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Chapter 11: Access to meaningful collective bargaining: the decision to unionize
The broad issues surrounding the acquisition of bargaining rights are probably the most contentious between employers and unions and certainly some of the most important from a public policy point of view. In the last approximately 25 years, there have been many important changes in the legislation and in the interpretation of the Constitution. There have also been changes in the labour market and in the structure of employment. These changes, together with the decline in union coverage in the private sector, has made rethinking and reassessment in this area necessary.
The decline in unionization in the private sector (from about 19.2% in 1997 to only 14.3% in 2015),
A second important recent development is the change in the law, as set out by the highest court in Canada, where freedom of association has become a broadly interpreted constitutional right. The Supreme Court of Canada has told Canadians and government that freedom of association requires meaningful access by Canadians to collective bargaining.
A third notable set of events are the rapid changes to the certification rules. After more than a 40-year period of relative stability in the certification system, the rules changed rapidly in 1993, 1995, 1998, and then again in 2005.
Changes have been initiated by all three political parties. For reasons that were not always apparent and were not supported by outside independent analysis, everyone seemed to reject the status quo on the acquisition of bargaining rights that had prevailed from the 1940s and 1950s to 1993. Our goal is to try to find a new stability and to recommend a set of changes in this area that can be accepted as a basis for going forward for some time into the future, unless subsequent developments show them to be erroneous or insufficient.
Until 1993, the process for the acquisition of bargaining rights by trade unions was widely accepted as a consensus compromise developed over many years of Progressive Conservative, followed by Liberal governments, although to be fair, some in the trade union movement always opposed the petition process that was part and parcel of card-based (or card-check) certification in those years. The form of card-based certification that was in place for this long period permitted unions to be certified without a secret ballot vote if more than 55% of employees signed membership cards. However, the system allowed a short period after a certification application for employees who signed cards to change their minds (sign a petition) and for employers to make their views on unionization known, provided they did not interfere, threaten, promise, coerce, intimidate or use undue influence (hereafter, collectively referred to as “illegal activity” or “employer misconduct”). If enough employees changed their minds, there would be a secret ballot vote. Due to the presumptive power imbalance in the workplace between employers and employees, when employees purported to change their minds, the onus was on employees to demonstrate that the change was voluntary and did not occur because the hand of the employer was behind it or because there was a perception of employer involvement in the change. In most cases, employees had difficulty demonstrating that the change of heart was voluntary, either because there was employer support or, more often, because there was the perception or appearance of the hand of the employer behind the change.
The new card-based system instituted from 1993 to 1995, under Bill 40, differed from the old system in that changes in employee views past the application date were not legally relevant. If the union had more than 55% support based on the membership evidence at the date of application, it would be certified. This was also the approach that had been in place under the Canada Labour Code for many years.
This change was perceived by the employer community and the subsequent government as an important and unwelcome change from the previous decades-old status quo. However, in 1995, the newly-elected government passed legislation (Bill 7) requiring secret ballot votes in every case. This was a new and radical departure from Ontario’s historical approach. The new compulsory secret ballot vote provisions have remained in place for over 20 years, with one exception: card-based certification was brought back for the construction industry in 2005. The pre-1993 system over which there was broad consensus, has never been revived.
The remedial certification (without a vote) provisions of the Labour Relations Act, 1995 (LRA) have changed even more frequently since 1993. Prior to 1993, if employer misconduct resulted in the true wishes of employees being unlikely to be ascertained in a vote, the union would be certified without a vote, provided there was adequate membership support for bargaining. Then in 1993, the requirement for adequate membership support for bargaining was eliminated. However, in 1995, the requirement for adequate membership support was reinstated. More importantly, in 1995, remedial certification was limited to situations where the Ontario Labour Relations Board (OLRB) found that no other remedy, other than a second vote, would counter the employer’s misconduct. Then, in 1998, remedial certification was eliminated altogether. Finally, in 2005, remedial certification was reinstated, but the OLRB could now certify the union without a vote only if “no other remedy would be sufficient to counter the effects of the contravention.” That remains the situation today. The OLRB may also now consider the results of a previous representation vote and whether the union has “adequate membership support” for collective bargaining.
These changes were introduced without any independent or outside assessment and, from time to time, represented political positions and some compromises over the interests of labour and employers, with profound impact on the rights of employees.
There have been few cases of remedial certification since the 2005 amendments, numbering perhaps an average of three per year. In our view, this is not surprising given that there was a complete absence of remedial certification from 1998 to 2005 and that since 2005, there has been restrictive remedial certification. In any event, the rules surrounding remedial certification are important, not because they affect the results in a few litigated cases each year, but because the rules for remedial certification strongly impact the conduct of the parties in the hundreds of certification campaigns that occur every year. It is that conduct we seek to influence through our recommendations, rather than simply the outcomes in a few cases at the OLRB.
We acknowledge that the reasons given for why there have been few cases of remedial certification are based on anecdotal evidence and are somewhat speculative, but in the view of experienced union organizers with whom we have spoken, it is not because employer conduct affecting the vote has declined. Employer conduct will always have an impact on the vote. Rather, based on our discussions, there are few applications because, based on the current legislation, unions are reluctant to seek remedial certification in circumstances where support for the union has been undermined by unlawful employer conduct. Where employee support has been undermined by unlawful employer conduct, even if certification is achieved, collective bargaining is very difficult without the availability of remedial first contract arbitration. Where union support is eroded by employer misconduct, support for achieving reasonable collective bargaining objectives is also eroded. Decertification is a more likely prospect where there has been employer misconduct. Also, cases in which a union seeks remedial certification tend to be expensive and litigious. The small number of cases in this area is likely circumstantial evidence that the law is too weak to be helpful in many cases.
Much more important than the number of cases, however, is how the rules around certification and remedial certification affect employer and union conduct. What we seek to accomplish is a fair and common sense system that may reduce the prospect of unlawful conduct during organizing drives and that is both workable and consistent with the constitutional right of employees to a meaningful process of collective bargaining.
11.1 Criteria for our recommendations
In our view, the approach to the issues in this area must involve an integrated and comprehensive set of ideas, not a hodgepodge of compromises and cherry-picking amongst the various elements that make up the issues facing policy-makers. That is why one of our most important recommendations regarding the acquisition of bargaining rights is that our recommendations in this area, specifically Recommendations 1 through 6, be accepted in their totality as a package.
We have carefully put together our recommendations to reflect balance and policy; they constitute a complete system and framework. For example, if one starts with secret ballot votes as a bedrock position, certain consequences follow. To permit unions or employers to select only the elements they prefer, but not the elements they do not embrace, is not a rational way to make policy. Both sides will have their reasons to criticize aspects of our package of recommendations but if the goal of labour relations policy is to please the parties, there will be very little policy change indeed.
All unions strongly advocated for what they refer to as the “restoration” of card-based certification, which, it is said, was in place for decades. As we pointed out above, the form of card-based certification that was in place prior to 1993 was quite different from the 1993 model. The 1993 model was in place outside of construction for only two years and is the model the unions now seek. The unions claim that the card-based system is democratic, and, in effect, that it is a necessary counterweight to illegal employer misconduct in certification campaigns because it measures support often before the employer knows there is an organizing campaign. The reality behind union support for card-based certification is that unions tend to succeed more often in a card-based model than in a compulsory vote model.
Employers oppose card-based certification as strongly as unions support it. Card-based certification is a focal point of employer opposition to changes to the LRA. Every employer group strongly opposes card-based certification. Even though Ontario had a system in place for more than 40 years that provided for certification without a vote based on card-based check majorities of more than 55%, employers distrust the authenticity of the card-based system. Employers tend to believe employees sign cards because they are potentially fooled by undeliverable promises, or because of misrepresentation, undue union or peer pressure, or intimidation. Moreover, they stress that the democratic norm for voting in our society is a secret ballot vote where the privacy of the individual is protected. At the bottom of this employer position, however, is that unions tend to be less successful when there are secret ballot votes and an important part of that system is that the employer has an opportunity to make its views known prior to the vote.
The union opposition to the present system and the reason for the union support of card-based certification is practical and important. First, the unions say they encounter powerful and often unlawful opposition from employers to applications for certification and that this activity frequently frightens and intimidates employees. Their experience is that employee support for the union drops dramatically if employees become afraid for their jobs or benefits once the employer begins to mobilize. Sometimes employer opposition and misconduct is overt. In many cases, it is hidden or subtle, but no less effective.
In the study by Professor Sara Slinn undertaken for this Review, she substantiated that the academic literature supports the view that reductions in certification success are associated with some specific employer tactics including many that are illegal:
This research has found that significant reductions in certification success are associated with specific employer tactics including the tactic of frustrating union access to employees (Bentham, 2002). Reductions in likelihood of certification success are also associated with: illegal terminations (31% reduction), group coercion (19% reduction), and ULPs [unfair labour practices] directed at individual employees to employees (7% reduction) (Riddell, 2001). As well, reductions in certification success are associated with captive audience speeches, small group meetings held by the employer, distribution of anti-union literature, employer promises of increased wages and benefits, tightening of work rules, threats against union supporters, and interrogating workers (Thomason and Pozzebon, 1998). (Page 13)
footnote 446
Certainly, the facts seem to bear out that certification applications tend to be less successful where there is no card-based certification. The difference in percentage terms is high. During card-based certification under Bill 40, 72.7% of certification applications succeeded while under the first few years of the Bill 7 compulsory vote procedure, the success rate fell to 64.3%.
More generally, the union certification success rates in card-based regimes tend to be about 20 percentage points higher than under compulsory vote systems and studies show that this difference is concentrated in the private sector.
The power of the employer to influence the vote process through overt or subtle actions including sometimes – and the unions would say oftentimes – misconduct, is the central reason why unions seek card-based certification. The vulnerability of employees to employer misconduct that can nullify or impair the rights of employees is the most compelling justification for the card-based system.
In this debate between unions and employers, we think the most important considerations in deciding on an outcome are the criteria that lie at the heart of the constitutionally-protected process of meaningful collective bargaining. According to the Supreme Court of Canada, these criteria are employee choice and employee independence.
