient support: no representation vote is required, and certification is automatic.

New Rules Regarding Automatic Certification

After June 16, trade unions will still need to show sufficient employee support using membership cards to get a vote. However, automatic certification will no longer be possible, except in cases under section 99.1 of the Canada Labour Code where an employer is found to have committed an extreme unfair labour practice. A representation vote will be ordered where at least 40% of employees have signed membership cards to show they support the trade union. This is an increase from the current Canada Labour Code provisions that allow for a secret ballot vote where a trade union has 35% of employee support.

The EVRA also lowers the threshold of support required to trigger decertification to 40% of employees and makes a representation vote by secret ballot mandatory to determine whether the majority of votes cast will support decertification of the union. The current level required to trigger a decertification vote is 50%.

Section 99.1 of the Code Stays the Same

No amendments were made to s. 99.1 of the Canada Labour Code. This section gives the Canada Industrial Relations Board the authority to remedially certify a trade union despite lack of majority support. The Board will order remedial certification where it believes that a majority of the employees would have voted in favour of the Union, but for an unfair labour practice committed by the employer.

An example of where remedial certification may occur is if the Union had 99% of the employees sign cards, but then the employer told all employees they would be fired and the business would close if they voted for the Union. Even if a majority of employees did vote against the Union, the Board might find that was because of the employer’s threat to close and may remedially certify the employer.

Summary of Changes

The table below summarizes the upcoming changes:

Click here to view table.

Recommendations For Federally-Regulated Employers

If you are a federal undertaking, the EVRA will make it critically important that you actively participate in any certification campaign. Every vote is important.

In our experience, employees who are ambivalent or do not want a trade union often will not vote — apathy is easier than participation. As an employer, we recommend the message you send to employees is that whether or not to join a trade union is too important a decision to allow others to make it for you.

The secret ballot also gives a federally regulated employer the opportunity to campaign and communicate to its employees in advance of a vote. This is a singular opportunity that may not have previously existed for an employer whose employees worked with a union on a surreptitious member card sign up.