Further to our recent blog post about the Ontario government’s reform of the employment standards legislation through The Fair Workplaces, Better Jobs Act, 2017, employers can also expect significant changes to the legislation governing unionized workplaces. The key changes proposed in respect of Ontario’s Labour Relations Act (“LRA”) concern union certification, bargaining unit structure, first contracts, just cause protection, return-to-work rights and procedures, successor rights, and fines for individuals and organizations, which are summarized below.
Support for Unions Seeking Certification
Unions would benefit from new provisions under the proposed legislation aimed at supporting certification efforts:
- unions would be granted access to employee lists and certain contact information where the union can demonstrate it has achieved 20% of employee support;
- certain conditions for remedial union certification would be eliminated, permitting unions to be certified more easily where employer misconduct contravenes the LRA;
- the Ontario Labour Relations Board (“OLRB”) would be empowered to conduct votes outside of the workplace – electronically and by telephone – and be able to authorize Labour Relations Officers to give directions relating to the voting process in furtherance of voting neutrality; and
- card-based certification for workers in the temporary help agency industry, building services sector, and home care and community services industry.
Restructuring Bargaining Units Possible
Currently, the OLRB has the authority to determine the appropriate bargaining unit with respect to each application for certification. Under the proposed legislation, the OLRB would also have the power to revise and revamp existing bargaining units. Specifically, the OLRB would be empowered to:
- change the structure of bargaining units within a single employer where the existing bargaining units are no longer appropriate; and
- consolidate newly certified bargaining units with existing bargaining units of the same union and employer.
It remains to be seen what criteria, if any, the OLRB will need to take into account in reaching a restructuring decision.
Easier Access to First Contract Arbitration
Access to first contract arbitration will be easier and the process will include an intensive mediation component. First contract mediation-arbitration applications will need to be addressed by the OLRB before it may deal with displacement and decertification applications.
Just Cause Protection Enhanced
Employees would have greater protection from discipline or discharge without just cause in the period between certification and the conclusion of a first contract, and between the date of a legal strike or lock-out and the new collective agreement.
Return-to-Work Rights Strengthened
Employers would have to reinstate employees when a lawful strike or lockout has concluded, subject to certain conditions, and the employee would have access to grievance arbitration for enforcing that obligation. This proposal is aimed at prohibiting employers from refusing to reinstate an employee on the basis of his or her conduct in relation to the strike or the labour dispute.
The LRA currently provides, subject to certain conditions, that an employee engaging in a legal strike may make an unconditional application to return to work within six months of the commencement of the strike. The proposed legislation seeks to remove the six-month limitation.
Successor Rights Extended for Building Services Contracts
Successor rights would extend to the retendering of building services contracts and would enable the government to apply these expanded rights to the retendering of other publicly funded contracted services.
Maximum fines for contravention of the LRA would be increased from $2,000 to $5,000 for individuals, and from $25,000 to $100,000 for organizations.
Coming Into Force
If passed, these proposals would be effective six months after The Fair Workplaces, Better Jobs Act, 2017 comes into force.
* The authors gratefully acknowledge Courtney Laidlaw’s assistance in preparing this post.