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New amendments to Labour Relations Act passed
Employers and unions can expect a rise in decertification applications as a result of the
passage of another series of amendments to Ontario's Labour Relations Act. Bill 139, the
Labour Relations Amendment Act, 2000, came into force on December 30, 2000. (See
also "Proposed Amendments to the Labour Relations Act" on our What's New page.) The legislation, which the government
states will enhance workplace democracy and foster a more competitive business
environment, passed with surprisingly little opposition from organized labour.
FACILITATING DECERTIFICATION
Expanded open period
The amendments include a number of provisions that improve the prospects for those
wishing to decertify their bargaining agent. The window for making decertification
applications will be extended to the last three months of the operation of the collective
agreement, from the current two months. Parallel changes are made with respect to the
period of time during which another union may apply to displace the union as bargaining
agent.
Publicizing decertification procedure
Within one year of the Bill's enactment, the Ministry of Labour will be required to
produce a document outlining the decertification procedure. The information contained
in the document is to include
- who may make an application for decertification;
- when the application may be made; and
- the Ontario Labour Relations Board rules regarding the decertification procedure.
Unionized employers must make reasonable efforts to post a copy of the document in a
conspicuous place in the workplace, to provide a copy once a year to all employees
represented by the union, and to provide copies to represented employees on request. None
of these actions shall be deemed an unfair labour practice under the Labour Relations Act.
Decertification and first contract arbitration
Where a newly-certified union is unable to negotiate a first collective agreement with the
employer, the new Act provides that either party may apply to the Board for first contract
arbitration. It also provides that, if no collective agreement has been reached by one year
after certification, employees may apply to have the union decertified. Under the old Act,
in circumstances where both applications for first contract arbitration and decertification had
been filed, the Board could decide which matter to consider first.
Under the new law, the Board must now deal with the decertification application first. The
practice of the Board had usually been to consider the arbitration application first. If the
Board granted the first contract arbitration, the decertification application would
automatically be dismissed. The change deprives unions of an important means of protecting
themselves from decertification.
Separate ratification and strike votes
A climate favourable to decertification is fostered in other ways. One is the provision
requiring that strike and first contract ratification votes be taken separately. Under the old
Act, unions were permitted to combine a vote to ratify a proposed collective agreement with
a strike vote. This meant that, in some cases, union members had no choice but to vote for
a strike if they did not accept the employer's offer.
By putting an end to the practice of combined votes, the new provisions will likely have the
effect of leaving a weak, fledgling union exposed to decertification. This is because it will
be in the unenviable position of being unable to negotiate a collective agreement acceptable
to the membership, and unable to strike to achieve a better one.
Disclosure of union officials' salaries and benefits
The new Act requires the disclosure of annual salaries and benefits over $100,000 of all
officers and employees of parent and local trade unions in Ontario, as well as teachers'
associations, employee associations in the fire, police and college sectors, unions in the
Ontario Public Service, and other organizations to be listed in the regulations.
Unions are to submit statements containing the amount of salary and benefits paid to every
employee earning over $100,000 to the Minister of Labour by April 1 of the year following
the year in which the salary and benefits were paid. The Minister may make the information
public or employees may request the information directly from their union.
Some observers have pointed out that these provisions appear to be aimed at promoting
membership dissatisfaction with union officials. Again, the goal is apparently to create an
environment favourable to decertification.
CERTIFICATION
Under the old Act, while there were restrictions on when a union could reapply for
certification after an unsuccessful attempt, there were no such restrictions on when another
union could apply to be certified for the same bargaining unit.
The amendments will now impose a mandatory bar of one year for certification applications
by any union if
- a union withdraws its application for certification for the same group of
employees twice in a six-month period before a vote is taken;
- a union withdraws its application after a representation vote; or
- a union has had an unsuccessful representation vote and its application is
dismissed by the OLRB.
In Our View
Bill 139 also contains provisions specific to the construction industry. Among these are:
- redefinition of the term "non-construction employer" so as to allow
municipalities, school boards and banks to apply to the Labour Board to remove
themselves from the construction provisions of the Act;
- amendments to the Act's project agreement provisions to allow multiple projects
to be included within the terms of a single project agreement and to cover non-construction work; and
- clarification that section 8.1 of the Act, the procedure for dealing with employer
challenges of the union's estimate of the number of individuals in the proposed
bargaining unit, applies to certification applications in the construction industry.
For further information, please contact Andrew Tremayne at (613) 563-7660, Extension 236 or André Champagne at
(613) 563-7660, Extension 229.
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