On April 30, 2019, the BC Government introduced Bill 30 - Labour Relations Code Amendment Act, 2019, which proposes to make significant amendments to BC’s Labour Relations Code (the “Code”). The changes will affect all unionized employers in BC.
Bill 30 follows a report of a Labour Relations Code Review Panel (the “Panel”) dated August 31, 2018 (the “Report”). The Panel was appointed by the BC Government to engage in consultations with stakeholders and make recommendations for updates to the Code.
In its Report, the Panel made 29 recommendations for amendments to the Code. Bill 30 adopts nearly all of the Report’s recommendations with some slight modifications.
Most significantly for employers, Bill 30 proposes to: (1) allow for union successorship rights between contractors when a contract for certain prescribed services is re-tendered; (2) limit employer expression rights, and enable unions to make unfair labour practice complaints on the basis of prohibited speech; and (3) require union certification votes to be conducted within 5 business days.
Successorship Between Contractors
Bill 30 proposes significant amendments to the Code’s successorship provisions. Section 35 currently allows for union successorship when a business or part of a business is sold, leased, transferred, or otherwise disposed of. However, successorship is not generally triggered if a service is genuinely contracted out or a contract is re-tendered.
Bill 30 proposes automatic successorship between contractors when contracted out services are re-tendered “and substantially similar services continue to be performed, in whole or in part, under the direction of another contractor.” Currently, this provision is limited to a re-tendering of the following contracted services:
(a) building cleaning services;
(b) security services;
(c) bus transportation services;
(d) food services;
(e) non-clinical services provided in the health sector; and
(f) other services that the Government may prescribe by Regulation.
This will have a significant impact on the ability of employers to contract out and re-tender contracts for the prescribed services. If a contracted service provider is unionized, the certification will effectively attach to the contract, as opposed to the contractor, and will survive and continue to bind subsequent entities contracted to perform the same or substantially similar services through any re-tendering process.
Bill 30 does not specifically define terms such as “food services,” “building cleaning services,” or “contract re-tendering.” Moreover, it is not fully apparent as to what a “substantially similar service” “in part” is intended to mean. We will be monitoring the debates at Second Reading on these issues. However, as currently worded, we anticipate these amendments may give rise to significant litigation before the Labour Relations Board regarding the appropriate interpretation and application of the language.
Furthermore, we anticipate that logistical problems could arise if successorship between contractors occurs in the absence of a sale or transfer of a business, including problems involving the transfer or exchange of records required to maintain employment relationships of the previous contractor.
Additionally, while all other provisions of Bill 30 would take effect on the date of Royal Assent, these amendments will have retroactive effect to the date of First Reading. As a result, contracts for the prescribed services re-tendered on or after April 30, 2019 would be captured by the new provisions.
A primary issue of contention raised during the Panel’s consultation process was whether the Code should continue to require that a union demonstrate support by way of a secret ballot vote after applying for certification. Ultimately, a majority of the Panel recommended that the certification vote be maintained.
Bill 30 does not propose to eliminate the vote, but does require that certification votes be conducted within 5 business days after an application for certification is received, a reduction from the current 10 day time limit. Bill 30 also restricts the circumstances in which a representation vote may be conducted by mail to situations where “exceptional circumstances” exist, or all parties agree.
Employer Speech Restricted, Unfair Labour Practices Expanded
Bill 30 proposes to eliminate “employer speech” language currently provided in section 8 of the Code. The current language was enacted by the former Liberal Government in 2003 and provides that a person has “…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.”
Bill 30 repeals this language and instead provides that “nothing in this Code deprives a person of the freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business.”
If passed, employer speech rights will revert to their pre-2003 status when views critical of union affairs unrelated to the employer’s business as well as “unreasonably held beliefs” about such topics resulted in unfair labour practice complaints.
Bill 30 additionally amends section 6 to provide that prohibited expression may constitute an unfair labour practice.
Moreover, Bill 30 provides an expanded power to the Labour Board to issue remedial certifications if the Board determines that an unfair labour practice was committed during an organizing campaign and that it is “just and equitable” in the circumstances to do so.
As a result, employers will be required to exercise additional caution when communicating views or opinions about unions and union affairs, and ensure that expressed views and opinions are reasonably held and fact-based, so as not to interfere with the “formation, selection or administration of a trade union” and commit an unfair labour practice, particularly during union organizing campaigns.
