On April 6, 2022, the Provincial NDP government introduced a bill that stands to make significant labour friendly changes to British Columbia’s Labour Relations Code. Bill 10–2022 was introduced without any apparent consultation with the business community and with no evidence of any justifiable need to make the changes contained in the Bill.
The Bill, if passed into law, will introduce the following significant changes into the Code:
- allow unions to be certified at a workplace without any vote, where 55% or more of employees have signed union cards; and
- in the construction industry, allow one union to “raid” another during an “open period” which will occur every year, rather than generally every three years.
Both these items have been on the “wish list” of traditional organized labour since the NDP’s return to power. Inconveniently for the NDP, the majority of the expert panel they appointed to study the Code and make recommendations for change opposed these exact changes when they released their report in 2019.
Undeterred by the recommendations of their own expert panel, and untroubled by the notion that we live in a democratic society, the NDP has decided to dispense with the inconvenience of employees having an actual chance to have a secret ballot vote on unionization. It seems sometimes votes do not go the Union’s way – so best to be rid of them.
Of course, the proposed elimination of the secret ballot vote in favour of reliance on signed membership cards only applies to the certification process, not decertification. When it comes time for employees to want to rid themselves of a union through decertification, signing a form against the union will not do. The NDP has preserved the vote in that scenario.
Below, we provide further background on each of the proposed changes.
Card Check Certification
The first change announced by Minister Bains is a return to the automatic “card check” method for union certification. Card check certification last existed in British Columbia in 2001.
When card check certification was previously removed from the Code, the number of new certifications in the Province decreased. It appears the reflection and decision making that occurs with a secret ballot vote worked against unionization.
The current vote requirement (which exists in most provinces) helps ensure that certifications are based on the actual wishes of employees. The reality is employees are sometimes pressured into signing union cards, or are misled about what signing a card means. The secret ballot vote, to a large measure, corrects or counter balances those mischiefs.
Under the proposed card check system, if a union is able to demonstrate the support of 55% of employees in a proposed bargaining unit by having those employees sign a membership card, the union will be automatically certified without a vote. Where less than 55% of employees in a proposed bargaining unit have signed a membership card, the Board may still order a vote, so long as at least 45% of employees have signed a membership card.
As noted above, in 2019, the expert panel appointed by the NDP recommended that British Columbia should not adopt the card check system unless other measures to curtail alleged employer interference during certification campaigns were unsuccessful. According to Minister Bains, although the British Columbia government followed the panel’s recommendation to use different methods to forestall perceived employer interference, those measures allegedly “failed”, making a switch to the card check system “necessary”, in the eyes of the NDP government.
To support the view this change was necessary, Minister Bains cited a small number of Labour Board cases. These few cases only serve to show the Labour Board continues to function and that complaints over employer interference are occasionally heard and sometimes sustained in the Province. They are also sometimes heard and dismissed. There are also of course complaints of misconduct by union organizers. In the vast majority of certification applications, no complaint is filed at all. In our view, there is no empirical evidence to support Minister Bains’ assertion that the card check system is necessary to secure employee rights enshrined in the Charter of Rights and Freedoms. In fact, in our view, the change diminishes employee rights.
We can expect to see a significant increase in union organizing activity as a result of this change. Employers should ensure their employee relations programs are effective and they are managing staff in a positive way that reduces the risk of employees seeking third party representation through a trade union.
Annual Raids in the Construction Industry
The second change announced is specific to the construction industry. Now, unions in the construction industry will be able to “raid” (a process by which one union replaces another at a workplace) unionized construction employers each year, during a defined yearly “open period”. Previously, such “raids” were generally only allowed every three years (depending on the length of the collective agreement). Of course, a secret ballot vote will continue to remain a key feature of a raid application. It is only with respect to new certifications that votes will be eliminated.
Following the 2019 review of the Code by the expert panel, the Code was amended to generally only permit raiding every three years for construction industry employers. This time period was consistent with the expert panel’s recommendations, which took into consideration the disruption that a raid can have on any workplace.
Notwithstanding the above, the newly announced amendment to the Code will allow an annual “raid period” in the construction industry in July and August of each year. Minister Bains stated that these changes acknowledge the uniqueness of the construction industry, where projects last for shorter time periods than in other industries, with the effect that construction workers have been largely unable to exercise their right to change union representation. Again, in our view, there is no empirical evidence to support that assertion. We believe this change is a response to a push from traditional building trades unions who want increased opportunities to raid unions they consider too “employer friendly”. To suggest that it only has to do with the length of construction projects is, in our view, not descriptive of the primary motivation.
Regardless of the motivations behind this change, construction industry employers should be prepared for this change to potentially impact existing projects this summer.
Both proposed amendments will have significant impacts on British Columbia employers. The political nature of these changes is highlighted by the lack of consultation with the business community and the failure to have the proposed changes considered by an expert panel – which often occurs before legislative changes are made to the Code.
At this time it is unclear how quickly this Bill will become law and whether any amendments will be made. Given the NDP majority, we expect the Bill to be pushed through quickly, with no meaningful amendments.
If you have questions regarding the potential impact of these changes, or wish to discuss them in more detail, please do not hesitate to contact one of the lawyers in our Vancouver or Victoria offices.