Labour and Bill 148: Five points that can impact your company

Yellow construction hat over Canada flag. 3d illustration

There are many components to Bill 148 that will have a significant impact on Ontario manufacturers but five amendments to Ontario’s Labour Relations Act (LRA) have the greatest potential to affect how your company does business.

The following LRA amendments came into force on Jan. 1:

1. Access to employee list. A union may apply to the Ontario Labour Relations Board for access to a list of employees in a proposed bargaining unit. If the employer disagrees with the proposed bargaining unit or the union’s estimate of employees stated in the application, the employer must, within two days of the application, serve on the board and union a notice of disagreement.

If it’s satisfied the union’s proposed bargaining unit could be appropriate and the union appears to have the support of at least 20% of the bargaining unit, the board may order the employer to produce the list. The list is to contain each employee’s name, phone number and – if available – personal e-mail address. The employer may also be ordered to provide additional employee information (such as job title) and any other means of contact provided by the employee (except home address).

The employer and union must take all reasonable steps to protect the list’s security and confidentiality. The list is to be disclosed only to the appropriate union officials and used for the campaign to establish bargaining rights.

The impact of this amendment is likely to be at least two-fold: it may make it easier for a union with access to contact information to organize part-time or casual employees; and it will likely result in an additional layer of litigation at the board over whether the union appears to have the required support. It remains to be seen how employees will react to a union being provided access to their contact information without their knowledge or consent.

2. First contract mediation/arbitration. An employer or union now has access to mediation and mediation/arbitration in the context of a first collective agreement on request. Either party may apply for the appointment of a first agreement mediator at any time after the Minister of Labour has issued a “no board” report. After the application is filed the minister must appoint a mediator. During the 45-day period following the mediator’s appointment, neither party may engage in a strike or lockout. If the parties have not reached a collective agreement after 45 days, either party may apply to the board for first agreement arbitration. The application may be dismissed, further mediation ordered or the parties directed to first contract mediation-arbitration.

Any pending displacement certification application or application to terminate bargaining rights, even if filed before an application for the appointment of a mediator, must be temporarily suspended pending the completion of the first agreement mediation and arbitration process. Where mediation-arbitration is ordered, neither party may commence a strike or lockout and any ongoing strike or lockout must terminate.

Automatic access to mediation and mediation-arbitration will significantly impact how parties negotiate a first collective agreement. Even if a trade union can’t maintain support among the bargaining unit employees, including when there’s genuine opposition among them, it can nevertheless secure a first agreement through the arbitration process without ratification by the employees.

This amendment significantly enhances the power of a trade union to secure demands without the support of the employees in the bargaining unit. In addition, a trade union could unilaterally stop an otherwise timely termination or displacement application by simply making the request for the appointment of a first contract mediator.

3. Bargaining unit consolidation. A union (or employer) may apply to the board to have a newly-certified bargaining unit consolidated with an existing unit of an employer represented by the same union, provided the union and employer have not entered into a collective agreement with the newly certified unit. The board may subsequently consolidate the units, amend the bargaining unit description, or order the existing collective agreement be applied to the newly certified unit or terminate a collective agreement. Additionally, a union and employer may make 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.

Consolidating of bargaining units may raise a host of issues relating to – for example – the integration of seniority lists, job classifications and wage rates. The power to consolidate during or after certification also includes the power to order the existing collective agreement apply “with or without modification” to the newly certified bargaining unit if it’s consolidated with an existing unit.

Employee choice can be compromised whenever a labour board is given the power to alter the scope of an existing bargaining unit. Smaller groups of employees that initially had a say whether or not to be unionized lose their voice as larger units swallow them.

4. Return to work post-strike. 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.

The obligation to return striking employees and displace those hired to do the work during the strike or lockout is generally dealt with by agreed upon return to work protocols. The amendment will only impact an employer involved in a particularly long strike or lockout where the only obstacle to settlement is the displacement issue.

5. Enhanced “just cause” protection. An employer will be required to prove “just cause” where it terminates or disciplines an employee following certification, or following the commencement of a lawful strike/lockout. In both cases, this protection ends once the parties have reached a collective agreement or the union ceases to represent employees in the bargaining unit.

The practical result of this provision is a probationary employee will often have greater protection against dismissal prior to a collective agreement coming into effect than after the agreement is in force.

There are also several significant amendments to the Employment Standards Act that will impact Ontario manufacturers. Each of these amendments and additional amendments to the LRA are addressed in, Bill 148 Fair Workplaces, Better Jobs Act, 2017 Executive Summary.

Matthew Badrov is a lawyer with Sherrard Kuzz LLP, an employment and labour law firm representing management. E-mail mbadrov@sherrardkuzz.com. Call (416) 217-2221, (416) 603-0700 (main) or (416) 420-0738 (24 hour). Visit www.sherrardkuzz.com.

This article appeared in the March 2018 print issue of PLANT Magazine.