Human Resources Legislative Update
New Private Member Bill Proposes “Card Check” Unionization, First Contract Arbitration Model for Ontario
Date: April 5, 2017
On April 4, 2017, the New Democratic Party (NDP) of Ontario introduced private member legislation that would amend the Labour Relations Act, 1995 (Act) to bring “card check” union certification back to Ontario for the first time since 1995, and to implement a new first contract arbitration process.
It is important to note that private member Bills seldom pass into law. Furthermore legislation proposing a “card check” model has been regularly introduced by the NDP since 1995 and has not gained traction. However, given the increased focus on labour policy in Ontario with the pending release of the Final Report in the Changing Workplaces Review (CWR), a legislative proposal such as Bill 119 may provide a framework for legislative change in this area.
Bill 119, the Fairness in First Contracts and the Right to Representation Act, 2017, would, if passed in its present form, provide the following significant changes to the current labour relations framework:
- “Card Check” Certification. Currently, the certification process in Ontario involves a fast vote, secret ballot process in all sectors except construction. A union membership card-based certification process – whereby an employer could find itself unionized if a defined percentage of employees in the union’s proposed bargaining unit signed a membership card – has not existed in this jurisdiction since 1995. Bill 119 amendments would permit a union applying for certification as bargaining agent to elect to have the certification application dealt with without a vote by demonstrating that more than 55% of the employees in a proposed unit are members of the union on the date the application is filed.
- First Agreement Arbitration. Amendments would permit either party to request first contract arbitration by contacting the Minister, who would be required to refer the matter to a board of arbitration if (1) 30 days have elapsed since the day on which the parties were in a strike or lock-out position, and (2) the parties have been unable to enter into a first collective agreement. Alternatively, a party would be permitted to apply to the Ontario Labour Relations Board (Board) following issue of a “no Board” report or a conciliation board report, where the parties have also been unable to enter a first contract agreement. In addition:
- the party seeking first agreement arbitration would be required to include a copy of a proposed collective agreement with the request and provide a copy to the other party
- the other party would have 10 days to file with the Minister / Board a copy of a proposed collective agreement
- upon initiation of first contract arbitration, no alternation of working conditions or strike / lock-out would be permissible, and any strike or lock-out action already in progress would cease immediately.
As we previously reported, “card check” certification is one of several labour policy approaches being considered by the Special Advisors. The CWR Final Report is expect to be released this Spring, and to provide numerous recommendations – potentially including changes to the current secret ballot vote-based certification process.
This elimination of the right to a secret ballot vote, to be replaced by a “card check” system, is also currently pending federally under the Canada Labour Code (Bill C-4) and in Newfoundland and Labrador (Bill 37) and is an open matter of a policy review in Alberta. However Manitoba has recently legislated an end to card check and returned to secret ballot votes under its Bill 7.
We continue to monitor the CWR and related labour policy initiatives and will provide you with updates as they are available. For background information on the CWR, please contact your regular Hicks Morley lawyer or consult our prior publications:
- Changing Workplaces Review – Focus on the Labour Relations Act, 1995 (August 3, 2016)
- Changing Workplaces Review – Interim Report Issued (July 27, 2016)
