Two Significant BC Labour Code Changes: Card Certification is Back & Open Season is Declared in the Construction Industry for Raiding Unions
April 7, 2022
April 7, 2022
On April 6, 2022, Bill 10 – 2022 Labour Relations Code Amendment Act, 2022 (“Bill 10”) received first reading. Once in effect, Bill 10 will cause two significant amendments to the BC Labour Relations Code (the “Code”). First, the Code will again allow for “card based” certification, the purpose of which is to allow easier access to unionization. Second, in the construction industry, raids will become easier through the elimination of the current three year waiting period.
The amendments are the latest in a series of changes since 2019 that have significantly altered the labour relations landscape in BC.
BC had card-based certification until 1984 and then again from 1992 to 2001.
In late-2018, a three-member panel (the “Panel”) appointed by the Provincial Government issued a Report recommending amendments to the Code. The Report included a number of recommendations, most of which were adopted in Bill 30- 2019, Labour Relations Code Amendment Act, 2019. More information regarding those changes are available in our 2019 bulletins (Announcing First Reading and Amendments In Effect).
A majority of the Panel rejected a return to card-based certification. However, the Panel’s Union representative dissented, in support of a return to card-based certification. Card-based certification was a key part of the BC NDP’s election platform.
The Existing Certification Process: Secret Ballot Vote
Currently, there is a two-step process in BC to certify a bargaining unit.
Step 1: The Union must get 45% of the proposed bargaining unit members to sign a union card. Cards are valid for six months. Once the Union has signed cards from at least 45% of the members of the proposed bargaining unit, the union must file an application for certification to the BC Labour Relations Board (the “Board”). If the Board is satisfied that the Union has established the necessary threshold support, as at the date of its application, then the Board must order a secret ballot vote of the entire proposed bargaining unit within five business days.
Often an employer only becomes aware of the organizing drive after the union’s application has been filed. In that common scenario, an employer who would prefer to remain without a union has only five business days between the union’s application filing and the date of the secret ballot vote to make its case (subject to limits in the Code) about why employees should vote no.
Step 2: If a majority of the employees in the proposed bargaining unit who actually vote are in favour of representation by the union and the board is satisfied that the proposed bargaining unit is appropriate for collective bargaining, the Board must certify the union.
The New Certification Process
Once in effect, Bill 10 will create two pathways to certification once a union files an application for certification:
Path 1 – Card Only Certification: If a union obtains signed union cards from at least 55% of the proposed bargaining unit, the Board will then certify the Union without a vote.
Path 2 – Secret Ballot Vote:
- Step 1: If the union establishes that as of the date of the certification application, at least 45% but less than 55% of employees in the proposed bargaining unit have signed union cards, the Board will order a secret ballot vote.
- Step 2: If a majority of the employees in the proposed bargaining unit who actually vote are in favour of representation by the union and the board is satisfied that the proposed bargaining unit is appropriate for collective bargaining, the Board must certify the union.
Open Season in the Construction Industry
Bill 10 will make it easier for rival unions to raid and replace existing unions in the construction industry.
Currently, if a collective agreement is in force for a term of 3 years or less, a union can only raid during July and August of the last year of the collective agreement. If a collective agreement is in force for a term of more than 3 years, a union can only raid during July and August of the third year and each subsequent year of the collective agreement or any continuation.
The amendments in Bill 10, once effective, will allow unions to raid in July and August of each year of the collective agreement or any continuation.
What Does Bill 10 Mean for Employers?
Many employers have opposed removing the secret ballot vote from the certification process, due to fears that employees may be pressured into signing a union card, or may receive false or misleading information about the certification process or the consequences of unionization. In a card based system, employers do not have an opportunity to provide information to employees, to the extent otherwise permitted under the Code, to help them make informed choices during the vote. Employers have also long argued that the secret ballot vote is a key democratic principle, and removing the secret ballot vote is anti-democratic.
In contrast, most unions favour a card based certification system, asserting that it best ensures that employees’ true wishes are reflected, and that they are free from employer influence.
Employers concerned by the prospect of unionization should factor in these new realities to their strategic positioning.
For construction employers, the changes to the raiding periods raise significant concerns about stability in the industry, but these risks can be significantly reduced through ensuring a satisfied workforce and a productive relationship with the existing union.
Ryan Copeland is a partner at Roper Greyell LLP, where he provides strategic advice and representation to public and private sector clients in all areas of labour, employment and human rights law. He can be reached at firstname.lastname@example.org.
Mike Hamata is a partner at Roper Greyell LLP. He practises in all areas of employment and labour law, including disputes with unions, workplace safety, human rights and employment litigation, with a focus on employers in the construction industry. He can be reached at email@example.com.
Andrew Nicholl is a lawyer at Roper Greyell LLP, practising in the areas of management labour relations and employment law with a focus on employers in the construction industry. He can be reached at firstname.lastname@example.org.
While every effort has been made to ensure accuracy in this article, you are urged to seek specific advice on matters of concern and not to rely solely on what is contained herein. The article is for general information purposes only and does not constitute legal advice.