Part II – The Neverending Story: The Labour Relations Code Strikes Bac…

Picketing

The definition of what constitutes legal “picketing”
under the Code has been narrowed, and now expressly
excludes consumer leafleting from its definition, provided the
leafleting does not unduly restrict access to a place of business,
prevent a business from operating or prevent employees from
reporting to work. While this is more of a formal change than a
substantive one (the Supreme Court of Canada having already ruled that the former definition was
invalid), the change provides unions with more explicit legislative
protection to draw public attention to workplace concerns without
being considered to have engaged in “picketing” under the
Code. (Code, section 1)

Certification Vote

The Code now requires that a certification vote occur
within five “business days” (excluding weekends and stat
holidays) of an application for certification, replacing the
previous ten “day” standard. (Code, section
33)

Employer Communications

While relatively benign on its face, the Code now
restricts employer communications directed to employees to
“statement[s] of fact or opinion[s] reasonably held with
respect to the employer’s business”. This change will
affect employers and their ability to communicate with their
employees, particularly during certification drives. Employers will
need to be cautious in light of this change as we wait to see how
the Labour Relations Board will interpret this new language,
particularly in light of the new provision regarding remedial
certifications (discussed below). (Code, section 8)

Remedial Certification

The Code now contains an express provision granting the
Board the authority to certify a bargaining unit without a vote if
the employer has engaged in an unfair labour practice. In
conjunction with the change to employer communications, this could
have significant impacts on the union certification process and its
outcome. (Code, section 14)

Increased Fines

The maximum fines that can be imposed for a refusal or failure
to carry out an order made under the Code has been
significantly increased up to $5,000 for an individual and $50,000
for an employer or union. (Code, section 158)

Case Management Conference

In addition to expanding access to settlement officers to assist
with grievance matters, arbitrators are now required to schedule a
case management conference within 30 days of being appointed to
hear the grievance in order to schedule the exchange of documents,
hearing dates and to attempt to settle the dispute. It is hoped
that this amendment will streamline and bring consistency to the
grievance arbitration process. (Code, section 88.1)

Expedited Arbitration

The Code has further expedited the engagement of the
expedited arbitration process, and now requires applications for an
expedited arbitration to be made within 15 days of the completion
of the grievance procedure (down from 45 days). From there, the
arbitrator assigned to the grievance must hold a case management
conference within seven days of his or her appointment and conclude
the arbitration itself within 90 days of the date the matter was
first referred to arbitration. Following the end of the hearing,
the arbitrator, if requested to do so, is required to provide an
oral decision within a single day with a written decision to follow
within 30 days. (Code, section 104).

Secret Ballot

This one is not a change, but important to note nonetheless.
Following extensive debate in the legislature over the merits of
retaining or doing away with the secret ballot vote on
certification applications, the Code has retained the
secret ballot vote. Employers will be relieved that they are not
required to return to the pre-2002 “card check” system
for certification, which permitted a union to certify a bargaining
unit by signing up more than 50 percent of the proposed bargaining
unit employees. (Code, section 39)

Statutory Freeze Period

The Code now prohibits any changes to terms of
employment for twelve months following the certification of a new
bargaining unit, up from the previous four months, and has
increased the period during which a bargaining unit can apply to be
de-certified, from ten to twelve months.