Changes to the Ontario Labour Relations Act as a result of Bill 148
Amendments impact unionized employers and those that could become unionized
Feb 21, 2018
Jerry Dias, head of Unifor, at the NAFTA talks involving the United States, Mexico and Canada in Mexico City, Mexico, on Nov. 17, 2017. REUTERS/Carlos Jasso
By Brian Kreissl
Last week I discussed some of the important changes to the Ontario Employment Standards Act, 2000 (ESA) as a result of Bill 148, the Fair Workplaces, Better Jobs Act, 2017. While there has been a lot of discussion about the changes to the minimum wage and other important changes to the ESA, Bill 148 resulted in a number of important changes to the Ontario Labour Relations Act (LRA) as well.
As most people familiar with Canadian labour and employment law understand, employment standards legislation functions as a floor of rights not only for non-union employees, but for unionized employees as well. In general, no collective agreement (and no employer or union) can go below the floor of rights established by employment standards legislation.
Labour relations legislation applies to unionized employees, but it also applies to non-union employees and employers that could potentially become unionized. This is also true with respect to the changes to the LRA brought about by Bill 148 in relation to union organizing drives and certification of unions as bargaining agents.
Back on Jan. 11, I attended an interesting and engaging firm seminar featuring Melanie McNaught and Cassandra Ma of Filion Wakely Thorup Angeletti entitled “Bill 148 Update: What does it mean for unionized workplaces?” It was particularly interesting for me because I had not followed the changes to the LRA as a result of Bill 148 as closely as the ESA amendments.
Some of the changes brought about by Bill 148
The Bill 148 changes to the LRA include the following (there are more):
- Other than in the construction industry, unions can now make an application to employers to obtain employee lists where the proposed bargaining unit does not have a certified bargaining agent and those employees are not currently represented by a union. The proposed bargaining unit must be appropriate for the purposes of collective bargaining and the application from the union must include a list of people who are already union members within the bargaining unit.
- Card-based certification is now available to unions and employees in building services, home care, community services and the temporary help agency industries. The union in these industries can now elect to be certified through a representation vote or card-based certification. The Ontario Labour Relations Board can certify the union or direct that a representation vote be taken where 55 per cent or more sign a union card, or require a representation vote where between 40 and 55 per cent of employees sign a union card. The actual vote itself requires a majority of employees to support the union through a secret ballot.
- Representation votes can now be conducted outside the workplace. This includes online and telephone voting.
- The Ontario Labour Relations Board can now review the structure of bargaining units. This can happen at any time upon mutual consent of the union and employer, within three months of certification, before the first collective agreement or where the union already represents employees of that employer in another bargaining unit.
- Remedial certification of unions is now allowed where an employer interferes with the union organizing campaign. This can happen even if a majority of employees do not support the union.
- Just cause termination protection is now extended to employees from the date the union is first certified as bargaining unit. It also applies between the date of a legal strike or lockout position and the date a renewal collective agreement is entered into.
- A first collective agreement mediator may be appointed by the Board after the release of a conciliation report or a no board report, and mediation-arbitration is now available 45 days after the mediator has been appointed and the parties have not entered into a collective agreement.
For more information
Readers who would like more information on the Ontario Labour Relations Act and the changes as a result of Bill 148 should consult the Ontario Labour Relations Act: Quick Reference – 2018 Edition, by Jamie Knight, Brian MacDonald and Diane Laranja. The book contains commentary on the steps involved in the certification of a union, unfair labour practices, collective bargaining procedures, first agreement arbitration, sales of businesses and how disputes under the agreement are to be resolved, as well as the full text of the LRA and associated regulations.
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Brian Kreissl is the product development manager for Thomson Reuters Legal Canada's human resources, OH&S, payroll and records retention products and solutions.