Final Amendments to the B.C. Labour Relations Code, Now in Effect!
May 2019
Article by:
Michael R. Kilgallin
Further to our May 2, 2019, update, on May 30, 2019 the Provincial Government passed Bill 30-2019, Labour Relations Code Amendment Act, 2019. Everything in the First Reading was accepted, save for a change to the construction industry raid period.
The amendments will have immediate impacts on both unionized employers and employers whose employees seek to be unionized. The major changes are summarized below.
Union Certification Process and Restricting Freedom Expression
- Narrowing the right to communicate, ss. 6(1) and 8.
- Reducing the time limit for a certification vote to five business days from the application (down from 10 days), and “business days” now excludes Saturday, Sunday and holidays, ss. 1 and 24
- Making remedial certifications more accessible, s. 14
- Increasing the freeze period on employers from four to 12 months for newly certified unions, s. 45
Unions still need to get membership cards signed by employees, apply to the Board and win a secret ballot vote. However, the net impact of these changes is that there will be less opportunity for employers to communicate with employees regarding the decision to join a union. Further, in the event that an employer is found to have committed an unfair labour practice during the certification process, which includes improper communications to employees, then a remedial certification can be ordered even if the employees vote against the union.
Union Raids and Ending Collective Agreements Post-Raid
- Restricting the years/times when unions can raid, s. 19
- Non-construction: collective agreements 3 years or less, 7th/8th months of the last year and following years; and collective agreements more than 3 years, 7th/8th months of the 3rd year and following years
- Construction: collective agreements 3 years or less, July/August of the last year and following years; and collective agreements more than 3 years, July/August of the 3rd year and following years
- Allowing a successful raiding union to apply to cancel a collective agreement, s. 27.1
- Limited to collective agreements of 5 years or more, and where the raid occurs at least 2 years prior to their expiry
The only change from the First Reading was to reduce the raiding season for the construction industry from every summer, to align with the non-construction approach. Regarding ending a collective agreement early, the hope is that this will be saved for extreme cases where there is a very long collective agreement term and the provisions are objectively below industry standard.
Arbitration
- Increased access to settlement officers for grievances, s. 87
- Mandatory case management conferences for arbitrations, s. 88.1
- Overhauling the expedited arbitration process, s. 104
- Clarifying the court’s jurisdiction for appeals of arbitration awards, s. 100
These changes will ideally create more consistency and standardize expectations for the arbitration processes.
Contract Re-tendering (flipping)
- Extending successorship protection to re-tendering (contract flipping) of service contracts in specific areas: building cleaning/janitorial services; security services; bus transportation services; food services; non-clinical services in the health care sector; and other service contracts as added by the Lieutenant Governor in Council, s. 35
This will have a major impact on all applicable employers and companies/organizations looking to enter a service contract. Once a unionized employer provides labour under a service contract, all subsequent employers who take over that service contract will automatically be deemed a successor employer, certified by the union and governed by the collective agreement.
Amendments to the Employment Standards Act
Bill 9, Employment Standards Amendment Act, 2019, which is also now in force and detailed here, also has an impact on unionized employers. Under the previous Employment Standards Act:
- 3(2) If a collective agreement contains any provision respecting a matter set out in Column 1 of the following table, the Part or provision of this Act specified opposite that matter in Column 2 does not apply in respect of employees covered by the collective agreement:
Column 1
Matter
Column 2
Part of Provision
Hours of work or overtime Part 4
Statutory holidays
Part 5
Annual vacation or vacation pay
Part 7
Seniority retention, recall, termination of employment or layoff
section 63
Under the new amendments:
- Collective agreement terms for the above table must “meet or exceed” the comparable statutory minimum standards, which can take the whole Part into account rather than a section by section comparison.
- The “meet or exceed” standard will only apply to collective agreements negotiated or renewed after the legislation is enacted (May 30, 2019).
Employers must now plan for these additional rules and costs, and consider what can be achieved at bargaining to mitigate the impact.
