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Levelling the Federal Playing Field in Union Certification / Decertification

Just prior to beginning the holiday season themselves, the Senate of Canada gave federally regulated employers an early gift: the passing of Bill C-525.  The Bill, which received Royal Assent on December 16, 2014, enacts changes to the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act.  The legislation effects significant changes with respect to the certification and decertification processes for federally-regulated employees; for this reason the legislation is known as the Employees’ Voting Rights Act (the “Act”).

The reason it is described above as a gift to employers is that the Act changes the representation process on both sides (i.e. certification of a union and decertification of a union) to make each one a fairer process than the ones currently in place, often said to be skewed toward the unions, and therefore unfair to both employers and employees. 

With respect to certification, when the Act comes into force on June 16, 2015, it will remove the current “card-based” system under which all three of these pieces of legislation operate – where a union applies to represent the employees of an employer and can be certified based solely on the number of people who signed union cards – and replace it with a right to a secret-ballot vote.  This is similar to the process in many provinces, including Ontario (excluding the Construction Industry), and is intended to allow employees to voice their true wishes without being intimidated by either the union or the employer.  If the majority of employees who vote decide that they want the union to represent them, the union is certified as the bargaining agent.

Each of the 3 pieces of legislation affected by the Act have also always provided a process for the decertification of a union.  However, when the Act comes into force it will introduce the same procedure for decertification as it will do for certification, under each of the enabling statutes: namely, a lower threshold of support (40%) that needs to be demonstrated for a representation vote to be ordered, which is then conducted by secret ballot vote. 

In short, upon the Act coming into force, neither type of representation application will any longer be decided on the basis of cards alone.

In addition, one significant change is noted under the Canada Labour Code.  Currently, the Code places a restriction on decertification that, except in extreme cases, effectively prevents a decertification from being granted if no collective agreement is in place.  However, once the Act comes into force, that restriction will be lifted and the new decertification process described above will come in to effect, regardless of whether or not a collective agreement is in place.

If you are a federally-regulated employer and have questions about how these legislative changes may affect you, the lawyers at CCPartners are well-versed in this area of the law and are ready to assist.