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Special thanks to our articling student Viesakan Sivaraj for contributing to this update.

1. Negotiating a First Collective Agreement in Ontario

Once a union is certified, the employer must immediately turn their attention to negotiating a first collective agreement. The Ontario Labour Relations Act, 1995, (the “Act”) prescribes the timelines and rules for negotiating a collective agreement. Understanding these rules can assist employers with navigating negotiations and ensuring compliance with the Act during bargaining.

General Guidelines

Once a union is certified or voluntarily recognized, it must give written notice to the employer to begin bargaining for a collective agreement (Section 16). The employer and union must meet within 15 days of receiving notice, unless they agree otherwise, and bargain in good faith, making every reasonable effort to reach an agreement (Section 17). Either party may request that the Minister of Labour appoint a conciliation officer to help resolve differences and assist both sides in reaching an agreement (Section 18). Any agreement reached must be ratified by a vote of the bargaining unit employees, with limited exceptions, such as in the construction industry.

The agreement must be filed with the Ontario Ministry of Labour, Immigration, Training and Skills Development and all collective agreements that are filed with the Ministry are published on the Ontario government’s Collective Agreements e-Library Portal website. If the union fails to give notice to bargain within 60 days of certification or fails to start bargaining, the Ontario Labour Relations Board (the “Board”) may terminate its bargaining rights (Section 65), though this is extremely rare. Generally, once a union is certified, they are here to stay.

Key Timelines

There is no fixed deadline for finalizing the first agreement, but the Act provides mechanisms to address delays, impasse, or bad faith bargaining. Under section 43(1) of the Act, where the parties are unable to reach a first collective agreement and either a conciliation board will not be appointed or the conciliation board report has been released, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

The Board must issue a decision on whether to arbitrate within 30 days of receiving the application. Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board must appoint a date for and commence a hearing within 21 days of receiving notice and must determine all matters in dispute and release a decision within 45 days of the commencement of the hearing.

A first collective agreement settled under Section 43 of the Act is effective for 2 years from the date of settlement. If no agreement is reached within one year of certification, employees may apply to decertify the union (Section 63), though again, this is rare.Continue Reading From Bargaining Table to Arbitration: Navigating First Agreements, Renewals, and Back-to-Work Orders

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

With an uncertain economy amidst tariff concerns, Canadians continue to make bolder workforce demands. Although many workers have returned to pre-pandemic attitudes, notable union activity remains rampant across Canadian workforces. For example, over the past 18 months, Canada Post has faced ongoing negotiations and strike notices from the union that represents 55,000 postal workers. On July 5th, 10,000 LCBO employees walked off the job, demanding higher wages and improved benefits. Finally, the professors at McGill University’s Faculty of Law made headlines by striking for five weeks in support of their right to unionize.

Employers are justifiably concerned about the potential for increased union activity, which can cause significant disruptions to operations. There are many strategies employers can use to stay union free, but it requires treading carefully, as labour laws offer extensive protections to employees’ right to unionize. One wrong step by an employer can lead to penalties, fines, and automatic union certification.

Understanding how quickly the 3-step certification process unfolds

The certification process formalizes the collective bargaining relationship. And, understanding how this process works and appreciating how quickly it can move forward is essential for developing an effective union avoidance strategy.

The process for certification in Ontario involves three steps:

1. The Organizing Drive

First, the union will try to keep the organizing drive a secret. During this period, the union will typically attempt to gauge employee interest by having union representatives approach them at the workplace, typically while they are coming to or leaving work, as well as online. Union representatives will talk to employees about any issues they may have with the workplace and share the union’s contact information with them. Union organizing drives usually involve signing up employees as union members and collecting union membership cards. One way that unions target employers for a union drive is by obtaining the names, contact information, and/or home addresses of the employees of a certain workforce, which they use to send them propaganda.Continue Reading Best Practices for Employers Experiencing Labour Union Activity

Special thanks to our articling student Ravneet Minhas for contributing to this update.

With pervasive inflation and an uncertain job market, many Canadians are emerging from the pandemic with bolder workforce demands. For example, in the spring of 2023, federal public servants made headlines with the largest strike in Canadian history. More recently, 3,000 Metro…

Our two-part webinar series was designed to bring Canadian in-house counsel and human resources leaders up to speed on the top labour, employment and human rights law developments of 2021 and to prepare them for what’s on the horizon in 2022.

Using our “quick hits” format, we provided two content-rich presentations complete with practical takeaways…

2020 has posed unprecedented challenges for Canadian Employers. We know that in addition to keeping your employees safe and maintaining business continuity, it’s a challenge to keep track of all the changes to the employment law landscape in Canada.

These two, 60 minute virtual sessions are designed to help you stay abreast of what changed…

Our U.S. colleagues recently wrote a great piece about the long-awaited and much-debated decision of the National Labour Relations Board (the “NLRB”) in Browning-Ferris Industries of California, 362 NLRB No. 186,  (“Browning-Ferris”) which has dramatically changed the concept of “joint employment” south of the border.  U.S. employers who – on the basis of 30 years of NLRB precedent – have operated on the basis that workers supplied by temporary staffing agencies were not their employees should take heed.  The rules have changed and employers will need to adapt.  Readers who want a purely U.S. analysis of this landmark case can link to it here.
Continue Reading Meet the New Boss…. Same as the Old Boss? Temporary Workers and Joint Employment in the U.S. and Canada

In our last post, we gave an overview of the union certification process, talked about why employees might choose to join unions and some signs of union organizing that employers should watch for. In this post, we will discuss what employers can and cannot do during an organizing campaign.
Continue Reading Not on My Watch – What Employers Can Do When Unions Come Knocking (Part 2)

When an employer receives a certification application, the countdown clock begins. If the employer was unaware that an organizing campaign was underway, the employer will have only five days to formulate a plan and implement it. This means that employers are often left scrambling, which could result in certification of the union or an unfair labour practice complaint.

Recently, this issue was highlighted in an article by the Toronto Star, which discussed the certification of housekeepers at the Trump Hotel in Toronto.
Continue Reading Not on My Watch – What Employers Can Do When Unions Come Knocking (Part 1)

On June 16, 2015, Bill C-525, commonly known as the Employees’ Voting Rights Act (“EVRA“), will come into force. EVRA will make some minor, but impactful, changes to the processes in which unions gain and lose bargaining rights in the federal public sector.
Continue Reading No More Stacking the Deck: Employees’ Voting Rights Act Brings Changes to Federal Union Certification and Decertification Processes

Overruling one of its own decisions, the Supreme Court of Canada today has determined that the “right to strike” is protected under s. 2(d) of the Charter, which is the freedom of association provision. In Saskatchewan Federation of Labour v. Saskatchewan, the Court confirmed that legislation that limits the right to strike is unconstitutional unless its limits are reasonable and justified in a free and democratic society.

In practice, this case will ensure that legislators do not limit the right to strike without a strong and compelling justification, and without providing an alternative means of resolving a bargaining impasse –an alternative means that will not undermine the bargaining power of the union. In any event, a law that limits the right to strike must interfere only as much as is necessary.
Continue Reading Supreme Court of Canada Recognizes Constitutional Right to Strike: What Does it Mean for Employers?