To reiterate, freedom of association is a constitutional Charter right of individual Canadians, entitling them to a meaningful system of collective bargaining, if they desire it. As the Court said, the purpose of the constitutional right of individual employees to combine is to enhance their strength as a collective and to prevent them from being overwhelmed by more powerful employers. Employee choice, along with the ability to associate together to determine a collective interest, is the very essence of meaningful collective bargaining:
…s. 2(d) functions to prevent individuals, who alone may be powerless, from being overwhelmed by more powerful entities, while also enhancing their strength through the exercise of collective power. Nowhere are these dual functions of s. 2(d) more pertinent than in labour relations. Individual employees typically lack the power to bargain and pursue workplace goals with their more powerful employers. Only by banding together in collective bargaining associations, thus strengthening their bargaining power with their employer, can they meaningfully pursue their workplace goals…
Put simply, its purpose is to preserve collective employee autonomy against the superior power of management and to maintain equilibrium between the parties…
…a meaningful process of collective bargaining is a process that provides employees with a degree of choice and independence sufficient to enable them to determine their collective interests and meaningfully pursue them. [emphasis added]
footnote 451
Freedom of choice by employees should be protected by a secret ballot vote process that protects both choice and secrecy, provided that the law also protects their independence to select (or reject) a bargaining agent. Employer (or union) misconduct that undermines employee independence destroys the reliability of the secret ballot process. The Supreme Court has acknowledged the power imbalance between employees and employers and that a meaningful process of collective bargaining includes protecting employees’ rights to join associations or unions that are free of the influence of, or domination by, the employer:
[there is] a presumptive imbalance between the employer’s economic power and the relative vulnerability of the individual worker.
The function of collective bargaining is not served by a process which is dominated by or under the influence of management. This is why a meaningful process of collective bargaining protects the right of employees to form and join associations that are independent of management (Delisle, at paras. 32 and 37).
footnote 452
The significant power imbalance in the workplace and the ability of the employer to influence employees has long been recognized in the LRA.
The right of an employee to choose freely whether to be represented by a trade union is protected under the LRA. It is specifically protected from interference by the employer, whether by coercion or bribery. The LRA makes it an unfair labour practice for an employer to “seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act”.
The OLRB, like courts and other labour tribunals, has recognized the importance of independent choice free from employer interference. The OLRB has stated that employers cannot align themselves with those who favour or oppose a union and has cautioned employers in expressing their views that they should not interfere. In Emco-Fab Ltd., Vice-Chair Picher stated:
An employer can align himself neither with the employees who favour a union nor with those who are opposed. Doing so distorts the balance of choice and frustrates the free exercise of employees' rights under the Act. Support to either camp, whether open or covert, amounts to interference contrary to the Act. While it may be impossible in the real world to expect employees to make their choice for or against a union in "laboratory conditions" unaffected by any outside influences, the Act strives insofar as possible to insulate the process by which employees select or reject union representation. Apart from the right to express his views, a right whose exercise requires some care, the Act imposes a simple rule for the employer: “Do not interfere.”
footnote 455
The current provisions of the LRA are not sufficiently responsive to the adverse impact that employer misconduct has on the rights of employees to free and independent choice.
Under the current law, second votes are possible in every case of remedial certification, and the OLRB can certify the union only “if no other remedy would be sufficient to counter the effects of the contravention.”
The premise that steps can be taken to ensure a second vote is sufficient to counter the effects of employer misconduct is flawed. While there may be rare cases where a union could win a second vote following employer misconduct, in our collective experience over a lifetime of practice, like scrambled eggs, the status quo ante cannot be restored and the second vote will generally be tainted by the misconduct. Employer conduct that is designed to raise or results in employee concern about the future stability or security of their employment leaves an indelible mark. Fear of supporting the union, or the hope of reward for voting against the union, which results from illegal threats or promises, is not likely rectified by a decision of a labour board finding unlawful conduct, even if coupled with a “mea culpa” statement made by the employer to employees as a result of a board order.
The power of the employer to influence the livelihood of employees is real. Everyone who has been employed, in positions high or low, understands the power of those in authority to control employment, including allocation of duties and responsibilities, career advancement and promotion, demotion, compensation and continued employment. Employees understand the power of the employer to make decisions affecting the future of the entire enterprise such as layoffs, or moving, or closing all or part of its operations. Once employer misconduct undermines the true wishes of employees, the results of a vote are, more likely than not, unreliable.
11.2 A recommended package
We do not believe that there is a single “correct” certification procedure. Our recommendations are designed to protect employee choice and employee independence to decide whether to engage in collective bargaining free of undue influence or threats. This is the employee’s fundamental constitutional right.
Moreover, while we have concluded that a secret ballot vote is preferable to membership evidence alone as a reliable indicator of employee views, we do not share the broad employer community’s opposition to card-based certification. For many years in Ontario, card-based certification was accepted as a reliable indicator of employee preference and less susceptible to the adverse impact of opposition to certification by employers than a secret ballot process. The irony is that secret ballot votes, which are said by the employer community to be necessary to safeguard against the unreliability of the card-based process, are unreliable if there is employer misconduct.
When, in 1992, the Special Advisors to the British Columbia Government on labour law reform recommended a return to card-based certification – a unanimous recommendation of a respected tripartite group
The surface attraction of a secret ballot vote does not hold up to examination. Since the introduction of secret ballot votes in 1984, the rate of employer unfair labour practices has increased by more than 100%. When certifcation hinges on a campaign in which the employer participates, the lesson of experience is that unfair labour practices designed to thwart the organizing drive, will inevitably follow….Unions would sign up a clear majority of employees as members and a vote would be ordered.Then key union organizers would be fired or laid off while threats of closure dominated the campaign and the vote itself was viewed as a vote on whether to continue with employment rather than as a vote on redefining the employment relationship. It is not acceptable that an employee’s basic right to join a trade union be visited with such consequences and illegal interference. Nor is there any reasonable likelihood of introducing effective deterrents to illegal employer conduct during a representational campaign.”
footnote 459
For reasons outlined below, we recommend preservation of the secret ballot vote process for certification with appropriate remedies for employer misconduct. Without effective remediation for unlawful employer conduct, there are compelling reasons for a return to card-based certification.
There were other considerations in making our recommendation. First, the secret ballot vote is the norm for the expression of democratic outcomes, at least in elections, and should not be discarded without greater proof that it cannot be made to work effectively.
Second, the secret ballot vote has been the norm in labour relations in Ontario for over 21 years now, and the clock is not easily set back. In that regard, Ontario’s situation is different from the federal system, where compulsory votes were in place for an extremely short period of time before the card-based system was restored. Large unionized employers are much more prominent in the federal private sector, whereas Ontario’s private sector is far more diverse. Smaller private sector employers are fearful of unionization and if card-based certification were reintroduced in Ontario, there is a high probability that the business community would look to a subsequent government to restore secret ballot votes. The basic system and rules for the acquisition of bargaining rights should not be subject to change every time the government changes.
Third, the results of a secret ballot vote have greater credibility with everyone, including employees, employers and the public. Legitimacy and credibility are important and are undermined by not having secret ballot votes as the norm.
Fourth, and, perhaps most importantly, we have not had a secret ballot process where illegal employer conduct in the certification process, which makes the true wishes of employees unlikely to be known, would lead to certification without a vote and to first contract arbitration, if necessary.
The current compulsory secret ballot vote process, with the existing remedial certification and first contract arbitration provisions, is insufficient to protect the freedom of association of employees. If employer misconduct has a profound impact on the employees and undermines free choice, then the existing system, which prefers second votes and adequate support for bargaining in circumstances where that support has been undermined by the employer’s conduct, is skewed. There is no level playing field for the determination of the true and independent wishes of the employees.
In policy terms this choice is clear. If a secret ballot vote is to be maintained as the norm in our labour relations system, then it is proper and correct policy to insist on the integrity of that process by not permitting employer misconduct and interference to undermine it. It is unreasonable to insist on the most democratic and preferred means of determining employee choice, namely the secret ballot vote, while at the same time effectively sanctioning and countenancing employer misconduct, which undermines the integrity of the voting process. A second vote, following employer misconduct, cannot rectify or eliminate the impact of employer misconduct and is an unreliable measure of free and voluntary support of the union. Once everyone knows the well is poisoned, no one will drink the water. Accordingly, if an employer unlawfully interferes with the employees’ rights to freedom of association and honest independent choice, that conduct must trigger a meaningful remedy, namely certification without a vote and access to first contract arbitration.
Therefore, our recommendation is that the secret ballot for certification be maintained, but government should assess whether remedial certification and easier access to first contract arbitration in response to employer misconduct will effectively deter such conduct. If true employee choice and independence ultimately prove to be incompatible with a secret ballot system, then resort may need to be had to the Ontario construction certification model or the federal system of certification in which the certification procedure is just seen as, in effect, an efficient licensing system, which authorizes a union to act on behalf of a group of employees.
In the current circumstances, the policy we favour is a secret ballot voting system that includes effective remedies of certification and access to first collective agreement arbitration where there is employer misconduct undermining the integrity of the vote.
We submit that the package of recommendations will result in a principled and workable system, which both unions and employers should be able to support. Unions should favour a system where employee free choice is maximised and unlawful employer interference is effectively remedied. Employers should support the preservation of the secret ballot, legitimate employer free speech and open discussion of the issues by unions and employees. Most employers understand that unlawful conduct, which negates or impairs the constitutional rights of employees to freedom of association, requires effective remediation. Most employers understand that employers who engage in unlawful conduct should not be rewarded with the defeat of a union. In our estimation, the employer community, which is overwhelmingly law-abiding and respectful of the rights of its employees under labour law and the constitution, will have no interest in protecting those employers who violate the law and who undermine the integrity of the secret ballot process.
Recommendation
- The secret ballot process for certification should be preserved, provided that recommendations 145 – 149, below, are also accepted.
11.2.1 Remedial certification (certification without a vote)
For reasons outlined above, our view is that a second vote is an inappropriate response to employer misconduct that undermines employee choice and independence and the integrity of a first vote. We also consider that the criterion of adequate support for bargaining is inappropriate as a threshold test for remedial certification where there has been employer misconduct. This criterion is incongruous with a fair outcome because it rewards employers who violate the LRA early to prevent the union organizing campaign from getting off the ground, or who engage in illegal activity later in the campaign, which demoralizes and frightens employees, thereby destroying support for the union. Employer misconduct that warrants a conclusion by the OLRB that that the true wishes of the employees of the employer are not likely to be ascertained in a secret ballot vote should result in certification.
