Glance at Labour Relations Act Requirements Under Ontario Bill 148

On November 27, 2017, the Fair Workplaces, Better Jobs Act, 2017 (Bill 148) received royal assent and is now law. Bill 148 makes significant amendments to the Labour Relations Act, 1995 and are designed to make it easier for unions to obtain collective bargaining certificates in the private sector. Although these changes were originally scheduled to come into force six months after Bill 148 received royal assent, they will now come into force on January 1, 2018. Significant changes to the LRA include:

• Card-based certification in specified industries. While card-based certification currently applies to the construction industry, Bill 148 expands it to the temporary help agency industry, home care and community services industry and building services sector. The significance of card-based certification is it allows a union to become certified without a vote where it can demonstrate it has the support of greater than 55 percent of the proposed bargaining unit. Where a union can meet this threshold, the Ontario Labour Relations Board (the “Board”) can (and generally will) certify the union without the necessity of a secret ballot vote. A vote will still be ordered where support for the union is between 40 and 55 percent. Impact: The new card-based certification system for these three industries will make organizing campaigns substantially less cumbersome for trade unions operating in those industries.
• Access to employee list (contact information). A union will be able to apply to the Board for access to a list of employees in a proposed bargaining unit for the purpose of organizing the workplace. This is one of the most controversial amendments to the Labour Relations Act. To obtain access to the list, the union must demonstrate membership support from at least 20 percent of the proposed bargaining unit. The employee list is to contain each employee’s name, phone number and personal email address (if the employer has this information). If equitable to do so, the Board may also order the employer provide additional employee information (such as job title) and any other means of contact the employee may have provided to the employer, except for the employee’s home address. Both the employer and the union will be required to ensure that all reasonable steps be taken to protect the security and confidentiality of the list at all stages. If the list must be destroyed, it must be destroyed in a secure way so that it cannot be reconstructed or retrieved. Where a union is provided with the employee list and subsequently files an application for certification, the proposed bargaining unit in the application no longer needs to be the same as the proposed bargaining unit used to obtain the employee list. Impact: Having a list and contact information of the employees in the proposed bargaining unit will assist trade unions with their organizing efforts.
• Remedial certification. Under Section 11 of the Labour Relations Act, the Board may certify an employer where, as a result of an employer’s actions (generally in the course of a union organizing campaign), the Board is satisfied (a) the true wishes of the employees in the bargaining unit are not likely to be reflected in a representation vote, or (b) the union was not able to obtain membership cards from at least 40 percent of the individuals in the proposed bargaining unit at the time an application for certification is filed. Bill 148 dictates an employer must be certified where the Board finds a violation of Section 11. This will no longer be a discretionary remedy. Impact: Finding of employer misconduct during an organizing campaign will result in automatic certification of a trade union.
• First contract mediation/arbitration and time limits. An employer or union will have access to mediation and mediation/arbitration in the context of a first collective agreement on request. Where the Board grants an application for mediation-arbitration, any concurrent displacement or decertification application is dismissed and the parties cannot commence or continue any strike or lockout. Impact: Both unions and employer are now required to use the intensive mediation process before seeking binding first-contract arbitration.
• Votes. The OLRB will be able to conduct votes outside the workplace, including telephone and electronic voting, and to authorize Labour Relations Officers to give directions relating to a vote and voting arrangements to ensure neutrality of the voting process. Impact: The availability of new voting procedures will make voting more accessible to employees.
• Timeline to strike. Employees will not be permitted to strike, nor will a person or union be permitted to authorize a strike, from the date the Minister appoints a mediator until 45 days later. The OLRB will not deal with decertification or displacement applications until 45 days after the Minister appoints a mediator. The parties may apply to the OLRB to direct the settlement of a first collective agreement by mediation-arbitration at any point in the 45 days after the Minister appoints a mediator.
• Expanded successor rights. The successor rights provisions will be applied to the retendering of building services contracts. Moreover, where a contract for building services comes to an end and a new provider contracts to provide those services, this change in service provider will be deemed to be a “sale of a business” for the purpose of the Labour Relations Act. Accordingly, if a service provider is certified and bound to a collective agreement and loses a building service contract to a new service provider, that new service provider becomes bound to the collective agreement and any outstanding obligations incurred but not satisfied by the previous service provider. In addition, Bill 148 will enable the government to enact regulations applying the successor rights provisions to the retendering of other publicly funded contracted services. Impact: There will be significant cost implications for the end users of building services, as there will be no incentive to retender services contracts to non-unionized service providers.
• Bargaining unit consolidation. Following certification, a union (or employer) may apply to the Board to have a newly certified bargaining unit consolidated with an existing bargaining unit of the employer represented by the same union. Additionally, a union and employer may make a joint application to the Board to modify an existing bargaining unit structure, which may include consolidating units, amending collective agreements to address a consolidated unit and terminating a collective agreement in existence prior to any consolidation.
• Return to work post-strike. The six-month limitation on an employee’s right to be reinstated at the conclusion of a legal strike or lockout will be removed. An employer will be required to return an employee to work following a strike or lockout, regardless of how long the employee may have been out of the workplace. Impact: The right to return to work during certain bargaining periods will be enforceable through grievance arbitration.
• Enhanced “just cause” protection. An employer will be required to prove “just cause” where it terminates or disciplines an employee following certification. An employer will also be required to prove “just cause” where it terminates or disciplines an employee following the commencement of a lawful strike/lockout. In both cases, this “just cause” protection ends only once the parties have reached a collective agreement or the union ceases to represent employees in the bargaining unit. Impact: The right not to be disciplined without just cause during certain bargaining periods will be enforceable through grievance arbitration.
• Interim relief. Bill 148 expands the Board’s power to issue an interim order or decision. The Board will now have the power to (a) issue an interim decision or order in any application (including, for example, ordering the temporary reinstatement of a terminated employee), (b) put conditions on any interim decision or order and (c) issue any interim order or decision without reasons. Impact: The Board will be able to exercise the powers exercised by many other administrative tribunals under the Statutory Powers Procedure Act.
• Fines for LRA violations. Maximum fines for LRA violations will be increased to $5,000 for individuals (up from $2,000) and to $100,000 for organizations (up from $25,000). Impact: Both unions and employers are facing increased monetary penalties for contraventions of the Act.

The Fair Workplaces, Better Jobs Act, 2017 also makes changes to the Ontario Employment Standards Act and the Occupational Health and Safety Act. Information on those changes can be found here.