On October 23, 2018, the Conservative Ontario government tabled Bill 47, Making Ontario Open for Business Act, 2018 to repeal certain amendments made by the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) that introduced reforms and more job protections under the Employment Standards Act and Labour Relations Act. In addition, Bill 47 repeals Ontario Regulation 375/18 dealing with public holiday pay and makes changes to the apprenticeship program.
Bill 47 is divided into three parts. Schedule 1 deals with changes to the Employment Standards Act, schedule 2 deals with changes to the Labour Relations Act and Schedule 3 introduces new changes to the Ontario College of Trades and Apprenticeship Act, 2009.
This article deals with changes to the Labour Relations Act under Bill 47.
As outlined in Bill 47, when enacted, it will make the following changes to the Labour Relations Act (LRA):
Bill 47 repeals the rules that forced card-based certification on the workers in home care, building services and temporary help agencies. Instead, the government will preserve the right of these workers to vote through a secret ballot.
As a result, a secret ballot vote will be required to certify a trade union in all industries other than the construction industry. Amendments found in Bill 47 does not change the provisions of the LRA providing for card-based certification in the construction industry.
Bill 47 is repealing the employer’s obligation to hand over employee contact information once a union establishes 20 percent support for certification. The government has indicated that the change is to protect Ontarians’ privacy and personal information.
Any application for employee lists by a trade union that is outstanding on the day the relevant section of Bill 47 comes into force will not proceed.
Once the relevant section in Bill 47 comes into force, the trade union that has been given such a list since January 1, 2018, must destroy the list in such a way that it cannot be reconstructed or retrieved.
Structure of bargaining units
Subject to transition rules, Bill 47 repeals the power of the OLRB to review and consolidate newly certified bargaining units with existing bargaining units and empowers the OLRB to review the structure of bargaining units where the existing bargaining units are no longer appropriate for collective bargaining. Bill 47 effectively restricts the OLRB’s ability to review and consolidate newly certified bargaining units with existing bargaining units to circumstances where it deems bargaining units are no longer appropriate for collective bargaining.
This rule does not apply to the construction industry.
First collective agreement mediation and mediation-arbitration
Except for the construction industry and subject to transition rules, Bill 47 repeals the first collective agreement mediation, the mediation-arbitration provisions and the provisions for education support and reinstating the Labour Relations Act rules for access to first agreement arbitration that were there prior to Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) came into force. First collective agreement arbitration will resume being granted where, in the OLRB’s opinion, collective bargaining has been unsuccessful because of the refusal of the employer to recognize the bargaining authority of the trade union, the uncompromising nature of any bargaining position adopted by the respondent to the application without justification, the failure of the respondent to the application to make reasonable or expeditious efforts to conclude a collective agreement, or any other reason the Board considers relevant.
The Bill will reinstate the remedial certification rules that were in the Act prior to Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) came into force, which was the Board has to order remedial certification. The remedial certification rules deal with the test and preconditions for the Ontario Labour Relations Board (OLRB) to certify a union as remedy for employer misconduct. It will require the OLRB to determine whether a vote or new vote would be a sufficient remedy, or whether the only sufficient remedy would be to certify the union.
Bill 47 repeals the authority of the OLRB to expand successor rights to contract tendering in publicly funded services and enhanced successor rights for unions in the building services industry.
Bill 47 reinstates the six-month limit on an employee’s right to reinstatement following a strike or lock-out. The Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) made it apply indefinitely, even where a strike exceeds six months.
Fines and penalties
Bill 47 is repealing the enhanced fines for breach of the Labour Relations Act and returning them to what was there prior to the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) came into force by decreasing the fines from $5,000 to $2,000 for individuals and from $100,000 to $25,000 for organizations.
Streamlining and improving processes
Bill 47 is expanding and recognizing alternative means of communications under the Act (e.g., facsimile, email) for various types of documents, and deeming the time of the release or receipt of the document. It is also allowing the OLRB to make rules to expedite certain proceedings without the requirement of an order of the Lieutenant Governor in Council to establish a coming-into-force date for the rule.
Furthermore, Bill 47 facilitates and requires the publication of documents (collective agreements and arbitration awards) filed with the Minister, including publication on a government website.
- Any notice or communication made under the LRA can be sent by mail, courier, fax, email, or any other method the government chooses to prescribe.
- Documents sent to the Minister by fax or email is deemed received the day they are sent if sent by 5:00 p.m., or the next day if after 5:00 p.m.
- Decisions of the OLRB, no board reports, and arbitrator decisions is deemed to be released on the day they are sent.
- The language around when the parties enter a legal strike or lockout position is changed and are deemed to enter a legal strike or lockout position 16 days after the release of the no board. As stated by the Ontario Ministry of Labour this clarifies the following situation: “It’s legal to strike or lock-out beginning on the 17th day after the minister mails the “no board” notice. For example, if the notice was mailed on August 1st, the parties can legally strike or lock out on August 18th. There can be some confusion about this because the act states that the period is 14 days after the release of a notice. The notice is not deemed to have been released, however, until the second day after it was mailed. This extends the period to 16 days, and since they must be ‘clear’ days, it means that a strike cannot legally start until the beginning of the 17th day. (See Sections 79(2)(b) and 122(2)(a) of the Labour Relations Act, 1995). In addition to the above, parties covered by the Crown Employees Collective Bargaining Act (CECBA). must have negotiated an essential services agreement before a strike can be lawfully initiated.” This is a technical change that does not change strike and lockout timelines. Rather than the statute indicating a 14 day cooling off period with the no board deemed received on the second day after it is mailed, the no board is deemed received the day it is issued and the cooling off period is extended to 16 days.
- The Minister is required to make available to the public copies of collective agreements.
- The provision providing for educational support upon request for workplace parties is eliminated.
Bill 47 includes transition rules that if any matter is in progress or before the OLRP dealing with rules that were changed under the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148) when Bill 47 comes into force and is not finalized, then the matter before the OLRB will be terminated on that day or any other matter will be dealt with under the new rules.
In relation to the repeal of card-based certification on the workers in home care, building services and temporary help agencies to secret ballot vote:
- Applications for certification filed before Bill 47 will be disposed of under the prior rules permitting card-based certification in the specified sectors.
- Applications for certification filed on or after Bill 47 that are not disposed of on the day the relevant section comes into force will proceed by mandatory secret ballot outside the construction industry.
Further, where the parties are in first collective agreement mediation on the coming into force date of Bill 47, the mediation must be terminated immediately. Where the OLRB has directed first collective agreement arbitration before the coming into force date of this provision, the arbitration will proceed pursuant to the rules passed under the Fair Workplaces, Better Jobs Act, 2017 (introduced as Bill 148). Where an application for first collective agreement arbitration is outstanding before the OLRB, but the OLRB has not yet ordered first collective agreement arbitration as of the coming into force date, the application will be dealt with under the new rules.
Any application for bargaining unit consolidation that is before the OLRB but has not been determined by it as of the date the new section of Bill 47 on the consolidation of bargaining units comes into force, will be determined under the new section.
Any application for remedial certification that is before the OLRB but has not been determined by it as of the date the new section of Bill 47 comes into force will be determined under the new section.
The provisions of Bill 47 in relation to the Labour Relations Act will come into force on royal assent when enacted. It is expected to receive royal assent before the end of the year.
Employers and trade unions have a lot of work ahead reviewing and revising yet again their obligations under the law and how the changes impact them.