Ontario Labour Relations Board

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Special thanks to our summer student Brianna Grieff for contributing to this update.

If you are an employer suddenly ambushed by a union certification application, your immediate questions are likely: what exactly is happening, and what should I do next? Briefly, you should immediately seek legal advice due to the tight timeline you have to respond. This article covers three critical aspects of the union certification process in Ontario: (1) what the process is; (2) the general timeline of events; and (3) employer best practices.

1. The Union Certification Process

During this process, a union seeks to become the official bargaining agent for a defined group of employees. In Ontario, the process is overseen by the Ontario Labour Relations Board (the “Board”) and is governed by the Labour Relations Act, 1995 and the Ontario Labour Relations Board Rules of Procedure.

There are four main stages:

(1) Union Organizing Campaign: The applicant union campaigns to seek out employee support in the proposed bargaining unit to get union membership cards signed.

(2) Application for Certification: Once a sufficient number of membership cards are collected, the union files an application with the Ontario Labour Relations Board to be certified as the bargaining agent for the employees.

(3) Representation Vote: The employees vote against or in favour of the union.

(4) Dispute Resolution: Any disputes related to the application – such as the composition of the bargaining unit or concerns with conduct during the campaign – are resolved by the Board.

2. Timeline

This section provides a quick breakdown of the four main steps. We highlight elements that employers should be aware of.Continue Reading Union Drive Incoming? Your Crash Course on Union Certification in Ontario

Successor rights are a long standing fixture in Ontario’s labour relations legislation. Generally speaking, under s. 69 of the Labour Relations Act (LRA), the purchaser of a business effectively steps into the seller’s shoes for the purpose of labour relations and becomes bound by any collective agreement that the seller is party to, unless the Ontario Labour Relations Board (OLRB) declares otherwise. The same principle applies where the business is leased, transferred or otherwise disposed of. The fundamental purpose of s. 69 of the LRA is to preserve the bargaining rights of the Union. The idea is that once the Union has been recognized with respect to a particular business, the Union may pursue that bargaining right when all or part of the business is sold.

Whether successor rights extend to the context of court-appointed receiverships had been an unsettled area. Recently, the OLRB determined that a court-appointed receiver that actively operated the debtor’s business through its agent was a successor employer for the purpose of s. 69 of the LRA: United Food and Commercial Workers International Union, Local 175 v Rose of Sharon (Ontario) Community cob as Rose of Sharon Korean Long-Term Care Home, 2018 CanLII 32988 (Rose of Sharon). We outline key aspects of the OLRB’s decision below.
Continue Reading Ready to Bargain with the Union? Court-Appointed Receivers at Heightened Risk of Successor Employer Determination

Although brevity is almost always better than wordiness, it would have been better if the legislature had used a few more words in the severance pay provisions of Ontario’s Employment Standards Act, 2000. Under the ESA, employers with a payroll of at least $2.5 million are required to provide statutory severance pay when dismissing an employee with 5 or more years of service. Unfortunately the provision is silent as to whether payroll within Ontario or, rather, global payroll is determinative. It would have been helpful if the drafters had indicated where, exactly, to draw the line.

The pendulum has swung back and forth on this issue. Most recently, the Ontario Labour Relations Board (“OLRB”) held that Ontario-only payroll is determinative, diverging from the direction previously taken by the Ontario Superior Court of Justice. We outline the key cases to date below.
Continue Reading Statutory Severance Pay: Ontario Labour Relations Board Decides $2.5M Threshold Does NOT Include Payroll Outside Ontario