Recommendation
- We recommend that section 11 of the Labour Relations Act, 1995 be revised to provide as follows:
Where an employer, an employers’ organization, or a person acting on behalf of an employer or employer’s organization contravenes this Act so that the true wishes of the employees of the employer or of a member of the employers’ organization are not likely to be ascertained, the Board, shall on the application of the trade union, certify the trade union as the bargaining agent of the employees in the bargaining unit.
11.2.2 First contract arbitration
Unions have argued that following certification, access to first contract arbitration should be automatic once the parties are in a position to strike and lock-out. Employers have generally opposed first contract arbitration, and third-party intervention, as an interference with free collective bargaining.
We are opposed to a right to interest arbitration whenever a union is certified. Imposing mandatory interest arbitration for first contracts in every case would mean a blanket denial of the right to strike, a right which the Supreme Court of Canada has found is an “indispensable component” of the constitutional right to collective bargaining.
First contract arbitration is justified as a remedial response to employer misconduct for at least two reasons. First, employer misconduct makes access to first contract arbitration a necessity. If employer misconduct has eroded support for the union and the employer has made its anti-union animus known to employees, then employee support for collective bargaining will also have been eroded. Access to first contract arbitration is the only practical way to ensure that employees have meaningful access to collective bargaining where there has been misconduct resulting in remedial certification.
Second, the availability of first contract arbitration as a response to employer misconduct in the certification process will function as a deterrent to employer misconduct. Employers will know that unlawful conduct may result in certification and access by the union to first contract arbitration.
However, the right to first contract arbitration should not be absolute. Unions and employers must be given an opportunity to bargain in a first agreement, following remedial certification. Remedial certification should not be an opportunity for a union to take unreasonable positions in collective bargaining for a first contract. Accordingly, we are proposing an intensive mediation model, below, for first contract negotiations. In the model proposed, access to arbitration may be denied following remedial certification if the union bargains in bad faith or is uncompromising without reasonable justification.
Recommendation
- Where remedial certification under section 11 is ordered, first contract arbitration under section 43 of the Labour Relations Act, 1995 should be available, unless the union has bargained in bad faith or is uncompromising without reasonable justification. Where collective bargaining between the parties has not resulted in a collective agreement, the matter should be referred to an expedited and intense mediation/arbitration process and mediated either by a person selected by the parties or by the Labour Relations Act, 1995 in the event the parties are unable to agree.
11.2.3 An intensive mediation process for first contracts
Under the existing law, a direction of first contract arbitration by the OLRB can be made in the following circumstances: the employer refuses to recognize the union; an uncompromising bargaining position is adopted by the union or the employer without reasonable justification; either party fails to make reasonable or expeditious efforts to conclude a collective agreement; or for any other reason the OLRB considers relevant. We agree that first contract arbitration is justified in these circumstances and following remedial certification as well.
We also recommend additional changes to the current system under the first contract provisions in section 43 of the LRA.
First contracts are typically more difficult to bargain than subsequent renewal agreements. There are many reasons for this, including circumstances set out in the previous paragraph. The parties may be inexperienced, or there may have been conflict in the certification process damaging the formation of a relationship.
All first collective bargaining negotiations that do not reach settlement on a voluntary basis will benefit from an intensive mediation process where the mediator, working actively with the parties, has the authority to recommend substantive terms of an agreement and/or further mediation, mediation/arbitration, or ordinary arbitration, or that the parties be able to strike or lock-out.
The “mediation-intensive” model introduced in British Columbia in 1993, offers a reasonable model for Ontario that could significantly improve labour relations success in first contract negotiations, including after remedial certification. Certainly, following remedial certification, a different approach to collective bargaining is warranted, but facilitating first contract arbitration in all cases where there is a strike vote (unless the union can show that employer misconduct made a strike vote untenable) is desirable for labour relations in Ontario. According to Professor Slinn, studies have shown that the intensive mediation approach in British Columbia is likely to produce more enduring relationships.
Pursuant to our recommendations, a mediator would be appointed early in the process to provide assistance to the parties by facilitating and encouraging collective bargaining and by educating the parties on practices and procedures, all of which should help avoid an irreparable breakdown in their collective bargaining relationship. Most cases will, with the help of a mediator, result in a first collective agreement but, if not, there is a process for settling the agreement, including one or more of: mediation, mediation/arbitration, arbitration by an independent arbitrator or by the OLRB, or permitting the parties to engage in strike/lock-out. The OLRB will make the final decision as to which process should be used.
The following is a non-exhaustive list of factors that the British Columbia Labour Relations Board has indicated it will consider when deciding whether first contract negotiations should be referred to arbitration:
- evidence of bad faith bargaining or surface bargaining;
- employer conduct demonstrates refusal to recognize the union;
- a party adopts an uncompromising bargaining position without reasonable justification;
- a party fails to make reasonable or expeditious efforts to conclude a collective agreement;`
- unrealistic demands or expectations arising from either the intentional conduct of a party or from their inexperience with bargaining; and
- evidence of a bitter and protracted dispute in which it is unlikely that the parties will be able to reach an agreement by themselves.
Based on the case law as it has developed in British Columbia,
We are in agreement with the general philosophy and approach in British Columbia and believe it would be an improvement for Ontario to adopt a similar, although not identical, approach. Our new system envisages that the OLRB would apply these or similar criteria and these would replace the express criteria in the current section. Based on our experience, we have considerable confidence in mediation and mediation/arbitration processes. If these processes were to be made available in first contract negotiations with experienced mediators, not only would more first collective agreements be resolved without strike or lock-out but, also, better and more successful collective bargaining relationships would result.
Recommendation
- The Labour Relations Act, 1995 should be amended to enable an “intensive mediation” approach similar to the approach currently in use in British Columbia. It should generally follow the statutory scheme in British Columbia with some different or additional elements:
- Either the employer or the union may apply to the Chair of the Ontario Labour Relations Board to appoint a mediator to help the parties reach a first collective agreement once the following thresholds have been met: (1) the parties have bargained collectively but failed to conclude an agreement; and (2) the union has obtained a strike mandate.
- The second requirement in (a), above, does not apply where the union has obtained remedial certification, or where the union can demonstrate that employer misconduct following certification has resulted in the union becoming unable to obtain a successful strike vote.
- Once an application is filed, the parties cannot engage in a strike or lock-out unless subsequently so permitted by the Ontario Labour Relations Board.
- An application must include a list of the disputed issues and the position of the party making the application on those issues. Within 5 days the other party must give a list of disputed issues and their position on those issues to the other party and to the Ontario Labour Relations Board.
- The Chair will appoint a mediator within 7 days of receiving the application.
- If within 20 days the mediation is unsuccessful and a first collective agreement is not reached, the mediator must report back to the Chair and recommend the following steps:
- the terms of the first collective agreement for the parties to consider; and/or,
- a process for concluding the first collective agreement, including one or more of the following:
- further mediation;
- mediation/arbitration or arbitration alone, by a single arbitrator or by the Ontario Labour Relations Board; or,
- strike or lock-out.
- If the parties do not accept the mediator’s recommended terms for the first collective agreement or if an agreement is not reached within 20 days of the mediator’s report, the Chair must direct a method for resolving the dispute from the above list.
- A union that has obtained remedial certification is prima facie entitled to have the dispute subject to mediation/arbitration or arbitration, unless its conduct in bargaining is found to disentitle it to such a remedy.
- If the Chair orders further mediation or arbitration, the parties cannot engage in a strike or lock-out until subsequently permitted to do so.
- Any agreement imposed upon the parties is for a term of two years and is binding.
11.2.4 Timeliness of displacement and decertification applications
One issue that needs to be addressed is the timeliness of displacement applications (“raids”) or decertification applications when a first contract application is pending, or in the circumstances discussed, above, in Recommendation 4. The wrong approach could easily undermine the other recommendations. Allowing decertification or displacement applications before remedial certification or first contract arbitration has had a chance to work would undermine or nullify the impact of granting either of those remedies.
Where remedial certification or first contract arbitration is ordered as a result of employer misconduct, decertification and displacement applications should not be allowed. Decertification applications and displacement applications should be prohibited from the time certification without a vote is ordered until the open period after the expiry of the first contract, unless the union is found to be disentitled to first contract arbitration, in which case a raid or displacement application would be timely according to the ordinary rules. A decertification or displacement application should also not be heard when an application for intensive mediation
Recommendation
- Where a union is certified under section 11 of the Labour Relations Act, 1995, applications for decertification or certification should be untimely until the open period of the collective agreement subsequently entered into, unless first contract arbitration is denied, in which case, the current timeliness rules should apply. Where a union or employer apply for intensive mediation under the new proposed rules or for first contract arbitration under section 43 of the Act, no application for decertification or certification should be allowed until that process is completed.
11.2.5 Access to employee lists and contact information
The constitutional right of employees to effective and meaningful collective bargaining, and to enhance their bargaining strength, is founded on the freedom of employees to associate.
This has important implications for the certification process because employees cannot practically band together to pursue their workplace goals if they don’t know who the other employees are, where they work, how to contact them, or how many of them there are. Canadians in a workplace cannot exercise their constitutional right to associate for purposes of collective bargaining if they are unable to communicate with their fellow employees in the same workplace. Absent the ability to know who the other employees are and how they can be contacted, the constitutional freedom of association is potentially sterile and ineffective.
The secret ballot voting process protects free employee choice, provided it is free of improper employer influence and, as in any election, it makes “democratic sense” to enable contending viewpoints to be communicated to the voting constituency.
The process of acquisition of membership evidence is an integral part of the secret ballot process. The accumulation of 40% support is a precondition for a vote. Prior to the ordering of a vote, there is as much need for the employees and the union to know who the members of the voting constituency are and to be able to communicate effectively with them as there is for competing candidates for public office to know the names on the voters list. Both are vital to the exercise of the democratic process and the exercise of constitutional rights. In other democratic arenas, such as governmental elections, there are publicly available lists of constituent voters containing information on where the voters reside so that political parties can communicate with them in person or by mail.
There are other reasons why employee information is practically necessary for freedom of association to be meaningful for employees. Workplaces can be large and geographically spread out and it can be very difficult and onerous, if not impossible in some circumstances, to know the number of employees and where they work. Moreover, in the changing workplaces of today, employees can be employed on numerous shifts, or on a part-time or temporary basis or away from the workplace altogether, and it can be difficult for other employees to know how and where to reach them. These many practical obstacles should not be placed in the way of the exercise of the constitutional right to freedom of association, especially when the employee information exists and can be easily provided. Where freedom of association, and the exercise of the right to meaningful collective bargaining, is a constitutional right, organizing should not be a game of pin the tail on the donkey.
