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Legal Guide


Trade unions have considerable freedom to organize employees, with limited rights of employer interference or opposition. There are essentially three stages to an organizing drive, which are:

  1. A     THE ORGANIZING CAMPAIGN
This stage consists of signing memberships, with a view to signing at least 45 percent of employees in British Columbia, 40 percent in Ontario and Alberta, and 35 percent in Quebec, thereby entitling the union to a vote. A union may be certified without a vote in Quebec and in the federally regulated sector if more than 50 percent of the employees have signed membership cards and in the construction sector in Ontario if more than 55 percent of the employees have signed membership cards or in the case of unfair labor practices. Most jurisdictions are similar in procedure, including the ability to obtain certification without a vote. In British Columbia and Ontario, however, a union cannot be certified without a representation vote.
  1. B     Filing the application for certification

Once an organizing campaign has begun and particularly after an application is filed, the employer must be careful not to commit any unfair labor practices in communicating opposition to the union, and must comply with the legal procedures of the appropriate Labor Relations Board which is charged with certifying unions as bargaining agents, and otherwise regulating labor relations in the province. It is considered an unfair labor practice to threaten, coerce or intimidate employees in an effort to influence their votes, or to participate in the formation of a trade union.

  1. C     The vote

As noted above, in Ontario, a vote is required where support for the union appears to be 40 percent or more in the bargaining unit proposed by the union. This vote is generally held five business days after the application for certification is filed. In British Columbia, a vote will be ordered where 45 percent or more of the members of the proposed bargaining unit are members of the union. In the federal jurisdiction, a vote will be ordered if between 35 percent and 50 percent of the employees in the proposed bargaining unit have signed membership cards. Upon an application for certification by a trade union, the Board must determine if the unit is appropriate for collective bargaining. In making this determination, the Board must examine records and make other inquiries it considers necessary, including the holding of hearings. Commission of an unfair labor practice may lead to certification of a trade union without a vote, except in Quebec and Ontario where there is no automatic certification in case of employer misconduct. If a simple majority of the employees cast a ballot vote for the union, the union will be certified. If a union is certified, the union has absolute and, generally, indefinite rights as the bargaining agent for all employees in the determined bargaining unit. The employer and the individual employees, therefore, lose their right to bargain individual contracts of employment.

Collective bargaining

If a trade union is certified, the employer must bargain in good faith with the union as the representative of the employees in the bargaining unit, in an attempt to reach a collective agreement. Inadequate or obstructive bargaining by the employer may result in further litigation before the Board. Where a first agreement is not negotiated, upon application to the appropriate division of the British Columbia, Alberta or Ontario Labor Relations Board, as the case may be, a collective agreement may be imposed through arbitration. A similar mechanism exists in Quebec.

Strikes, pickets and lockouts

In British Columbia, Alberta, Ontario and Quebec, except as specifically set out in the relevant legislation, work stoppages are strictly prohibited at all times during the currency of a collective agreement and during negotiations up to and beyond conciliation.

In British Columbia and Alberta, if private negotiations do not result in a collective agreement, members of the bargaining unit may commence strike action or the employer may commence lockout procedures. A vote must be conducted in accordance with the regulations prior to commencing a strike. If the vote favors a strike, written notice of the strike must be served on the employer and on the Board. There is then a minimum 72-hour period before the union can legally strike or the employer can legally lockout employees. Quebec legislation is similar, except that the only notice required is a written notice to the Minister of Labor within 48 hours following the declaration of the strike.

Ontario requires the parties to submit to a Ministry of Labor-supervised conciliation process if private negotiations do not result in a collective agreement. If conciliation is not successful, then there is a final “cooling off” period of two weeks before the union can legally strike or the employer can legally lock out employees. A vote must be conducted prior to commencing a strike.

Peaceful picketing of a struck employer is permissible. In Ontario, it must be off the employer’s premises and for the purpose of communicating information, rather than for the purpose of preventing access to the premises. Replacement workers may generally be employed. In British Columbia and Alberta, picketing is permissible at or near the site where a member of the trade union performs work under the control and direction of the employer, if the work is an integral part of the employer’s operations and the site is the site of the lawful strike or lockout. In British Columbia, replacement workers may not be employed in any circumstances. In Quebec, replacement workers may not be employed, except in specific circumstances.

Arbitration and judicial review

During the term of a collective agreement, all disputes between the union and the employer, including employee discipline and discharge, are submitted through a compulsory grievance procedure and, if not settled, to binding arbitration. Arbitrators, typically senior lawyers or professors, are either privately selected or appointed by the responsible minister.

Ontario, Alberta and Quebec do not provide for appeal of arbitral decisions. In British Columbia, the Labor Relations Code provides for a limited right of appeal to the Labor Relations Board. There is another parallel right of appeal to the British Columbia Court of Appeal for matters or issues of general law not covered by the right of appeal to the Labor Relations Board. Otherwise, in British Columbia, Ontario and Quebec, arbitral decisions may only be judicially reviewed. Judicial review empowers a court to quash a decision and return the case to arbitration, but only if an arbitrator has exceeded his or her jurisdiction, or interpreted or applied the collective agreement in an unreasonable manner. It should be noted that Labor Relations Board decisions in British Columbia, Alberta and Ontario are also exempt from appeal and can only be judicially reviewed (and only for certain limited purposes).

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