The labour movement seems to be on the rise again. We are hearing more and more about labour tension and worker unrest, leading to greater interest in unionizing among non-unionized workers and more strike action among unionized workers. In the United States, which may be an indicator of where things are headed in Canada, the Biden administration is focused on the creation of more union jobs. In Canada, Bloomberg has reported that “[a] recent string of rejected tentative agreements across the country is a sign that workers are expecting more from their employers, and their unions…” and a recent CBC article pointed to polling data that shows approval of unions is at a high.
What does this mean for employers? Employers should have a general understanding of the unionizing process in Canada, including their rights and responsibilities during that process. There are three key things for employers to know:
- Labour relations laws vary across the country. Make sure you are aware that there are different requirements and that you understand those differences.
- The legislation provides for specific steps that must be completed for a union to be certified. Understanding the general steps helps you be prepared for unionizing activities.
- During the unionizing process, the legislation imposes certain obligations on both employers and trade unions.
Unionizing Laws Vary Across the Country
Unionizing is governed by labour relations legislation in Canada, and that legislation varies significantly across the country. While the legislation in each jurisdiction generally covers the same topics, the legislation uses different terminology and provides for different rights and responsibilities. If you have employees in more than one jurisdiction, do not assume that the law is the same.
For this reason (among others), it is important to obtain legal advice regarding unionizing.
The steps to unionization are similar across the jurisdictions, although the details do differ. Before a union can represent a bargaining unit, it must obtain certification as the trade union for the specific bargaining unit. Certification is what allows the union to act on behalf of the bargaining unit.
The first step for unionizing is for the union to obtain the required level of support from employees in the proposed bargaining unit. Every jurisdiction requires the union to meet a specified level of support before it can be granted certification. The union does this by soliciting employees to become members in the union.
The second step is for the union to make an application for certification to the Board (the Labour Board of the respective jurisdiction). In some jurisdictions there are restrictions on when an application for certification can be made, depending on factors such as whether there has even been a collective agreement or certification of a bargaining agent, whether any certification has been questioned or reviewed by the court, and if there is a collective agreement, the term of the collective agreement.
Generally, as long as the union meets the required threshold the Board will certify the union, although some jurisdictions also require the Board to be satisfied that the employees were not subject to intimidation, coercion on threats. Depending on the number of employees who have become members, a representation vote may be required. The threshold for requiring a representation vote, the process for conducting the vote, and the threshold required to pass the vote vary by jurisdiction.
As part of this second step, the Board will also determine the appropriate bargaining unit. In some jurisdictions the Board can modify or alter the the bargaining unit, or add or remove employees from the bargaining unit. And in some jurisdictions, the union is required to provide information to support the proposed bargaining unit and the employer may be given an opportunity to respond to that information.
Once a union is certified in respect of a bargaining unit, the trade union can then bargain collectively on behalf of the bargaining unit.
Obligations and Prohibitions During Unionizing
Once a union has started organizing, there are certain restrictions and obligations that apply – both to employers and to trade unions. These also vary between jurisdictions, but generally include the following types of requirements.
During unionizing, employers may be required to provide the union with access to their property for the purpose of meeting with employees and trying to convince them to join the union. This access can be ordered by the Board. It is generally provided in situations where employees reside on the employer’s property or on property controlled by the employer.
Employers may be prohibited from altering the rates of pay, any term or condition of employment, or any right or privilege of any of those employees in the affected unit once an application for certification is filed. When a trade union is in the process of unionizing, an employer may also be prohibited from discharging, suspending, transferring, laying-off, altering the status of, refusing to continue to employ or re-employ, or otherwise disciplining an employee, except for proper cause.
Employers may also be prohibited from using coercion or intimidation to effect an employee’s decision regarding whether or not to join a union.
Trade Union Obligations/Prohibitions
Unions generally cannot attend at the employer’s premises without either the employer’s consent or an order or permit from the Board. In some jurisdictions this restriction is limited to working hours but in other jurisdictions it is a complete prohibition (unless with employer consent or Board permission).
A trade union is generally prohibited from using intimidation or coercion to try to compel any person to become or refrain from becoming or to continue or cease to continue to be a member of a trade union. In some jurisdictions that prohibition extends to prohibiting intimidation or coercion to compel a person to refrain from exercising any other rights under the legislation or from performing any obligations under the legislation.
How Compliance Works Helps Employers
HR compliance requirements can vary considerably from one province to the next. Compliance Works makes it quick and easy for employers to compare how requirements differ across Canada.
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