Establishment and Termination of Bargaining Rights in Ontario
Employers and employees are significantly impacted when a union is introduced into or removed from a workplace. In this blog, we explain ways in which bargaining rights in Ontario are established and how they come to an end. All parties are typically involved in the process in some fashion and may wish to have legal guidance.
Vote or Card Based Certification
In the most straightforward of cases, a union may canvas employees at a non-unionized workplace to seek their support for certification. Those employees who are willing may indicate their support in writing, typically by signing a union card. If more than 55% of employees agree to join the trade union, the union can apply to the Ontario Labour Relations Board (“OLRB”) for automatic certification. If at least 40% of employees indicate their intention to join the trade union, the union can apply to the OLRB for a representation vote amongst all employees who perform work within the proposed bargaining unit. Who may vote and who counts toward the percentage tally differs in the construction industry where only employees performing work within the scope of a proposed bargaining unit who were at work on the day of the application are eligible to participate.
Unfair Labour Practices
Challenges may arise in determining whether certification or decertification reflects the true wishes of employees and has been achieved in accordance with the Labour Relations Act, which prohibits unfair labour practices such as interference and intimidation and coercion by both employers and unions. This does not prohibit the union from trying to convince employees that certification is beneficial or employers from discussing the potential impact of certification upon employees provided the employees do not fear reprisal from either party. Should the OLRB find that an unfair labour practice has occurred, they may order certification or decertification, even if a vote did not reflect that outcome.
Decertification / Raids
Once certified, the opportunity for decertification or a raid by another union presents itself in what is called an “open period,” effectively the three months before a collective agreement (typically three years) is set to expire or, in the case of a longer term collective agreement, in the last three months of the third year, and the last three months of each subsequent year as well as the final three months of the collective agreement. If there is no collective agreement within a year of certification, opportunity arises sooner for decertification or a raid by a competing union.
In the construction industry, the open period is for two months preceding the expiration of a collective agreement, many of which are province-wide.
In any decertification action, it is critical that employees act independently of their employer in filing an application. In a raid, where another union seeks to assume bargaining rights, the raiding union would file the application. In each case, an employer would be a party to the proceedings.
Related /Single Employer and Sale of Business
Bargaining rights may also attach through a related employer (single employer in construction) or sale of business declaration sought by a union. In the former, the Labour Relations Act seeks to prevent the loss of bargaining rights where an employer tries to shut down a certified business only to open up a new business doing the same thing, but without adhering to the collective agreement. It will also capture situations where an employer attempts to divert its work to a non-unionized business that it has an interest in.
The sale of business provisions ensure that bargaining rights are preserved when a business is sold and continues to carry on in a similar capacity. It typically does not create new bargaining rights unless a new employer mixes employees of its new unionized business with employees of a similar non-unionized business, or transfers work between the two.
The information above is to provide a general outline only. There are many nuances involved in the above processes, and many more scenarios that the Labour Relations Act contemplates. It’s important to know that the OLRB maintains strict and tight timelines to respond, so it’s critical to move quickly if you receive notice of a proceeding. The OLRB itself offers helpful information bulletins surrounding different processes. Please also note that the Canadian Industrial Relations Board governs labour relations in federally regulated industries in Canada and has its own rules and processes.
If you are an employer or employee facing OLRB proceedings or seeking to commence them, we would be pleased to provide more specific guidance and assist you in navigating the process.