New tools for unions in Ontario

Panel looks at potential impact of Fair Workplaces Act
By John Dujay
|Canadian HR Reporter|Last Updated: 01/10/2018
Jerry Dias
Unions such as Unifor (headed by Jerry Dias, pictured here in Mexico City in November) could benefit from changes to Ontario’s laws. Credit: Carlos Jasso (Reuters)

Employees looking to collectively bargain and form a union will have new tools on hand to accomplish that goal with Ontario’s recently enacted Fair Workplaces, Better Jobs Act, 2017, according to a panel of experts.

The act provides more teeth to unions when going into a workplace and attempting to create a bargaining unit, but some employers might be feeling confused by the new procedures.

“They were told to take their hands off, now they are being asked to provide information, and yet they can’t be involved in any kind of campaign against it,” said Elizabeth Keenan, employer counsel at Mathews, Dinsdale and Clark in Toronto.

“It’s a bit dicey in terms of what employers might do with this kind of information.”

“They would appear at first blush to be extraordinarily significant changes whereby perhaps the right to have any say in the process has really been removed from the employer’s hands,” she said.

“Previously, until you actually applied for certification, the union had no right to know any employee information. They had no idea what the bargaining unit looked like, or who was in it,” said Thevaki Thevaratnam, director of research and education at the Ontario Federation of Labour (OFL).

“Now, you actually have employee names, phone numbers and personal email addresses, provided that the union can demonstrate that they have 20 per cent of membership support.”

Dispersed bargaining units

Diverse bargaining units may be forced to consolidate, according to new powers given to the Ontario Labour Relations Board (OLRB), and that may help certain industries with widely dispersed locations.

But some employers of franchises, for example, might not appreciate being forced to consolidate with other locations that they consider competition, according to Keenan, speaking at an event by Lancaster House in Toronto.

“(They might think) ‘Wait a second, I might be carrying on a similar business to my colleague down the street, around the block, and I might have a very small workforce as does he or she, but they are my competition,’” she said.

“‘I don’t want to sit at the same bargaining table with them negotiating terms and conditions of employment which that proprietor might be able to absorb for various reasons, and be in a position where I am forced to agree with terms and conditions that could potentially put me out of business.”

On the whole, the government has “tinkered around the edges,” said Thevaratnam, because the provincial workforce has changed drastically in recent years.

“That’s no longer the case in most areas because there’s not always a clear employer, or there’s not really a real decision-maker, or there’s no single workplace or non-standard work is prevalent,” she said.

Off-site voting

The act also allows for off-site or electronic voting, which is a win for workers, said Thevaratnam.

“Employees can actually vote their true wishes and maximize participation,” she said, instead of holding a certification vote outside the manager’s office “where the employer is potentially scrutinizing you.”

Card-based voting has also been extended to more sectors: the temporary help industry, the building services sector and for home health-care and community services workers.

“Employees do not work in a single workplace anymore, so they are difficult to organize and so it’s impractical also for the OLRB to conduct a vote in those workplaces,” said Thevaratnam.

“These three sectors are not the only sectors in Ontario to face these challenges and so, well, it’s a positive step for workers in these sectors, because the current two-step mandatory vote system actually unfairly disadvantages workers.”

But the government went too far in extending card-based certification, according to Keenan.

“There are sufficient changes in the legislation that have come along with this new bill that this kind of card-based certification may be unnecessary.”

For example, she said, by compelling employers to provide list and contact information, “that’s certainly a way to which a union can access the employee, so why is it necessary to give card-based certification?”

“There are a great number of employers that feel that this is an imbalance,” said Keenan.

Changes to Ontario’s labour relations board

Under the new law, the OLRB was also given an enhanced mandate to intervene in organizing drives, force certifications and appoint mediation for first contracts, said the panel.

This is a process that will provide greater access to collective bargaining, said Keenan.

“It will result in perhaps fewer delays in terms of reaching a resolve, but the concern I have — because I go to the bargaining table quite a bit — is that, generally speaking, first-contract arbitration is sometimes a process used to avoid bargaining,” she said.

“Often enough, I find the parties could be doing a better job of coming to a resolution on their own, but when a union knows that the first contract could be achieved through arbitration, it may not have the same impetus to come to a resolution with the employer at the table using their own means.”

Employers feel mediation is often not reflective of the view of the negotiating process and it changes the way a first contract can be achieved, said Keenan.

But if an employer commits an unfair labour practice during organizing, the new laws may remedy that for employers.

“When an employer does something illegal, that vote becomes meaningless, and you won’t be able to ascertain that membership support,” said Thevaratnam.

“For workers that are choosing to join a union, it can be very difficult to see the first tangible outcome, the first collective agreement be delayed, and it can weaken their resolve.”

“The OLRB is more empowered and is therefore able to take steps to create stable collective bargaining relationships and conditions for effective organizing,” she said.

The labour relations board has been given more teeth, said the experts.

“It’s kind of widely accepted on both sides, management and labour, that the board, on balance, makes decisions that are thoughtful, reasoned and free, for the most part, of political interference. Why not give them more power?” said Rafael Gomez, director at the Centre for Industrial Relations and Human Resources at the University of Toronto.

The OLRB has become a “huge machine that’s grown over the years” but its work is valuable, said Keenan.

“I see much of these changes to be unnecessary in terms of dealing with those things that the labour relations board is charged to deal with: interim relief in an organizing campaign situation, and reprisals that flow from the organizing, the desire to have a union, and unfair labour practice complaints, both leading up to unionization and thereafter,” she said.

“As far as the labour board’s powers to address the imbalance in the collective bargaining relationship or the imbalance in terms of the organizing and what flows from organizing, the labour relations board has done a pretty good job at that historically; individuals who have issues can have them addressed so far as they constitute fair labour practices and the board is inundated with those applications and handles them on a daily basis.”

By forcing employers and employees to enter into the mediation process, which can be highly adversarial, this creates issues in terms of the two parties’ relationships, said Keenan.

“When you don’t get along during the currency of your collective agreement, there is access to a grievance procedure and the parties should work through their process to come to a resolution themselves, as opposed to attending at a panel-based situation over an issue that can be properly dealt within a grievance situation,” she said.

“Often matters settle through the grievance process.”

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