We have examined and assessed this issue in the context of the decisions of the Supreme Court of Canada, which set out the role of collective bargaining in constitutional terms.
In a secret ballot system predicated upon a threshold of support to trigger a vote and where majority support is required in order to be successful, the identification of the voting constituency and the ability to communicate is essential. Otherwise, the result is a flawed democratic process. Those who champion the secret ballot process as the best mechanism for the expression of employee choice should be supportive of an informed electorate.
A further reason for promoting a system where there is an ability to have an open expression of views on unionization is that it will help to achieve a culture of compliance and a broader knowledge of the rights of employees. At the moment, there is a stark contrast between the rights of employees and the reality of the fear that accompanies the entire issue of unionization. On the one hand, there is a statutory scheme that grants everyone the right to belong to a trade union and participate in its lawful activities and a constitutional right to associate, organize, bargain collectively and strike. On the other hand, in many workplaces, the very idea of a union is considered to be a betrayal of the employer, a disloyalty, and something that cannot be openly discussed for fear of the repercussions. Open discussion and debate, untainted by employer misconduct, will help to alleviate fear and concern and help to establish an environment in which employees are free to make an independent choice on whether they want to engage in collective bargaining and, if so, who they wish to represent them.
Many employers have objected to providing access to employee lists and contact information. In submissions made to the Changing Workplaces Review, employers have asserted that there is no precedent and no demonstrated need for such a change and that it would interfere with employee rights to privacy.
In terms of a lack of precedent, it is true that no jurisdiction requires the provision of employee information before an application is filed. Quebec requires the provision of names and addresses before a vote
Of course, where a policy initiative is unprecedented, it is important to examine it carefully. In the academic literature, there is strong support for the provision of names and contact information during the organizing process.
We have set out the reasons why we recommend this change and why we conclude that there is a demonstrated need for it, both on the application of constitutional and democratic principles.
Although privacy interests are important, there are also other public policy interests, and these interests must be balanced. For example, voters in a public election have no privacy interest not to be contacted or identified and there is a public list of voters and where they live. During an organizing campaign, employees are entitled to participate fully in discussions about the desirability or utility of collective bargaining. An employer maintains the right and the means to communicate to its own employees, and it often does communicate as soon as it finds out an organizing campaign is occurring. To level the playing field, unions should have the information necessary to communicate effectively with the employees. In addition, in the current certification process, some of this information is already produced, e.g., employee lists are already made and filed with the OLRB in response to certification applications and employees are named on the voters list for representation votes.
When should a union be given access to employee lists and contact information?
There must be some limits on the ability of unions and employees to obtain information on the number, location, and contact information of employees. There must also be prohibitions on the use of the information for purposes unrelated to organizing. A union must show a core level of support among the employees in a proposed bargaining unit to justify acquiring the information.
A union currently requires the support of 40% of an appropriate bargaining unit to trigger a vote. In our view, an applicant union should be required to demonstrate that 20% of the potential bargaining unit supports collective bargaining through joining the union in order to acquire the right to be provided with the names, addresses, work locations and contact information, including emails and phone numbers, of the employees. A threshold of 20% membership is sufficient to demonstrate that it has a reasonable chance of obtaining the 40% necessary to trigger a secret ballot vote, A similar standard could be applied to employees seeking to de-certify a union.
To the extent that it is necessary for this requirement to take precedence over any statutory or common law privacy concerns, it should be clear in the statute that these rights supersede any statutory or common law privacy rights and the OLRB should be entitled to decide the matter quickly based on written submissions, without a hearing and/or consultation.
Employers have expressed a legitimate concern that this provision could lead to further extensive litigation. For that reason, we do not envisage that 20% should be a fixed and absolute threshold for the union to meet in order to obtain the list. To do so would simply invite prolonged litigation with status tests and other similar issues being litigated to determine if the union had reached the threshold entitling it to the information. This would be both a waste of resources and destructive. Rather, the test for entitling the union to the list and the contact information should be that the union demonstrate that it has signed approximately 20% of the unit it considers appropriate for collective bargaining. The process we envisage is simple: the union will submit membership evidence as it does in the ordinary course of an application for certification and the employer will submit its list of employees who are in the bargaining unit that the union claims to be appropriate for collective bargaining. If it appears to the OLRB that the union has membership support of approximately 20% of the unit, then the employer would be ordered to disclose the complete list and contact information to the union.
To protect the integrity of the process and to assure the employer community that an application for access to employee lists is not made for an improper purpose (i.e., to prevent the union from just applying to obtain the list when it has no entitlement to it), the union would not be permitted to see the employer list or to challenge it the way it would in a certification application. Rather, the OLRB would simply examine the membership evidence supplied by the union and the lists supplied by the employer and decide the matter based on the material submitted.
Such a safeguard will place the OLRB itself in a more active role in ensuring that the list submitted by the employer is an accurate response to the application and not an effort to mislead or gerrymander. The OLRB can do this by asking questions of the employer through its labour relations officers, as necessary, and checking the responses, without revealing confidential information to the union. If the OLRB decides it is necessary to disclose some or all of the information to the union in order to ensure a fair determination of whether the union meets the threshold test, then it could do so to the extent necessary for a fair disposition of the matter by redacting certain information if necessary and/or imposing such terms as may be required, and prohibiting the union from keeping or copying the list or any portion of it.
In most cases, the OLRB will be able to make an informed assessment of whether the union meets the test of approximately 20% support, without disclosing the list to the union. In the same vein, the OLRB should not be required to reveal to the employer, as it would on a certification application, the actual number of cards that the union has submitted.
If the employer is ordered to produce the list and the contact information, it must also make the list available, if requested, to employees in the bargaining unit. Employees asking questions of the union or opposing the union should also be able to communicate with their fellow employees. If 20% of employees wish to have access to the information for purposes of a decertification application, the same provisions should apply.
Recommendation
- We make the following Recommendations
- Upon application by a union, if it appears to the Ontario Labour Relations Board that a union has the support of approximately 20% of the employees in a bargaining unit, the Board shall require the employer to disclose to the union the list of employees in the bargaining unit, together with the work location, address, phone number and personal email address of each employee. The same requirement shall apply if, upon application, it appears to the Board that approximately 20% of the employees in an existing bargaining unit have demonstrated that they no longer wish to be represented by a union; the same list shall be provided to the employee representative.
- The Board may meet with the parties but is not required to hold a hearing or engage in a formal consultation process.
- The Board shall not disclose the employer list to the union unless it considers it necessary to disclose some or all of the list in order to fairly determine the matter, in which case it shall disclose only as much information as may be necessary for the union to respond, and it may impose such terms as it considers necessary to preserve the confidentiality of the list so that the union does not obtain it on a permanent basis. The Board shall also not disclose to the employer the number of employees the union has demonstrated as being members of the union.
- It shall not be a breach of the common law or of any statute for the employer to provide the list of employees in the proposed bargaining unit to the union upon a direction from the Board.
- The union shall not use the list or any information taken from it at any time for any purpose other than to seek the support of members of the bargaining unit.
- If the union is provided with a copy of the list pursuant to an order of the Board, employees in the bargaining unit may ask the employer for the same list and the employer shall provide it. The employees to whom the list is provided shall not use the information for any purpose unrelated to the organizing campaign.
- The same procedure shall apply if approximately 20% of employees in an existing bargaining unit wish to decertify the union.
11.2.6 The recommendation package: recap and rationale
As indicated above, we are recommending that Recommendations 145-149, above, be accepted in their entirety. The “package” is based on the rationale summarized below.
- Our core recommendation is that secret ballot votes be continued. However, the recommendation is conditional upon the secret ballot vote process being free, independent and a true reflection of the desires of the employees. If, because of employer misconduct, the true wishes of the employees are not likely to be reflected in a representation vote, there must be effective remediation in the form of certification without a vote (remedial certification) and access to first contract arbitration. Those are Recommendations 145 and 146.
- An intensive mediation process should be integrated into the first contract arbitration process. The parties to first contract negotiations will receive intensive mediation assistance to help them reach a first collective agreement. A union certified by remedial certification will be entitled to first contract arbitration but only after undergoing the intensive mediation process. Other cases that currently meet the test for first contract arbitration will also have access to interest arbitration if an agreement is not reached through intensive mediation. Other first contract negotiations will be permitted to move to strike and lock-out, if necessary, if agreement is not reached in the intensive mediation process. This recommendation is designed to improve labour relations by increasing the likelihood of the successful conclusion of first contract negotiations and by reducing the number of cases where first contract arbitration is utilised. The use of intensive mediation will help parties in first contract negotiations succeed in resolving their disputes without third party dispute resolution and make arbitration more responsive to the needs of the parties where it is necessary. Overall, this should lead to more successful and long-lasting relationships. This is Recommendation 147.
- Recommendation 148 is that decertification applications and displacement applications by other unions are prohibited while the intensive mediation and first contract arbitration process is ongoing. There is no point in setting up a new remedial system and intensive mediation process only to have it undermined by decertification applications or raids that occur before the remediation and intensive mediation process have had an opportunity to work.
- Recommendation 149 is part of the package of recommendations because the secret ballot vote system, with membership evidence at 40% as its trigger, requires that all interested parties have the ability to communicate effectively with the voting constituency. A fair and democratic voting process requires a list of eligible voters and contact information to be made available so that employees can be informed participants in the election process.
11.3 Electronic membership evidence
The background to the issue of electronic membership evidence is set out in the Interim Report. In our digitalized world, limiting membership evidence to hard-paper copies is an anachronism. Unions should be able to campaign on the internet and through emails, texting, and social media, and employees should be able to respond affirmatively, if they wish, from the comfort of their homes or on their portable devices without having to arrange a physical meeting with someone or being required to sign a piece of paper. In a world where people work in different locations, on different shifts, part-time, temporarily and erratically, it impedes organizing to insist that membership cards be signed in 2017 in the same way that they were in the 1940s.
