Providing employees with information about how to decertify was key part of province's 'Workplace Democracy Act'
Key points of the legislation include:
•a Ministry of Labour campaign to instruct employees on the decertification process;
•extension of the decertification application period from 60 to 90 days;
•a one-year cooling-off period to prevent further certification applications by any union following a decertification;
•first contract votes are to be cast separately for ratification and strike action; and
•giving employees the ability to apply to the Ontario Labour Relations Board to decertify a union if no collective agreement is reached within the first year.
Arguably, the most visible aspect of the legislative changes and the major penalty perceived by unions was the Union Decertification Documents package. A poster and brochure must be posted in all unionized workplaces, explaining to employees their rights of union decertification.
In tabling the bill, the government said the new legislation would expand the rights of individual employees and give them greater say in how they are represented.
What stays the same is the requirement for decertification to come from employees. An employer cannot make an application for decertification of a union or initiate, threaten, encourage, coerce or intimidate employees to do so. However, an employer can make the case for decertification by designing and rolling out a positive employee relations program.
As the most effective way of encouraging employees to move towards decertification, such positive employee relations programs would include a review of the company’s mission, vision and value, manager and employee roles and relationships, corporate communications, compensation, legislative compliance, policies and procedures. The goal for employers is to make employment practices so good and so compelling that employees see no need for a union.
If an employer can be persuasive enough within the rules of the process, any employee in the bargaining unit can file an application for decertification.
The application can be filed during the “open period,” during the last three months of a collective agreement, counting backward three months from the collective agreement expiry date or after the collective agreement expires. And, if the Ministry of Labour has not appointed a mediator or conciliation officer before the collective agreement has expired, the open period continues until an appointment is made.
Here is how the process works:
1. Employees in the bargaining unit can make an application to the Ontario Labour Relations Board under Section 63 of the Labour Relations Act that they no longer want to be represented by a union. The decertification form, provided by the OLRB, can be filed by an employee in the last three months of a collective agreement. It should list the names of employees who no longer wish to be represented by the union. This form cannot be filed by the employer. The application for decertification, along with required materials, must be delivered to the union and employer at the same time as the OLRB.
2. The OLRB must be satisfied that the list represents at least 40 per cent of employees.
3. The decertification question is asked in a secret ballot vote of union members. If 50 per cent of the votes are cast in favour of decertification, the OLRB will declare the union no longer represents the employees and the union is decertified.
Stephen Smith is the director of marketing and business development at Mississauga, Ont.-based HROI — Human Capital Solutions. He can be reached at (905) 507-9708, ext. 251 or [email protected].
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