The Labour Relations Code Amendment Act (“Bill 30”) received Royal Assent on May 30, 2019. The changes, which place more restrictions and requirements on employers, were largely informed by a report submitted in August 2018 by a government-appointed Labour Relations Code Review Panel.
Changes have also been made to British Columbia’s Employment Standards Act which are discussed here.
Some notable changes to British Columbia’s Labour Relations Code (the “Code”) which came into force May 30, 2019 include:
Clarifications to the definition of “picket” and “picketing” [Section 1]
Lawful consumer leafletting that does not unduly restrict access to or from a place of business, operations, or employment does not fall within the definition of picketing.
Comment: This change is a concern as any employer trying to prove that consumer leafletting is “unduly” restricting access or egress to its business will have trouble proving that the activity meets the definition of an undue restriction. This is sure to increase leafletting activity that will disrupt business to some extent (whether legal or not), as well as to generate more litigation to determine what is undue and what is not. There is no principled basis to allow leafletters to restrict any person’s access to or egress from any place, regardless of how undue it is.
Restrictions on right to communicate [Section 8]
Employers, employers’ organizations, employees, and trade unions are free to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer’s business.
Previously, the Code allowed expression on any matter, including matters relating to an employer, trade union or representation of employees by a trade union, provided that the person did not use intimidation or coercion.
Comment: This change is a serious curtailment on employers’ rights to free speech. On the face of the change, an employer can only communicate reasonably-held opinions or facts about its business, and does not have the right to express any opinion about a union or its activities.
Remedial certification becomes easier [Section 14]
The Labour Relations Board (the “Board”) may certify a trade union in certain circumstances when union drive are interfered with. Certification can now be granted without the additional requirement that the union would likely have obtained the requisite support had it not been for the prohibited act that interfered.
Comment: This is a worrying development for employers as it raises the potential that even an inadvertent or minor breach of sections 5 (Prohibition against dismissals, etc., for exercising employee rights), 6 (Unfair labour practices), 7 (Union access to employees who reside on Employer property), or 9 (Prohibition of coercion and intimidation) may result in automatic certification regardless of the wishes of the majority of employees.
Limit on raiding periods [Section 19]
A union may apply to replace a current union with a collective agreement in force for a term of three years or less in the seventh or eighth months in the last year of the term of the collective agreement.
If a collective agreement is in force for a term exceeding three years, a union may apply to replace the current union in the seventh and eighth months in the third year of the term and during the seventh and eighth months in each subsequent year or continuation of the collective agreement.
Previously, raiding was open during the seventh and eighth months in each year of the collective agreement.
Limits on raiding periods in the construction industry are slightly different.
Comment: While this will bring more stability to some existing management-labour relationships, this will not affect many employers.
Extension of successor rights and obligations [Section 35]
Successor rights and obligations extend to new contracts for substantially similar services. If a contractor for services performs substantially similar services, in whole or in part, under the direction of another contractor, that contractor is bound by any proceedings under the Code prior to the new contract, and the proceedings must continue as if no change has occurred. As well, any collective agreement that was in force continues to bind the contractor.
Previously, contractors were not mentioned specifically with regards to successor rights and obligations.
Comment: This amendment is likely to benefit non-union contractors. Businesses that wish to contract out services will now have a strong incentive to avoid any unionized service provider. Businesses that already have a union service provider that is not performing, or is in breach of the services contract, will likely only be able to obtain a unionized replacement contractor, which will undermine competitiveness. This also tilts the Code further in the unions’ favour, and will likely lead to more litigation.
Statutory freeze periods increase [Section 45]
An employer must not alter wages of an employee in a bargaining unit or alter terms or conditions of employment until 12 months after the union has been certified as the bargaining agent for the unit or the collective agreement has been executed, whichever occurs first. The previous freeze period was four months.
Comment: This is a sensible amendment given it often takes more than 4 months to conclude a first collective agreement.
Further obligations to file [Section 51]
Each party to a collective agreement must also file a copy of any renewal, revision, or ancillary agreement that comes within the meaning of collective agreement with the Board within 30 days. Failure to file can result in the Board declining to consider that agreement in any proceeding.
Comment: This is a welcome amendment. Previously, the Code required parties to file copies of collective agreements, but this requirement was routinely ignored. It obviously benefits all employers and unions to be able to assess market development and competitor terms.
Consultation requirements expand [Section 54]
If an employer introduces or intends to introduce a measure, policy, practice or change that affects the terms, conditions or security of employment of a significant number of employees under a collective agreement, and neither party has agreed to an adjustment plan, then either party can apply to the associate chair of the Mediation Division for a mediator to assist the parties in developing an adjustment plan.
Comment: This is a sensible change, and will help parties conclude an adjustment plan sooner.
Easier to request settlement officer [Section 87]
Either party to a collective agreement can request a settlement officer after the completion of a grievance procedure and prior to arbitration. Previously, there was a timeframe of 45 days to request a settlement officer after a grievance procedure.
Comment: This is a sensible change, and will help facilitate settlements sooner.
The Board has increasing authority to direct employers [Sections 123 and 140]
The Board may direct an employer to display in the workplace, or make available or provide to employees, information about rights and obligations under the Code.
The Board may order an employer to provide a list of employees in the proposed bargaining unit within a specified time.
Comment: It is not clear that the Board did not already have the jurisdiction to make these orders, but this amendment makes it clear.
Increased fines [Section 158]
Fines have increased from $1,000 to $5,000 for an individual who refuses or neglects to follow an order made under the Code. For corporations, organizations, and trade unions, these fines have increased from $10,000 to $50,000.
Comments: Given its inherent jurisdiction and other remedial powers, the Labour Relations Board does not regularly issue fines. This begs the question of why this amendment is necessary? It isn’t, but it is consistent with increasing limitations on employers and tilting the Code in favour of unions.