The failure to provide for electronic membership is a barrier, since it impedes new and more modern approaches to organizing. In addition, to many employees, especially millennials, the lack of an electronic means to join the union is likely to make the union appear anachronistic and antiquated. The rule compelling hard copies of membership evidence should be changed promptly. A potential concern about electronic membership evidence is its reliability; however, in an age where it is commonplace for people to provide identification electronically and agree to terms and conditions of contracts online, a system that permits both electronic membership evidence and verification should be easily achieved and the OLRB is able to determine whether the membership evidence is bona fide. In a recent decision, the British Columbia Labour Relations Board
The OLRB should modernize its rules concerning electronic membership evidence as soon as possible, using either the same tools as British Columbia or such other ones as it devises to ensure the authenticity and reliability of electronic membership evidence. The government should provide the funds necessary to modernize the electronic submission of information to the OLRB.
Recommendations
- The government and the Ontario Labour Relations Board should prioritize the provision of funds to modernize the electronic submission of information to the Board.
- The Ontario Labour Relations Board should modernize its rules permitting electronic membership evidence as soon as possible, using either the same tools as British Columbia or such other ones as it devises to ensure the authenticity of electronic membership evidence.
11.4 Voting
We have been invited to consider recommendations for alternative voting procedures outside the workplace and/or off-site, telephone and internet voting. The current section 111(2) (h) of the LRA appears to give power to the OLRB to control the voting process on the employer’s premises, although the section can be read more broadly. The OLRB does now occasionally hold votes outside the employer’s premises.
The powers of the OLRB should be broadened to give it clear discretion to hold electronic votes or to conduct votes outside the workplace. The Board should have the power to order these when it believes it appropriate to do so in circumstances where the integrity and secrecy of the voting process can be secured.
The argument has been made to us that the fact that votes are held at the workplace creates an intimidating atmosphere for employees in the exercise of their right to vote, either by the employer or the union. There is not a lot of evidence to support this assertion but it has been taken seriously in the academic literature and much consideration has been given to mail, off-site and/or electronic, telephone and internet elections (IETV).
It should be clear that holding votes in intimidating circumstances, or where the employer or union would have unique access to observe who was voting and speak to voters before they voted, is improper. Conduct by either the union or the employer around the holding of the vote undermining employee choice and independence, should not be permitted. Labour Relations Officers who conduct the votes should have the clear authority and duty to make arrangements and to give binding directions on the employer’s premises that assure a neutral environment for the conduct of the vote.
Holding votes quickly is generally recognized as being very important. The OLRB is viewed by the community as having done an excellent job in holding votes expeditiously and anything that the process gains in terms of a greater perception of neutrality through electronic or off-site voting could be lost if it takes a longer period of time to arrange and conduct the vote. One important reason for holding votes in employer premises is that it likely provides the best assurance of high participation by employees as the workplace is likely the most accessible location for voting. Holding a vote in a location outside the workplace will likely make access to the voting station more difficult for employees. Also, voting in a location outside the workplace would require finding a suitable and available location, renting premises or making other arrangements for employee access and providing notice to employees, all of which is likely to mean cost and delay. Having the vote at another location, away from the workplace, may also discourage certain voters and this may affect the outcome.
Electronic voting requires that employees be provided with passwords or code access for voting, which preserves the secrecy of the vote, as well as instructions on how to vote and time to provide the information. While electronic voting may facilitate voter participation, free of any perception of improper influence, there is a concern that it may delay voting because of the added time that it might take to organize and communicate that information. Aside from that consideration, IETV voting offers freedom from any interference with the voter as well as secrecy and privacy. If, in the future, all the information on how to vote can be standardized and transmitted quickly to all voters by email or other electronic means, electronic voting may be more common and replace workplace balloting altogether.
In short, as experience with electronic voting increases and as technology progresses, it may be possible to have electronic voting systems that are quick, efficient, affordable and that assure the secrecy of the process.
Recommendations
- The Ontario Labour Relations Board should be given the explicit power to conduct voting procedures outside the workplace, including telephone and internet voting.
- The Ontario Labour Relations Board should prioritize the investigation and development of electronic voting systems that are quick, efficient and preserve the secrecy of the ballot such that this becomes the standard form of voting.
- Labour Relations Officers should have the explicit authority and duty to give binding directions and to make arrangements in the workplace that assure the neutrality of the voting process.
11.5 Consolidation and amendment of bargaining units
The issue is whether the OLRB ought to be given explicit power to revise, vary, amend and consolidate bargaining units. Ontario is one of the few Canadian jurisdictions not to have given this general authority to its labour board. The lack of such a jurisdiction has important negative effects.
First, the absence of the general power to amend a bargaining unit means that the OLRB could be powerless to respond if there is a need for the rationalization or modernization of bargaining unit structures in circumstances where the original bargaining structure is no longer appropriate in the circumstances, for example, where bargaining units are overly fragmented or for other sound labour relations reasons. Second, the OLRB currently has no general power to consolidate bargaining units where there are multiple small units in multiple locations of a single employer or at a single location. This impedes effective organizing in those sectors where unionization has not taken hold and where there are many vulnerable employees in precarious work.
We deal with each of these issues, below.
Modernizing labour relations structures
One of the OLRB’s most important functions, especially in the formative years of collective bargaining, is to determine whether a proposed bargaining unit is appropriate, based on sound industrial relations considerations and on the community of interest of employees. Over time, the OLRB has developed a number of policies to determine the appropriateness of a bargaining unit. For example, the OLRB certified units of part-time employees separately from full-time employees and plant employees separately from office and clerical employees. There have also been distinct policies for different industries and sectors such as hospitals, municipalities, universities, newspapers, etc. In the last 25 years, the OLRB stopped relying heavily on the criterion of community of interest in favour of examining whether the bargaining unit proposed by the union had a “sufficiently coherent community of interest” so that the employees could bargain together on a viable basis without, at the same time, “causing serious industrial relations problems for the employer”.
Units have generally, but not always, been determined by single location in a municipality. Alternatively, there could be a single bargaining unit across several locations in a municipality if certain criteria were met. However, if a second location or a third location was certified after the first certificate was issued, there is no power in the OLRB to consolidate the bargaining units in the second location with the first, even if it makes good labour relations sense to do so. Of course, the parties could always do this voluntarily and often did.
The result is that a single employer could wind up with many different bargaining units and many collective bargaining agreements with the same or different unions. If this fragmented bargaining landscape gave rise to labour relations problems, the OLRB has continuously said that it does not have the authority to revise or rationalize the various bargaining units. This results in a labour relations system that could grow more ossified over time.
With some minor exceptions, the only way in which to change the configuration of bargaining units now is for parties to agree voluntarily to changes. While the parties are free to expand or to reduce the scope of bargaining units, it is an unfair labour practice to take such issues to impasse (i.e., to make such a dispute the subject of a strike or lock-out). This is an effective bar to changing the bargaining unit structure where one party resists it.
Concerns have been expressed that creating this power could lead to instability if the appropriateness of long-standing bargaining relationships is put into question, but, in our view, not granting the OLRB the authority to revise existing bargaining structures creates a greater risk that there will be inefficiencies and a more significant risk of instability resulting from fragmentation. The concern over instability can be addressed by putting the onus on the party seeking change to demonstrate that the existing bargaining unit structure is no longer appropriate in the circumstances. We have used the words “in the circumstances” to indicate that the test for appropriateness should not be based on the set of facts and concerns that existed at the time the bargaining unit was first certified. Rather, the test for appropriateness relates to the current conditions that exist.
We have been urged to recommend that the power to consolidate should be restricted to situations where there is one union representing the different bargaining units involved. This was a condition of the statutory consolidation provision that was in force from 1993-95 (under Bill 40). By restricting the variance and consolidation power to cases where there is a single union, existing representation rights are preserved and unions are not exposed to the risk of losing bargaining units. The trade union movement favours this approach, arguing that it preserves employee choice of bargaining agent and also discourages a form of “raiding”.
While we are sympathetic to the desire of employees to be able to select and maintain their existing bargaining agent, if an ineffective bargaining structure leads to a labour relations problem, such as fragmentation or inefficiencies that have evolved over time, the system must be able to respond appropriately. Placing unnecessary and unjustifiable restrictions on the power to amend a bargaining unit does not accord with common sense. Labour relations problems arising from fragmentation will often arise in situations where there is more than one union. The OLRB must have a power to rationalize and modernize labour relations structures while giving due deference to employee wishes and existing structures that work. Limiting the power to rationalize only where the same union is involved unreasonably puts the narrow interests of unions above the interests of the community. Accordingly, we recommend that, in the case of a single employer, the OLRB be given the explicit power to revise, vary, consolidate and restructure bargaining units in a collective agreement or in a certificate if it is satisfied that the existing bargaining unit or units are no longer appropriate for collective bargaining in the circumstances.
Varying bargaining unit descriptions and consolidation of multi-location units of a single employer in sectors/industries historically underrepresented by unions
The need for intervention described above arises mostly in established relationships. However, there is also a need to expand the OLRB’s power to vary and consolidate bargaining units in new and immature bargaining relationships, especially in sectors where collective bargaining has not developed and where there are vulnerable workers in precarious work. The focus here is on organizing and bargaining in areas of the economy that have been traditionally difficult to organize and where employees are historically under-represented by unions.
This is not a new concept for Canada. In this regard, the jurisdiction of the OLRB is limited compared to other labour boards. In British Columbia, for over 40 years, the British Columbia Labour Relations Board has had the jurisdiction to modify its policy of bargaining unit determination in industries that are difficult to organize in order “to afford collective bargaining some room to put down firm roots”.
The principle of permitting a “relaxed policy of appropriateness” in an initial certification application or a subsequent variance of the unit or a consolidation of units, applies to a single employer in a single location and to single employers with multiple locations. In multi-location, single-employer situations, structural, practical and legal barriers combine to make it virtually impossible to establish meaningful collective bargaining relationships in some sectors, such as restaurants, fast food, retail stores and similar workplaces, especially when each location is small. Realistically, in the case of an employer with multiple locations, it may only be possible to organize location by location as organizing all the units in a municipality, or even multiple units at the same time, is very difficult and some would say impossible as a practical matter. However, a single small unit of a large employer with multiple locations is likely to have almost no bargaining power and the chances of failure in achieving meaningful collective bargaining outcomes are very high. It is difficult to build support for unionization among employees where there is little likelihood of meaningful bargaining.
Viable, effective and stable bargaining where some improvement in terms and conditions of employment can be achieved is likely only possible where there is a larger unit. If units can be certified on a smaller basis and then varied or consolidated afterwards, this could make collective bargaining in those industries or sectors more viable.