Expedited Arbitration Procedures
Under Bill 30, parties must apply for expedited arbitrations under section 104 the Code within 15 days of completion of the grievance procedure, whereas an application can currently be made within 45 days. It is also proposed that expedited arbitrators be required to conduct a case management conference within 7 days of the appointment, conclude the expedited arbitration within 90 days, and limit any written decision to 7 pages in length.
Other Labour Code Changes of Note
Expansion of Section 54 / Consultation Obligations
Section 54 of the Code currently requires that employers provide at least 60 days of notice to a union if it intends to introduce a “measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees.” Section 54 requires the parties to meet and discuss an adjustment plan, however, the Code does not currently require that parties agree to an adjustment plan.
Bill 30 proposes to amend section 54 to enable any party, after meeting, to apply to the Mediation Division of the Labour Board for the appointment of a mediator to assist with development of an adjustment plan where one is not reached. Following mediation, the mediator may make recommendations for terms of an adjustment plan if needed.
While there is still no obligation to reach agreement on an adjustment plan, this amendment could add significant administrative burdens for employers when making workplace changes, particularly in light of the Labour Board’s historically broad interpretation of the situations in which section 54 is triggered.
New Raiding Periods and Collective Agreement Re-Openers
Section 19 will be amended to restrict union raiding activity to the seventh and eight months of the third year of a collective agreement, and each year thereafter, if the term of a collective agreement is for more than three years.
If a collective agreement is for a term of three years or less, raiding may only occur during the seventh and eighth months of the final year of the term.
In the construction industry, raiding activity may occur during July and August of each year of the collective agreement.
More significantly, Bill 30 additionally provides that, after a successful raid, the raiding union may apply to the Board to have the existing collective agreement terminated if two years or more remain in the term of the collective agreement. Additionally, unions may apply for any other “order or determination the Board considers appropriate” after a successful raid.
Ultimately, it will be left to the Labour Board to determine the criteria and circumstances in which such orders may be granted. Although not binding on any Board decision, it is worth noting that the Panel recommended that collective agreements only be re-opened in “extraordinary circumstances” in which the terms of the collective agreement “are clearly inferior to the norm in the sector.” However, the simple fact that a collective agreement may be terminated, and collective bargaining re-opened, as a consequence of a successful raid, reasonably brings some uncertainty into the collective bargaining process as a whole.
Extension of the Certification Freeze
Employers will be prohibited from altering terms and conditions of employment for employees for 12 months after an application for certification is granted, if a first collective agreement has not been concluded and a strike or lockout has not commenced. This is an expansion of the current 4 month freeze.
Parties will be able to apply to the Labour Board for appointment of an settlement officer after 45 days of completing the grievance process, whereas the current limitation provides that an application must be made within 45 days of completion.
Bill 30 repeals the Code’s existing definition of “picketing” which the Supreme Court of Canada found to be unconstitutional in 1999, and provides a definition permitting:
…lawful consumer leafleting that does not unduly restrict access to or egress from that place of business, operations or employment or prevent employees from working at or from that place of employment.
Obligation to File Collective Agreements with the Board
Bill 30 empowers the Board to decline to consider any collective agreement or ancillary agreement not properly filed with the Board, during any proceeding before the Board. As a result, unions and employers should be diligent in ensuring that collective agreements, including renewals, are properly filed with the Board at the conclusion of collective bargaining.
Maximum fines for refusing or neglecting to carry out an order made under the Code are increased to $5,000 for individuals, up from the current $1,000, and to $50,000 for corporations, up from the current $10,000 maximum.
Certification processes will be conducted more quickly. The abilities of employers to express views and opinions during those processes will be more limited. After a certification is granted, and during first collective bargaining, the abilities of employers to make changes at the workplace will be further restricted by extension of the “certification freeze” to 12 months.
Successorship rights as between contractors will limit the flexibility of employers to contract out certain types of work, and provide uncertainty and limited flexibility for contractors when bidding on contracts for certain types of work.
Expedited arbitrations will be increasingly expedited, with mandatory case management conferences occurring within 7 days and a 90 day window to complete an expedited hearing.