The “day of application” test has been utilized by the Ontario Labour Relations Board (“Board”) in construction industry certification applications for decades, to determine which employees are “in for the count”. Basically, only those employees of the employer who were at work, and performed work in the trade for the majority of the day, on the day the union selected to file its application for certification (including weekends), are entitled to have their wishes counted. And because card check certification is in effect in the construction industry, if the union submits membership evidence on behalf of at least 55% of that filtered group, the certification is automatic. Notably, the test is not enshrined in legislation. It is a function of Board jurisprudence and informal policy.
For some, this is old news. Historically, the Board used a 30/30 test, in which it considered any individuals who had been employed by the employer in the trade 30 days before and after the application filing date. This led to significant delays and litigation. Rather than revise the test to account for a single week, for example (which it uses in accreditation applications), the Board reasoned that given the fluid, somewhat transient nature of employment in much (though not all) of the industry, a snapshot “day of application test” was appropriate.
For employers unfamiliar with the law in this area, and for long service employees who miss one day in a hundred (regardless of the reason) and find that their wishes are now irrelevant, the whole thing sounds rather illogical and unfair.
The Divisional Court recently upheld a decision by the Board in which it held, clinging fast to the day of application test, that an employee who spent the majority of the day working in the proposed unit for which the union applied for certification, but only signed a union card after being laid off later that day, would have his wishes counted. The Divisional Court held that the Board’s decision was reasonable, based upon the applicable legislation and Board jurisprudence.
Employers who come to our offices facing a fresh application for certification learn, usually for the first time, how the law operates. The day of application test is so entrenched that to question it is to question established dogma. We have oft mused whether, in an era of unprecedented protection ascribed to the Charter right of freedom of association by our nation’s highest courts, a fresh constitutional challenge by an employee in the right circumstances could force a middle ground between the inefficiency of the 30/30 test and the severity of the day of application test. Short of that, only legislative amendments could impose moderation.