Changes to Labour Relations Code include card checks, first-contract arbitration
Significant changes to Alberta’s workplace laws are coming soon with the passage of the Fair and Family-friendly Workplaces Act (Bill 17) — which will bring about the biggest changes to Alberta’s Employment Standards Code and Labour Relations Code in decades. All provincially regulated employers will be affected, with the majority of changes to union workplaces coming into effect on Sept. 1, 2017, and the remainder coming into effect on Jan. 1, 2018.
Some of the changes brought about may prove to be controversial, including a flurry of new measures to promote, enhance and strengthen union activity in Alberta. Here are some of the more notable changes:
Card checks and certification
Alberta will adopt a hybrid card-check system in order to certify new trade unions. This is likely to have significant ramifications for union organization in Alberta.
Where a union has 65 per cent or more support (as shown by workers signing cards or being members in good standing), the union can become the certified bargaining agent — without a secret ballot vote taking place. If between 40 and 65 per cent of employees sign cards, then a secret ballot vote will be conducted. Where union support is shown by way of a petition, a vote will be required.
Most unions in Canada support card-check systems because secret ballots are less likely to result in union representation. The move to a card-check system (even a hybrid one) may increase unionization in Alberta.
Card checks could potentially create difficult working environments as union organizers and workers wanting union representation may influence their colleagues to sign cards. Another issue under the card-check system is employers are less likely to be aware of union campaigns while they are taking place. As a result, unions tend to be the single or dominant source of information, and workers may not always be given a balanced picture before electing to support a union.
Bill 17 is also extending the allowable period for union campaigns from 90 days to six months. Therefore, unions will be able to apply for certification long after employees have applied for membership.
During the period between an employee signing a card and the union applying for certification, it is possible employees will change their minds about unionization but, as a result of moving to this hybrid card-check system, they may not have the chance to cast their vote through a secret ballot.
Firm timelines will also be imposed to ensure certifications are dealt with promptly (20 days from the date of application or 25 days in situations involving a mail-in ballot).
First-contract arbitration
Employers and unions will now be able to seek first-contract arbitration upon application to the Labour Relations Board. This will allow a union to have the first collective agreement imposed on an employer if the union is unsuccessful in bargaining over the course of 90 days.
The board will also have new, wide-ranging powers to direct the parties on next steps (such as tabling of final proposals, mediation and ordering votes). Failing a satisfactory outcome, the board will also be empowered to require binding arbitration of a first collective agreement.
Rand formula
The inclusion of a Rand formula in collective agreements mandates that dues be deducted from employee pay and remitted to the union. Currently, the inclusion of such a clause is negotiated by the parties during bargaining. However, it will now be imposed in Alberta in all collective agreements upon a union’s request.
Unfair labour practices
Employees will no longer have to prove an unfair labour practice occurred as Bill 17 shifts the onus to employers to disprove such conduct occurred. The introduction of this reverse-onus provision will make it easier for employees to challenge employer actions such as discipline or dismissal.
Where an employer is found to have engaged in an unfair labour practice, the Labour Relations Board will be empowered to grant a union automatic certification without a vote. Similarly, the board may revoke a union’s certificate without a vote if a union is found to have engaged in an unfair labour practice.
Other noteworthy changes include:
• increased board and arbitrator powers
• expanding the right to unionize to farm and ranch workers (except for family members)
• giving unions the explicit right to picket the secondary premises of an employer as well as locations of third parties helping an employer resist a strike
• the Labour Relations Board no longer being able to suspend the deduction and remittance of union dues when an illegal strike is taking place
• essential services being expanded to include health-care laboratories, blood supply services and continuing care facilities (including those that are non-profit and privately owned)
• construction workers no longer needing to be employed for 30 days before participating in a union certification vote
• appeals from arbitration decisions will be heard by the Labour Relations Board (not the courts) and appeals from board decisions will proceed directly to the Court of Appeal.
Employers are likely to confront a number of challenges as a result of these changes to Alberta’s workplace laws. In addition to ensuring compliance with the new standards, employers will also be required to address administrative issues, as well as broader strategic considerations.
Both at law firm Blakes in Calgary, Birch Miller is a partner practising in the areas of employment, labour and privacy law, and Bruce Graham is an associate practising in the areas of employment and labour law. For more information, visit www.blakes.com.
