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Private member’s Bill seeks union-favourable amendments, without waiting for the Changing Workplaces Review

Although the final report from The Changing Workplaces Review is not expected until later this year, the Ontario New Democratic Party (“NDP”) introduced a private member bill on April 4, 2017 aiming, among other things, to make it easier for workers to unionize their workplaces.

Card-check certification

Currently in Ontario, the certification process for all industries other than construction involves a secret ballot vote. Bill 119, Fairness in First Contracts and the Right to Representation Act, 2017, aims to re-introduce card-check certification in all industries.

Supporters allege that the vote-based system gives employers too much time to dissuade workers from unionizing, although there is a dearth of evidence to support such an assertion. In reality, the “snap vote” is held (almost without exception) five business days after the date on which the union filed its application.  In other words, employers who don’t see the application coming have very little time to campaign against certification, and unions already have absolute discretion to file at the most optimal time for them.

One of the express purposes of the Labour Relations Act is to “facilitate collective bargaining between employers and trade unions that are the freely-designated representatives of the employees” (emphasis added). It is difficult (for us humble employer-side counsel) to comprehend how making such an important decision, without hearing from both sides, would permit an employee to choose “freely”.

Given that the return of card-check certification is one of the options to be addressed in the final report of the Changing Workplaces Review, it seems that Bill 119 is premature. However, it should be noted that the NDP has repeatedly attempted to reintroduce card-check certification since it was abolished by the Conservative government in 1995.

First contract arbitration

Bill 119 also proposes to introduce broader access to first agreement arbitration, which is another topic being considered in the Changing Workplaces Review.

The proposed amendments would allow either party to make a request to the Minister of Labour. The Minister would be obligated to refer the matter to arbitration if the parties are unable to enter into a first collective agreement and 30 days have passed since the day on which the parties were in a strike or lock-out position.

The law currently provides that either party may apply to the Ontario Labour Relations Board to obtain an order directing first contract arbitration. But before it can do so, the Board must be satisfied that bargaining has been unsuccessful because of, (a) the refusal of the employer to recognize the bargaining authority of the trade union; (b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification; (c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or (d) any other reason the Board considers relevant.

These preconditions protect the parties’ right to negotiate their own collective agreement, absent misconduct that may thwart the process.

The proposed amendment would effectively grant unions unfettered access to first contract arbitration, without meeting these established preconditions. Free collective bargaining is the foundation of our labour relations scheme. Thus, this aspect of Bill 119 seems antithetical to the purposes of the legislation.

Stringer LLP is closely monitoring the progress of the Changing Workplaces Review as well as the status of Bill 119. To learn more, register to Learn the Latest® at the Ontario Employment Law Conference.

This blog was first published on First Reference Talks.

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