The right of employees to organize in Saskatchewan for the purposes of collective bargaining is governed by The Trade Union Act, R.S.S. 1978, c. T-17 (the “Act”). A number of amendments were made to the Act in July of 2008 which have made the Act slightly more employer-friendly.
As of July 2008, when a certification application is filed with the Saskatchewan Labour Relations Board (“SLRB”) a vote must be taken of all employees eligible to vote to determine what trade union, if any, will represent the employees. Previously, a vote was not required if a majority of the employees in a particular workplace simply filed with the SLRB written support for certification (i.e. union membership cards). In addition, new provisions were added which state that at least 45% of the employees in the subject unit must have submitted written support for the certification application before a vote can be directed by the SLRB. Prior to the 2008 amendments, the SLRB had the discretion to direct a vote on a certification application with as little as 25% written support of the employees having been filed.
The other major change made to the Act under the 2008 amendments was a qualifying statement added to the section which describes unfair labour practices on the part of employers. Prior to the amendment being made, any communication made from the employer to the employee, particularly during the course of a union certification drive, could be impugned as an interference with the rights of employees under the Act. The SLRB almost always found communications made from employers to employees during the certification process to be unfair labour practices, regardless of how benign the communications might otherwise seem.
In its current state, subsection 11(1)(a) of the Act states that even though an employer is prohibited from interfering with, restraining, intimidating, threatening or coercing an employee in the exercise of any right conferred by the Act, nothing in the Act precludes an employer from communicating facts and its opinions to its employees. This section, dubbed the “Employers’ Free Speech” section, has made a major impact on employers’ abilities to speak out, or even respond to a request for information from its employees, and that impact has been felt the strongest at the certification stage, when the SLRB has traditionally been especially sensitive to this issue.