B.C. Government finally tables comprehensive amendments to the Labour Relations LRC
On April 30, 2019 the NDP government tabled a bill to substantially amend the Labour Relations Code (the “LRC”). This followed in the footsteps of tabling a series of amendments to the Employment Standards Act a day earlier. For a summary of those amendments, please refer to our May 3, 2019 “Employer Alert”.
The proposed amendments to the LRC include:
Successorship in Contracted Services
Union certifications and collective agreements will now be binding (known as “successorship”) on new service provider contractors when the following contracted services are re-tendered:
(a) building cleaning services;
(b) security services;
(c) bus transportation services;
(d) food services;
(e) non-clinical services provided in the health sector; and
(f) other services that the Government may prescribe by Regulation (currently not disclosed)
This change is intended to address “contract flipping” under current law where new providers take over a contract, rehire all the same workers for the same jobs but escape the previous contractor’s union certification and collective agreement thus are able to lower wages and benefits. Unfortunately, the broad wording will mean that truly new service providers who intend to use their existing or own hired workforce to service the contract will be stuck with the prior provider’s union and compensation rates, eliminating any real competition for both providers and their customers in sectors where wages are the main cost. It also may tempt providers who are unionized near the end of their contract with no intention of renewing to agree to unrealistic pay levels that then bind the new contractor. In cases where new workers are hired by the successor, they will automatically represented by a union they did not choose thus this rule interferes with those employees’ right to freedom of association.
Importantly, this amendment will have retroactive effect to the date of First Reading, being April 30, 2019. This means that contracts for these services made on or after April 30, 2019 would be subject to the new provisions once the amendments come into force.
Ultimately the government did not propose to allow “card check” certification with no secret ballot vote. However amendments were made to the union certification process, including:
- the requirement for the time between an application for union certification and an employee vote was shortened from 10 days to 5 business days;
- the period during which an application for cancellation of certification of a trade union as a bargaining agent was extended from 10 to 12 months following the certification of the trade union or following a refusal by the LRB to cancel the certification of the trade union; and
“Raiding” periods have been restricted the seventh and eighth month of the third year of a collective agreement (or of the last term of the collective agreement if under three years), as well as to in those same months in subsequent years. Note there is an exception for the construction industry allowing raiding to occur during July and August of each year of a collective agreement.
Employer’s rights to communicate with employees about the merits of unionization has been further constrained by a requirement that any views expressed must be “reasonable”, presumably meaning something the LRB thinks is reasonable. This is a potentially unconstitutional constraint on employers’ right to communicate with employees.
The Board has been granted broader powers to issue to issue remedial certifications if the Board determines that an unfair labour practice was committed during an organizing campaign and that it is “just and equitable” in the circumstances to do so.
Expanded Arbitration Procedures:
The Arbitration procedures have been amended, including by adding provisions to:
- have the LRB conduct a case management conference with the parties within 30 days of its appointment to schedule the exchange of information and documents, schedule hearing days and encourage a settlement of the dispute; and to
- the process governing expedited arbitration, including:
- reducing the time limit make an application to be referred for resolution by expedited arbitration from within 45 days to within 15 days of the completion of the steps of the grievance procedure preceding a reference to arbitration;
- requiring the arbitrator to conduct the case management conference within 7 days to conclude the arbitration within 90 days after the date on which the grievance was referred to the LRB; and
- requiring that arbitrators issue a decision with written reasons (7 pages max) within 30 days after the conclusion of the hearing.
Other notable amendments:
- Education removed as an essential service: however, the LRB will still be able to designate some services as “essential” on narrow grounds.
- Picketing re-defined to clearly exclude lawful consumer leafletting. Broader changes to expand picketing rights sought by unions are not proposed.
- Expanded Consultations Procedures, including:
- After section 54 notice of a major workplace change is given, either party may now apply to mediation for assistance in developing an adjustment plan in cases where parties cannot agree to an adjustment plan after their initial meeting;
- mediators assisting parties concluding their first collective agreement can now also consider the scope of the parties’ actions before and after certification; and
- the 45 day time limit to request the LRB appoint a settlement officer in a grievance has been removed. This can now happen just “after” the completion of the steps of the grievance procedure preceding a reference to arbitration.
It is expected this legislation will be passed substantially as tabled this month. Employers should stay tuned for confirmation they are in effect.
The biggest impact will be on businesses, many of them public or para-public sector such as hospitals, which contract out the listed services. Both those organizations and the contractors will have to pay much more attention to unionization effective immediately. It is expected the new successorship regime may fundamentally change the market for contracting out the listed services.