Following our post published last week about Ontario’s updated Employment Standards Act, we wanted to provide an update on the major changes now in effect for the Labour Relations Act (LRA) as a result of The Fair Workplaces, Better Jobs Act, 2017 which came into effect at the beginning of this year. Canadian employers and American companies with operations and employees in Ontario may be affected by changes which are: A) facilitating work force unionization and B) allowing the Ontario Labour Relations Board (“OLRB”) to change certain existing bargaining rules. In this post we outline some key changes in effect which may impact your business.
Revised Union Certification:
- The temporary help agency, the building services industry and home care and community services industry now have a card-based union certification system in place. A vote supervised by the OLRB is no longer required, making it easier in certain circumstances for the union to obtain certification without the risks associated with a vote.
- Unions can now access employee lists and certain contact information, as long as the union can demonstrate that it has achieved the support of 20% of employees in the proposed bargaining unit. Again, this can have the effect of making it easier for a union to obtain the necessary votes to achieve certification.
- Certification votes can be conducted outside the workplace, including electronically and by telephone.
- Certain pre-conditions for “automatic” union certification have been eliminated, allowing unions to more easily certify when an employer engages in misconduct contravening the LRA.
- Access to arbitration is now more readily available to unions in the negotiation of the first collective agreement in a workplace. In addition, a new intensive mediation component has been introduced to the process which will occur before dealing with union decertification applications. These changes can provide certain negotiating and substantive advantages to the union and a clearer path to union certification.
- The OLRB can now authorize Labour Relations Officers to give directions relating to the voting process and voting arrangements to help facilitate neutrality in the voting process.
New Bargaining Units Structure:
The OLRB can now change the structure of bargaining units where a single employer has operations in different geographic locations in close proximity. These new provisions could be a concern to franchisees and franchisors and other businesses with multiple corporate outlets in close geographic proximity. The OLRB has authority to consolidate existing bargaining units when it considers that multiple bargaining units are no longer appropriate in the collective bargaining process or where it is deemed best to consolidate newly certified bargaining units where there is a single employer and multiple bargaining units represented by the same union.
Other Changes of Note:
There are new provisions in the LRA impacting return-to-work rights and procedures particularly in cases of “just cause” job protection in the period A) between certification and conclusion of a first contract; an employer facing a collective agreement first negotiation must take more caution in, for example, disciplining union organizers or face penalties/sanctions from the OLRB, and B) during the period between the date the employees are in a legal strike or lock-out position and the new collective agreement.
What Should you be Doing to Comply with the Updated LRA?
The amendments to the LRA mean increased operational and compliance costs for Canadian employers and those based across the border with operations and employees in Ontario. Moreover, these changes are generally tilting the relative balance in favour of the union at the expense of the employer. Employers with operations in Ontario must make themselves aware of these amendments and additional sanctions and penalties against employers for non-compliance. Serious consideration should be given to conducting presentations to management staff and to amending employer handbooks, so as to educate management staff and facilitate compliance with these amendments. Company management and human resources and labour relations groups within a company will need to reconsider current strategies for dealing with both unionized and non-unionized employees.
New Ontario Government
In Canada, labour and employment legislation is a provincial responsibility, except with respect to certain federally regulated workplaces. In the recent Ontario election, the long standing Liberal government, with arguably a more sympathetic union perspective, was replaced by a majority government of the Progressive Conservative party. A fundamental aspect of the platform of the Progressive Conservative party was that the Province must become more economically competitive and create a more pro-business environment. It will not be surprising if many of these new LRA provisions are scaled back or even eliminated. For now, however, these LRA amendments are the law in Ontario and employers must comply with them.
If you have any comments and opinions on this blog post, please leave them on LinkedIn https://www.linkedin.com/in/erickay1/, on the Dickinson Wright Canada LinkedIn page or Twitter page @DWrightCanada.
Note: Parts of this post originally appeared on The Lawyer’s Daily website published by LexisNexis Canada Inc.
About the Authors:
W. Eric Kay, Partner, is a labour and employment lawyer in the Toronto office and can be reached at 416.777.4011, firstname.lastname@example.org, and his biography is available here.
Andrew J. Skinner is a labour and employment lawyer in the Toronto office and can be reached at 416.777.4033, email@example.com, and his biography is available here.