For decades, the Ontario Labour Relations Board has considered only the wishes of those persons employed in the bargaining unit on the date of application in construction industry proceedings. “Steady eddies”, disabled employees, and others who are absent from work on the date of application for any number of reasons are thereby excluded from the determination of the Union’s level of support.

In a lengthy Decision released on March 26, 2018, Chairperson Bernard Fishbein confirmed the Board’s longstanding use of the date of application test, dismissing Charter challenges brought by the Employer and a Group of Objecting Employees. The Board issued certificates to Labourers’ Ontario Provincial District Council.

The Decision in Govan Brown confirms that the date of application test continues to be a rational and proper approach to determining the relevant employee complement for representational proceedings in the construction industry. The Decision also provides a detailed overview of the jurisprudence on both freedom of expression, as guaranteed under Section 2 (b) of the Charter and freedom of association, as protected under Section 2 (b). The Board found that there was nothing in the date of application test which violated the Charter.