The probable reason why the law does not provide for the consolidation or varying of bargaining units, particularly with multiple smaller locations, is because in the 1940s, there were many single location enterprises. The traditional Wagner Act model, on which our current labour law is based, focuses on union organization at the enterprise level. The failure in Ontario to provide for consolidation of units of a single employer, or even a variance of existing units to permit growth, was not a principled omission. The current LRA was not designed for the current realities of the modern economy that has seen massive growth in the service sector, a significant increase of multiple small locations of a single, and often large, corporate employer and the development of large-scale franchising as a business model. There is no sound labour relations reason to allow for certification of bargaining units in single locations and not permit them to grow. Indeed, as the OLRB has found in many cases, larger units and the avoidance of fragmentation generally best serve the interests of the employees and the employers.
The current LRA offers no effective or meaningful access to collective bargaining for thousands of workers in multiple location enterprises or franchise operations. In many sectors, these workers are vulnerable and perform precarious work. As Professor Slinn has said, “This Wagner Model orientation to determining representation may be effectively though not explicitly, excluding more vulnerable workers, including women, racialized and new immigrant workers from statutorily protected collective bargaining.”
In making this recommendation, we are not offering a legal opinion that the failure to enact a consolidation power or a power to vary bargaining unit descriptions is a breach of the Constitution. That is not our role. However, the reasons underpinning the Supreme Court of Canada’s definition of freedom of association and protection of the constitutional right of employees to meaningful bargaining are engaged. The Court is clear that a process of collective bargaining is not meaningful if it denies employees the power to pursue their goals. In a system that is intended to “palliate the historical inequality between employers and employees”, the process is inconsistent with constitutional rights if it substantially interferes with meaningful bargaining by reducing the negotiating power of the employees.
Limiting bargaining units to a single location of the employer and/or the potential for having many small bargaining units at a single employer location, none of which have any real bargaining clout because there is no mechanism for consolidation except by consent of the parties, does reduce or limit the power of the employees and is a legislative deficiency, interfering with the objective of attaining meaningful access to collective bargaining.
On our reading of the OLRB jurisprudence, the OLRB tends to be flexible in approaching the question of which units are appropriate for bargaining and in accepting different units that the union may be able to organize. It will likely be sensitive to the difficulties of organizing multiple locations in a geographic area. It is also likely to recognize the difficult labour relations issues that would occur if it was necessary to bargain many collective agreements for multiple small locations of the same employer. Accordingly, if a hypothetical employer has multiple locations in a municipality, the OLRB would likely be receptive to an application for certification for a single location, or for any combination of locations. However, the OLRB currently does not have the power to certify a single unit and then later consolidate it with other certified units. As we have stated, above, this is a major obstacle to making organizing and collective bargaining meaningful in those parts of the economy where there are many vulnerable workers in precarious work.
There are two key elements. First, the OLRB must retain its jurisdiction to generate flexible policies concerning appropriate bargaining units for certification. Second, the OLRB should be given jurisdiction to consolidate and vary existing bargaining units, both before and after a collective agreement is in place. This requires legislative measures.
This approach has been suggested in the academic literature.
There are industries in the federal jurisdiction where large employers operate many worksites in an area. The Board’s bargaining unit policies would normally require certification to take place worksite by worksite. Were the Board to allow regional bargaining units, the union would have to obtain majority support in the whole region. This would be difficult to organize and, if successful, would include individual worksites that might not want representation. We can see distinct advantages for both labour and management in having the Code allow a single employer but multi-establishment variant to the sectoral bargaining scheme. It might work as follows. Certification (and revocation) would continue to be granted on a worksite by worksite basis (by "worksite" we mean basically whatever is the appropriate bargaining unit at present). However, once certified, the Board could be given the power to consolidate bargaining for two or more units so that they could thereafter bargain together for one collective agreement to cover all the worksites of that one employer certified within the sector with that union. As new worksites of that employer became certified, they could apply to become part of that wider consolidated bargaining process. Newly certified units could either be joined automatically to the existing collective agreement or try to negotiate their own agreement first. In the event of a failure to negotiate their own agreement, should the first contract need to go to the Board, the Board could order that the consolidated bargaining agreement apply, with any necessary modifications it deemed appropriate.
We believe this form of local unit, sectoral, single employer bargaining offers efficiencies to both sides. It meets the objections concerning competitiveness between employers, and preserves the right of employees at the bargaining unit level to opt for or against collective bargaining.
We recommend that the Board be empowered to approve a single employer sectoral bargaining scheme which would provide that, while representation questions continue to be considered locally, certified units could be consolidated, for collective bargaining with the employer, over all certified worksites within a given region.
footnote 486
We generally agree with the Sims Report recommendation with minor exceptions. First, while we agree that votes could be taken unit-by-unit on the representation issue, there is no magic to a unit-by-unit determination or vote where there are multiple units of a single employer. If, for example, a union was certified in a single location and then, subsequently, applied for certification of three new locations together, wishing to treat the three as a single unit and then consolidate it with the first unit, a single vote could take place across the three units and not necessarily in each of the three units separately. But these are questions better left to the OLRB in individual cases. The point is that the three new locations could be consolidated with the initial one, singly or together, and if there was a collective agreement for the first unit, either party could seek to apply it to the subsequent consolidation(s), or not, with or without modifications.
It is important that the consolidation of units is not automatic, particularly where there is an existing collective agreement. Parties should have to discuss and bargain the terms upon which the existing agreement applies, such as whether there is seniority by location or different wages or schedules for different locations. If the parties cannot agree, they ought to have the right to persuade the OLRB that the existing agreement should not apply in whole or in part to the new units, or should be applied in a restricted or particular way. For example, if there was a pre-existing collective agreement in one location and one of the parties was seeking to consolidate the new locations with the old one, the employer might seek to persuade the OLRB that consolidation would interfere with its ability to continue significantly different methods of operation or production at each location, or to argue that the employer’s ability to continue to operate these locations as viable and independent businesses would be undermined by the consolidation. An employer or a union that, for whatever reasons, believes the existing agreement should not apply to the newly certified unit, ought to be able to try to persuade the labour board of the merits of its case. The OLRB should have the discretion on a case-by-case basis to do what is appropriate from a labour relations perspective.
These powers, while limited to a single employer, need not be limited to a single union. Other unions, in addition to the first certified or voluntarily recognized union, could apply for certification and then consolidation or variance if there was a second successful application. There could also be a council of unions structure in place where the council represented all the constituent unions.
Finally, there is a need for separate provisions in the legislation and separate legal tests for the two-different consolidation and variance situations, described above.
We have already indicated that the test for changing longstanding bargaining units and bargaining relationships should be whether the OLRB is satisfied that the existing bargaining unit(s) is no longer appropriate for collective bargaining in the present circumstances.
The second consolidation or variation power is intended to apply in a more restricted situation and not to the entire private or public sector. It is a specialized provision, intended to provide an option for unionization where there are multiple units of a single employer, or smaller units of a large single location employer, in sectors/industries, (including subsectors) where employees are historically underrepresented by unions. In our view, the test would centre around whether the proposed new consolidated or varied unit contributes to the development of an effective collective bargaining relationship and serves the development of collective bargaining in the sector.
In response to the options in the Interim Report, some employer representatives argue that employees in that sector are not interested in collective bargaining or in unions. This may be true. It may also be true that unions have been dinosaur-like in their inability to adapt to modern culture, modern business structures, and the use of social media and that they have not communicated effectively with the working population. If these assertions are true and do not change, the recommendations will have little or no practical impact. However, this speculation by employers about employee preferences is not a reason to inhibit change designed to provide a meaningful option for employees who have a constitutional right to freedom of association, including meaningful access to collective bargaining.
Conclusion
Freedom of association, as interpreted by the Supreme Court of Canada, informs our recommendations in this area. The existing law is defective, both from a labour relations point of view and from a constitutional point of view and needs to be reformed.
Recommendations
- The Labour Relations Act, 1995 should be amended based on section 18.1 of the Canada Labour Code with the important modification that the test should be that the Ontario Labour Relations Board can review the structure if it is satisfied that the bargaining unit or units are no longer appropriate for collective bargaining in the circumstances.
- The Labour Relations Act, 1995 should be amended to provide that where the Ontario Labour Relations Board certifies a union (or council of unions) for a bargaining unit, including certification without a vote under section 1, and the same union or council of unions is certified for a unit of employees in a separate location of the same employer or for an additional bargaining unit at the same location, whether or not a collective agreement is in effect in the prior certified unit, the Board, on request, can review the structure of the bargaining units and consolidate or vary the description as the Board may determine. The Board will have the power to apply, with or without modifications, the terms of an existing collective agreement between that employer and union, to the newly constituted unit. The section will apply in sectors or industries where employees have been historically underrepresented by unions.
The legal test should give the Board broad authority to determine which factors it considers appropriate and, also, whether the proposed new unit and/or terms of the agreement contribute to the development of an effective collective bargaining relationship and serve the development of collective bargaining in the sector/industry. The remaining provisions of the new section would mirror, as the context required, the provisions of section 18.1 of the Canada Labour Code. For example, votes would not be required since the unit being added would have already met the certification requirements.
11.6 Broader-based bargaining
The above section dealt with the consolidation and variance of bargaining units in relation to a single employer. It did not deal with broader-based, multi-employer bargaining.
We have pointed out, above, and in our Interim Report, that the current Wagner Act single employer and single enterprise model of certification does not provide for effective access to collective bargaining for a large number of employees of small employers and employers with multiple locations. Organizing and bargaining individual contracts in thousands of small locations is inefficient, expensive and impractical. The single employer recommendations, above, address the single and multiple location issues of larger employers, but not the issue of many individual small employers, thus leaving a significant vacuum in many areas where collective bargaining is unlikely to take root. In Ontario, the union coverage rate in the private sector is below 7% in workplaces with fewer than 20 employees.
Options canvassed in the interim report
In our Interim Report, we canvassed two different labour relations models for multi-employer bargaining. One model
Current multi-employer bargaining in Ontario
We do have important examples in our province, where a large number of smaller employers and the unions representing their employees, have determined that they are well-served by standardized labour costs and have willingly combined to bargain on a sectoral basis. Also, unions have often agreed to bargain with multiple employers in councils of unions or individually. In construction, employers sought a compulsory system of province-wide bargaining and this, subsequently, was imposed legislatively. In other industries, such as healthcare, printing, trucking, the creative and entertainment industries and others, employers have seen their interests as being advanced and protected in a broad system of bargaining together.
