The Fair Workplaces, Better Jobs Act, 2017 ("Bill 148") made a number of significant changes to the Labour Relations Act, 1995 (the "LRA"), effective January 1, 2018. This has been overshadowed, to some extent, by the controversy surrounding the sweeping changes to the Employment Standards Act, 2000, including the minimum wage.
The most notable changes to the LRA are summarized here:
Changes to Help Unions Organize
Union Right to Employee Lists
A union is now entitled to apply to the Ontario Labour Relations Board (the "Board") for an order directing the employer to provide the union with a list of employees. If the union is able to establish that it has the support of at least 20% of a proposed bargaining unit, the Board will issue such an order. The employer will then be required to provide the union with not only the name of each employee in the proposed bargaining unit, but also their phone number and personal email address, if the employee has provided it to the employer.
There were previously no obligations in the LRA for an employer to provide information to a union about its workforce. These changes will not only make it much easier for union organizers to contact employees but it will also enable unions to know what number of employees they need to sign up for a successful application for certification.
Union Certification Without Majority Support
The Board is now required to certify an applicant union without the union demonstrating majority support of the employees, if it finds that:
- the employer has violated the LRA through anti-union conduct; and
- as a result of the employer's violations:
- the true wishes of the employees in the bargaining unit are not likely to be reflected in a secret ballot vote; or
- the union was not able to obtain more than 40% support of the proposed bargaining unit.
Previously, the Board had the discretion to either:
- order that a representation vote be taken (with any measures required to ensure that the vote reflected the true wishes of the employees in the bargaining unit);
- order a second representation vote if the first vote did not reflect the employee's true wishes; or
- automatically certify the union.
This discretion has now been removed. If the Board finds that the above criteria are met, the Board must certify the union despite its not having shown majority support through a vote or membership cards.
Card-Based Union Certification in Certain Industries
For many years, a secret ballot vote has been a required part of the union certification process (except for the construction industry). Now, however, in some sectors, unions can obtain bargaining rights based solely on a card-based application, without the need for a vote. This new rule applies to:
- the building services industry;
- the home care and community service industry; and
- temporary help agencies.
A union organizing employees in these sectors may elect to apply for certification by submitting signed union cards, or they may seek a vote. The union simply files its election when the application for certification is submitted to the Board.
Card-based applications will be dismissed if the union has not provided evidence that at least 40% of the proposed bargaining unit are members of the union. If the union presents evidence that at least 40% but not more than 55% of the proposed bargaining unit are members of the union, a representation vote will be held. If the union presents evidence that more than 55% of the proposed bargaining unit are members of the union, the Board can certify the union without a vote (which is expected to be the normal outcome) or direct that a representation vote be taken.
In those union representation cases where votes will still be held, the Board now has the ability to order that votes be conducted outside the workplace, or electronically or by telephone. Previously, votes could only be conducted in person and votes were scheduled in the workplace.
New Union/Employee Rights Following Unionization
Just Cause Protection Before First Collective Agreement
Once a union has been certified as the bargaining agent for a bargaining unit, the employer is prohibited from discharging or disciplining an employee in the bargaining unit without just cause. This prohibition remains in effect from the date the union is certified until the day that a first collective agreement is entered into, or the date the union is decertified.
First Agreement Mediation and Arbitration
The LRA previously had provisions related to first agreement arbitration if the parties were unable to conclude a first collective agreement. Now, parties have the option of applying for first agreement mediation or first agreement mediation-arbitration ("med-arb"), rather than applying just for arbitration. The changes made to these provisions also make it easier for parties to access first agreement mediation or med-arb.
The LRA now also provides for primacy of first agreement mediation or med-arb applications where other applications have been made to the Board. An application for first agreement mediation or med-arb must be finally resolved before the Board will consider a displacement (union "raid") or decertification application.
Review of Bargaining Unit Structure
The Board now has the ability to review the structure of bargaining units (except in the construction industry), if:
- the employer or union makes an application to the Board requesting the review at the time the application for certification is made or within three months after certification;
- a collective agreement has not yet been entered into in respect of the bargaining unit; and
- the newly certified union already represents employees of the employer in another bargaining unit.
If the Board reviews the structure of the bargaining units, the Board must allow the parties to seek agreement regarding the appropriate bargaining unit structure. However, if the Board determines that the parties' agreement would not lead to an appropriate bargaining structure, the Board can make any orders it considers appropriate in the circumstances to resolve the issue. The Board may, for example, consolidate the bargaining units, amend any existing bargaining unit descriptions, order that a collective agreement applies to a wider group or employees, or order that a collective agreement no longer applies to a group. The Board previously had no ability to consolidate bargaining units or change bargaining unit descriptions.
The Board also now has the ability to review the structure of bargaining units at any time if there are multiple bargaining units involving one employer that are represented by the same union andthe parties agree to such review. The parties may then make a joint application to seek the consent of the Board to, among other things, consolidate the bargaining units, amend a bargaining unit description in a collective agreement, or make a collective agreement apply to the consolidated unit.
Note that while these changes give unions a much greater ability to seek to consolidate bargaining units, they also provide employers with greater ability to seek to update and apply for more sensible bargaining structures.
Just cause Protection during Strike or Lockout
Employers are now prohibited from discharging or disciplining employees without just cause during a period of lawful strike or lockout. Arbitration is available to resolve disputes, even though no collective agreement is in place.
Where the employer or the union has given notice to bargain following certification, either party can request educational support in the practice of labour relations and collective bargaining. The Minister of Labour will then make the educational support available. There is as yet no guidance about what this will consist of.