For a summary of the additional changes to the Labour Relations Code, see: https://ropergreyell.com/resource/proposed-amendments-to-the-b-c-labour-relations-code-first-reading/
There is no question that these amendments create new challenges for employers which should be proactively considered and prepared for
May 2019
Further to our May 2, 2019, update, on May 30, 2019 the Provincial Government passed Bill 30-2019, Labour Relations Code Amendment Act, 2019. Everything in the First Reading was accepted, save for a change to the construction industry raid period.
The amendments will have immediate impacts on both unionized employers and employers whose employees seek to be unionized. The major changes are summarized below.
Union Certification Process and Restricting Freedom Expression
- Narrowing the right to communicate, ss. 6(1) and 8.
- Reducing the time limit for a certification vote to five business days from the application (down from 10 days), and “business days” now excludes Saturday, Sunday and holidays, ss. 1 and 24
- Making remedial certifications more accessible, s. 14
- Increasing the freeze period on employers from four to 12 months for newly certified unions, s. 45
Unions still need to get membership cards signed by employees, apply to the Board and win a secret ballot vote. However, the net impact of these changes is that there will be less opportunity for employers to communicate with employees regarding the decision to join a union. Further, in the event that an employer is found to have committed an unfair labour practice during the certification process, which includes improper communications to employees, then a remedial certification can be ordered even if the employees vote against the union.
Union Raids and Ending Collective Agreements Post-Raid
- Restricting the years/times when unions can raid, s. 19
- Non-construction: collective agreements 3 years or less, 7th/8th months of the last year and following years; and collective agreements more than 3 years, 7th/8th months of the 3rd year and following years
- Construction: collective agreements 3 years or less, July/August of the last year and following years; and collective agreements more than 3 years, July/August of the 3rd year and following years
- Allowing a successful raiding union to apply to cancel a collective agreement, s. 27.1
- Limited to collective agreements of 5 years or more, and where the raid occurs at least 2 years prior to their expiry
The only change from the First Reading was to reduce the raiding season for the construction industry from every summer, to align with the non-construction approach. Regarding ending a collective agreement early, the hope is that this will be saved for extreme cases where there is a very long collective agreement term and the provisions are objectively below industry standard.
Arbitration
- Increased access to settlement officers for grievances, s. 87
- Mandatory case management conferences for arbitrations, s. 88.1
- Overhauling the expedited arbitration process, s. 104
- Clarifying the court’s jurisdiction for appeals of arbitration awards, s. 100
These changes will ideally create more consistency and standardize expectations for the arbitration processes.
Contract Re-tendering (flipping)
- Extending successorship protection to re-tendering (contract flipping) of service contracts in specific areas: building cleaning/janitorial services; security services; bus transportation services; food services; non-clinical services in the health care sector; and other service contracts as added by the Lieutenant Governor in Council, s. 35
This will have a major impact on all applicable employers and companies/organizations looking to enter a service contract. Once a unionized employer provides labour under a service contract, all subsequent employers who take over that service contract will automatically be deemed a successor employer, certified by the union and governed by the collective agreement.
Amendments to the Employment Standards Act
Bill 9, Employment Standards Amendment Act, 2019, which is also now in force and detailed here, also has an impact on unionized employers. Under the previous Employment Standards Act:
- 3(2) If a collective agreement contains any provision respecting a matter set out in Column 1 of the following table, the Part or provision of this Act specified opposite that matter in Column 2 does not apply in respect of employees covered by the collective agreement:
| Column 1 Matter | Column 2 Part of Provision |
|---|---|
| Hours of work or overtime | Part 4 |
| Statutory holidays | Part 5 |
| Annual vacation or vacation pay | Part 7 |
| Seniority retention, recall, termination of employment or layoff | section 63 |
Under the new amendments:
- Collective agreement terms for the above table must “meet or exceed” the comparable statutory minimum standards, which can take the whole Part into account rather than a section by section comparison.
- The “meet or exceed” standard will only apply to collective agreements negotiated or renewed after the legislation is enacted (May 30, 2019).
Employers must now plan for these additional rules and costs, and consider what can be achieved at bargaining to mitigate the impact.
For a summary of the additional changes to the Labour Relations Code, see: https://ropergreyell.com/resource/proposed-amendments-to-the-b-c-labour-relations-code-first-reading/
There is no question that these amendments create new challenges for employers which should be proactively considered and prepared for