Analysis
The extension model
With respect to the extension models, canvassed in Option 2 of the Interim Report, we have concluded that these are out of keeping with Ontario’s history and culture. In Europe, unions and broadly-based employer organizations commonly bargain and set sectoral terms and conditions of employment. The institutions and practices that are commonplace in Europe have evolved in the context of a distinct labour relations history. Similarly, Quebec’s history of a decree system is unique in Canada. In Quebec, various decrees have extended negotiated terms and conditions of employment to non-unionized employees in various sectors. However, the scope of that system has narrowed very considerably in recent years with the result that fewer and fewer employees are covered by it. More importantly, the Quebec model is also not in keeping with Ontario’s history and culture, even though Ontario had a similar but more limited experience with the Industrial Standards Act.
A recommendation based on an extension system, whereby some of the terms of the non-unionized sector are set by the unionized sector and then imposed when there is no democratic basis for the consent of the employees, does not seem practical or likely to be acceptable to most Ontarians. In our view, however, the process of sectoral regulation that we recommend under the ESA,
The labour relations options
As for options 4 and 5 that we canvassed in our Interim Report, there was virtually no support for Option 5 in the submissions made to us. Option 5 outlined a process for the acquisition of bargaining rights for an entire sector and geographical area, followed by multi-employer bargaining across the entire sector. However, there was interest in Option 4.
Option 4 was the option originally put forward in British Columbia in 1992 by a majority of the Special Advisors there.
While the British Columbia idea is creative and worthy of further exploration, it is not clear that it is workable to move from a situation where a sector has almost no collective bargaining at all to one in which a diverse group of employers in that sector would have to bargain together. For example, if, in a large urban market, several independent fast food operations were certified and then had to bargain together with a few different fast food franchisees of different franchisors and a few corporate stores of one large franchisor that had more than one union, it is unclear how effective bargaining would proceed. The process could be chaotic.
This is fundamentally a capitalist economy and employers are fiercely competitive. Large employers could easily work together in multi-employer bargaining to raise the cost of labour to crowd out smaller players and broaden market share. Also, how effective leverage would be brought to bear by the unions upon such a diverse group of employers is unclear.
Contemplating how this proposal would work raises very challenging issues. It would be much easier to assess and to resolve these issues, if there had been some experience of collective bargaining in the sector, for example, if a pattern agreement had already emerged and if some labour relations dynamic supporting broader bargaining had also emerged. It may be the case that in British Columbia, where the proposal originated in 1992, the practicalities seemed less daunting because there had already been some history of bargaining in multiple locations of single employers, such as in the fast food sector.
While there are some voluntary examples of multi-employer sectoral bargaining, and some example of compulsory multi-employer sectoral bargaining (as in the construction industry in Ontario), no jurisdiction that we are aware of has imposed a mandatory multi-employer collective bargaining regime on employers in a sector without any history of collective bargaining in that sector. Such an option, therefore, calls for a considerable degree of caution and careful assessment.
We have concluded that in order for broader-based multi-employer bargaining to be workable, there has to be a history of at least some collective bargaining in the sector. It is too large a step to go from no bargaining experience at all to a highly sophisticated multi-employer, multi-union collective bargaining regime. In other words, before forcing employers to bargain together, collective bargaining has to take root first with individual employers.
Our recommendation about facilitating the organization of multiple units of a single employer in specified sectors/industries where there are vulnerable workers in precarious work, if implemented, will potentially offer a way forward to multi-employer bargaining down the road. For example, if employers and franchisees in restaurants, retail, fast food and other specified sectors, become part of a collective bargaining regime as single employers, this could lead to some natural expansion towards multi-employer sectoral bargaining in those areas. An evolutionary approach is more likely to be successful than an imposed multi-employer model that has no current foundation to support it.
What is the alternative?
The alternative is to provide for and encourage movement towards broader-based bargaining structures where it is appropriate and workable.
First, there are some industries where franchising is commonplace. Although technically, there are multiple employers, these employers are tantamount to a single employer multi-location operation and should be treated in the same way. Second, there are special situations that lend themselves to broader-based bargaining and the government should work in these areas to facilitate and make sectoral bargaining effective. Third, there should be wider discussion of whether the statute should contain additional tools to allow broader-based bargaining to function effectively where it already exists, or as it develops naturally. Finally, we think it is important to encourage an ongoing discussion of sectoral bargaining and to keep the issue in focus as the economy and industries develop.
We stated, above, that there are some industries where, although technically, there are multiple employers, the employers resemble a single employer multi-location operation and should be treated in the same way. We now address this issue.
11.6.1 Franchising in restaurants, fast food, and similar specified sectors/industries
Franchising is a modern business model found in a range of industries and enterprises. The LRA does not explicitly deal with franchising, likely because, at the time of its development, franchising was not a significant factor in the economy.
Franchising is a form of chain store organization. Some businesses market their brands in multiple retail locations and may use a corporate model for each location, hiring a manager(s) at each, or they may use a franchise model to finance and operate the separate locations, or do a combination of both.
Franchisors are many and varied, operating in different industries and ranging in size from small businesses to multi-billion dollar international corporations whose brands can be found everywhere. Franchisors can expand in multiple locations and jurisdictions, selling the rights to market-branded products in a geographic location or area to a franchisee. The franchisor and franchisee operate through sophisticated contractual arrangements, which bind the franchisee to operating the business as set out and described in the contract and in operating manuals that are typically contractually binding on the franchisee. Through these mechanisms, the franchisor often mandates virtually every aspect of the business so that, from a public point of view, the product and the brand are the same, or almost the same, in every location. Price and product may differ in some ways, from time to time, but, overall, the entire point of the franchise model is to sell the products of the franchisor and to protect the brand; franchisees are normally bound by contract to do so. The franchisee contributes capital, manages the business and typically hires, fires and manages the employees.
A franchisor may or may not be an employer for LRA purposes depending on whether the conditions in section 1(4) of the LRA (the related employer provision) apply. We do not recommend a change to that section. For the purposes of our recommendation, we have assumed that the franchisee – not the franchisor – is the employer. In short, our proposals do not force franchisors to the bargaining table unless they are related employers under the existing law. Our goal is to make collective bargaining an effective option where there are many vulnerable workers in precarious low-paid work who do not currently have access to meaningful collective bargaining in the present legal framework.
We have recommended, above, that the LRA be amended where a single employer has multiple locations in sectors/industries that have been historically underrepresented by unions, including restaurants, fast food and retail. The question to be answered is whether businesses that are organized to sell a brand and products through a franchise system should be treated as though they were a single employer with multiple locations.
Competitors in an industry may operate either through a corporate model or a franchise model, or a combination of both, and there is no good public policy reason to treat one model differently from the other. So, for example, take three business competitors, which are large purveyors of fast food. One operates only corporate stores or locations. A main competitor in the same market, and selling similar products under a different brand, uses a franchise model where all of the locations are operated by franchisees. A third competitor uses a combination of corporate-owned stores and franchised stores. Should the different organizational models for selling three competing brands in the same market mean that one should be subject to unionization under a set of rules that are not applicable to the other two? Is it fair to employees of the many franchisees of the same franchisor that they have no effective access to collective bargaining while the employees of a competitor, who has multiple or some corporate locations, do? We think the answer to that question is obvious.
At the same time, it should be clear that we are not recommending a system where franchisees of different franchisors are compelled to bargain together. Nor are we recommending, as mentioned above, that the franchisor should be named as an employer with its franchisees, unless it is already a related employer within the meaning of section 1(4) of the LRA. As a result, the franchisor – absent a related employer determination by the OLRB – will not, as a matter of law, be involved in certification and/or bargaining if a franchisee is certified. Of course, a franchisor that operates through corporate stores may be certified as an employer.
The question is whether the franchisees of the same franchisor (and any corporate locations) should be treated as a group of employers who must bargain together if their various locations are certified. The argument against compelling franchisees of the same franchisor bargaining together is that they are individual businesses owned and operated by different people. Forcing them to bargain together is said to be unfair since it could impede their ability to operate their business as they choose.
We conclude that, for many reasons, it is good labour relations policy to treat franchisees of a common franchisor like a single large employer with multiple locations. It is reasonable that franchisees of the same franchisor bargain together. The essence of their franchise operations is that they do not operate their businesses in a way that is materially different. Moreover, to the extent that there are material differences, collective bargaining has flexibility to accommodate them.
Franchisees of a single franchisor market the same brand, sell the same products and operate in the same market, under the same contracts and policy manuals of the same franchisor. Their staffing, labour costs, and methods of operation are either the same or so similar that any differences are manageable. Franchisees of a single franchisor have such an obvious and overwhelming commonality that, except for location and size, the public cannot distinguish them. They have no distinct identity apart from the identity of the franchisor and the brand. Operating in the same municipality or region, they likely both share the same labour market and the same worker demographics. Any differences between franchisees can be addressed in collective bargaining.
The policy reason behind recommending the ability to consolidate units at multiple locations of a single employer, namely, to create a structure that makes employee access to meaningful collective bargaining possible, applies equally to multiple locations of the same franchisor. Collective bargaining cannot be meaningful if it is limited to a single franchisee location. It is likely that no single bargaining unit for a single location of a franchisee has sufficient leverage to improve terms and conditions of employment when, in the same geographic area, there are many other locations selling the exact same product at the same or similar price. The only way to bargain effectively is to be able to bargain collectively with multiple locations involved with that brand in that geographic area. In circumstances where the franchisees are all operating virtually identical businesses and selling the same brand and product in the same labour market, there are compelling reasons to treat them like a single employer with multiple locations.
Accordingly, we propose recommendations similar, but not identical, to those we made in relation to single-employer multiple-locations apply to franchisees of the same franchisor. Central bargaining will create stability by diminishing fragmentation and the concomitant vulnerability to strike/lockout in the location(s) of a single employer. It will reduce the possibility that franchisees will be whipsawed by a union on an individual basis. There is enormous flexibility built into the model we have recommended for single employers with multiple locations. The parties and the OLRB can be trusted to adapt appropriately to accommodate the interests of different franchisees of the same franchisor, where these differences are material.
Recommendation
- We recommend a model wherein certified, or voluntarily recognized, bargaining units of different franchisees of the same franchisor by the same union in the same geographic area, could be required by the Ontario Labour Relations Board to bargain together centrally, with representatives of the franchisee employers in that area, as set out below:
- An employer bargaining agency, composed of representatives of the franchisees, will represent the franchisee employers at the bargaining table. The Board should be given the authority to require the formation of an employer bargaining agency and set its terms, if necessary. The employer’s obligation to bargain centrally would remain so long as the union held bargaining rights.
- To mirror the recommendation on newly certified locations of a single employer, the Board would have the authority, if requested by a party involved, to direct that the terms of a collective agreement between a franchisee and a union could be extended to apply, with or without modifications, to a newly certified bargaining unit involving the same union and a different franchisee (in the same franchise organization). The Board would also have the power to require that the franchisee employers bargain centrally.
- In exercising its authority, the Board should consider whether the proposed terms and bargaining structure contribute to the development of an effective collective bargaining relationship and serve the development of collective bargaining in the sector/industry.
- Each franchisee would have individual responsibility for compliance with the resulting collective agreement and would sign an agreement binding on its location(s). In this model, agreements by the parties to distinct provisions applicable to some but not other franchisees can be dealt with in collective bargaining.
- Multiple locations owned by the same franchisee, a common situation in the franchise industry, could be consolidated as a single bargaining unit by the Board in appropriate circumstances pursuant to the recommendation on newly certified locations of a single employer, but that employer would also participate in central bargaining under this recommendation as a franchisee of the same franchisor. Similarly, if corporate stores owned by the franchisor of the franchisees governed by central bargaining were certified, these could be consolidated as a single bargaining unit of the same employer pursuant to the recommendation on newly certified locations of a single employer as well. In addition, if it was the same union as the union centrally bargaining with the franchisees that certified the franchisor, collective bargaining with the franchisor employer would be part of the franchisee central bargaining process.
- In centralized bargaining, any strike or ratification vote would involve the entire constituency of bargaining units and not the individual bargaining units.
11.6.2 Publicly-funded home care
Publicly-funded home care is a critical service that will grow in importance as Ontario’s population ages. The care is delivered and regulated through a complex system of institutional structures, which have been in a state of change. The vast majority of workers in home care are Personal Service Workers (PSWs) although there are also nurses and others. Among this group are many non-union employees, many of whom could be described as vulnerable workers, doing precarious work. There appear to be over 25,000 employees in the sector and approximately 30% are unionized. There are approximately 18 large employer service providers, some of which are for profit and some of which are non-profit. Unions are continuing to organize in the sector. There are two main unions in the field, although there are also some others with collective agreements. There is no sectoral bargaining but one collective agreement covers almost 4,000 employees and operates province-wide.
The employees largely work on a split shift basis, obligated to be available to those needing care at home often twice a day. Scheduling and hours of work are difficult issues inherent in the nature of the work.
The hourly rates for these workers were addressed by the government at a macro level in 2013/14. As a result, the wages of PSWs were raised dramatically over three years. These increases were achieved as a result of effective lobbying with senior levels of government; they were not accomplished through collective bargaining. It now appears that the funding formula for all the service provider employer agencies will be standardized in all parts of the province.
In other publicly-funded health care industries, such as hospitals and nursing homes, central bargaining mechanisms have evolved over the years, although none are legally required under the LRA. There is currently no mechanism whereby centralized bargaining for the home care sector could be required under any legislation.
In our view, given that there are only a relatively small number of service providers, two major unions, and, now, common funding for all the service providers, it is likely that, at some point, centralized bargaining will develop voluntarily in this industry. This makes sense when all these factors are present. How long it will take is speculative, but it may take many years to occur, or it may never happen. Parties would have to consent and see it as being in their interests.
Our mandate is to improve security and opportunity for those who are vulnerable and in precarious work and to support business in today’s changing economy. In our view, these employees would undoubtedly have been classified as vulnerable prior to the most recent set of significant wage increases. Their rates of pay were very low, they lack, or have limited, entitlements to benefits and pensions, 70% of the sector is not unionized, and the nature of their work gives rise to difficult issues around scheduling and hours of work. The workforce is also largely female and includes many immigrant workers.
Although less so now, as a result of the recent pay increases, a significant portion of the employees working in home care is likely still vulnerable. These workers have not lost the justification for specialized policy consideration in this review just because they received a dramatic wage increase. Indeed, the fact that these employees only received a significant wage increase because of lobbying and direct intervention by government, and not through collective bargaining, demonstrates that a meaningful system of collective bargaining is in their interests and also serves the public interest. Lobbying, as a method for changing the terms and conditions of employment of a specific group of public sector workers is not, in the long-term, a reasonable or reliable method for advancing the groups interests or to achieve the public need for a sustainable, critical health care service.
Collective bargaining, conducted on a centralized and sectoral basis, is likely in the interests of both the employees and the relatively small number of employers in the sector, and also serves the public interest in having broader-based bargaining mechanisms. Applying commonality and standardization where possible would likely lead to efficiencies. This is particularly so where government funding to employers is, or will be, done on a standardized basis and where the government has already established a history of making a funding decision for all PSWs. It is not in the public interest, nor is it in the interest of employees and employers in this sector, to simply allow the system to evolve towards centralized bargaining. On the other hand, voluntarism has been an important component in the evolution of centralized bargaining mechanisms and this may or may not be an important factor here.
Our recommendation is that the government commission a special and expedited inquiry to consult with all the relevant parties and to make recommendations as to whether and how centralized bargaining in the home care industry could be established within a reasonable time frame.
The inquiry should also consider the issue of dispute resolution. At the moment, strikes and lock-outs are permitted in this sector, but when a strike occurs the work is transferred to another provider. Some argue that this is fair because the employee loses the work and the employer loses the income, so both sides have equal incentives to resolve the matter. Whether this is the case or not, there are other factors that need to be considered with respect to the form of dispute resolution, such as other alternate dispute resolution mechanisms, the needs of the people who require home care services, the structure of home care bargaining, and numerous other issues that should be considered as part of an inquiry.
Recommendation
- The government should conduct an expedited inquiry, in consultation with the parties involved in the government-funded home care industry, into whether and how sectoral bargaining could be established in the sector within a reasonable time frame. The inquiry should include the issue of dispute resolution.
11.6.3 Arts and entertainment: the creative industries
The arts, entertainment and recreation sector of the economy has 57% of its workers in non-standard employment.
Although important and effective collective bargaining models are utilised, some argue that there are deficiencies and gaps in this sector that remain unresolved and are destabilising. For example, the federal Status of the Artist Act, while creative in its approach, has obvious limitations. It allows for the certification of artist associations and for the creation of producers’ associations, but producers are not required to form associations or to bargain together, potentially leaving artists’ associations with no sector-wide group with which to bargain. Because of its orientation to employees, the LRA may not address the needs of some groups whose employees and independent contractors may have to bargain together in order to be effective. Confusion over the status of workers (i.e., whether they are employees, dependent contractors, or independent contractors) and the absence of an employers’ organization are issues causing difficulties in newer industries like Reality TV production, an industry where there are allegedly few recognized rules and which union organizing describes as the “wild west” of the industry.
We have reviewed the submissions of the stakeholders in this area and all raise complex issues, which we think merit careful attention. Most of the artist and worker organizations discussed these issues amongst themselves and have urged us to adopt some of the philosophy and general approaches of the Quebec status of the artist act,
On the other hand, the Canadian Media Producers Association (CMPA), which is involved in English language television, film and digital media production, has warned us about the high costs of the Quebec system, including constant negotiations, labour relations instability and competition, and a lack of certainty, which is antithetical to the needs of a project-oriented, time-sensitive industry. The Association claims the Quebec act is causing the loss of investment and jobs in that province. It claims that such an act would have a profoundly detrimental impact on the entire sector of English language television, film and digital media production in Ontario. Overall, the Association argues that the sector is already heavily unionized, highly organized on a craft and sectoral basis, and successfully serves the needs of the various interest groups and, therefore, should not be interfered with.
We are aware that government has previously looked at potential change in this area and not proceeded with any action. In our view, there are several reasons why government should, once again, examine the advisability of legislative reform.
First, the area is very important to the Ontario economy, where the GDP contribution to the economy is higher than agriculture, mining or energy.
Second, the creative industries provide the main historic examples of the issues faced by contingent workers in our economy, and as those issues grow for a whole range of contractors and workers in other industries, a workable model of collective bargaining under new or amended legislation for the arts and entertainment industry could result in a model that others, engaged in contingent work in other industries, could follow.
Recommendation
- We recommend that Ontario conduct an inquiry and consultation with all affected interest groups to examine potential changes to the laws, which affect how personal services and labour are provided in the arts and entertainment sectors of the economy, for the purposes of supporting the artistic endeavour in those sectors and those who work in them.
11.6.4 Added legislative tools needed to facilitate sectoral bargaining
Except for the construction industry provisions, the current LRA may lack all the regulatory tools needed to organize and regularize multi-employer sectoral bargaining, even for those sectors where some level of broader-based bargaing has already developed (e.g., hospital sector). The LRA has rules regulating the possible certification of, and bargaining involving, councils of unions. The Act also has rules governing bargaining with an employers’ organization. However, whether employers’ organizations or councils of union are established is left to a voluntary decision by those parties. In short, the LRA is built around voluntarism.
Voluntarism is important and should be given due regard, but it has its limitations, such as where unions and employers manoeuvre inside and outside voluntary sectoral and multi-employer bargaining for strategic advantage. In our opinion, our society and economy have a strong interest in providing effective systems where common terms and conditions of employment for unionized employees can be negotiated across a wider swath of the economy. Therefore, where the conditions that support multi-employer or even single-employer sectoral bargaining exist, voluntarism may be limited and society’s interest in broader-based bargaining systems may predominate over the strategic interests of individual unions and employers.
The concept of broader-based bargaining merits a wider and more focused discussion than was possible in this Review. This discussion should address the question of whether the legislation should provide additional tools to compel multi-employer bargaining in some circumstances.
We recommend several matters for further discussion.
- The first issue is accreditation of employer organizations. Accreditation allows a majority of employers with a majority of employees in a sector to form an employer’s organization and compel the other unionised employers in a sector to be part of a unified bargaining agency.
- The second issue is whether employers should have available to them a process in which they can seek an order requiring unions to form a council of unions in circumstances where a single employer has more than one bargaining unit and bargaining relationships with more than one union.
- A final issue is whether there should be provision for multi-employer certification where a union could compel employers to bargain together through an employer bargaining agency.
British Columbia has a long history of provisions in their legislation in relation to these issues. It currently has tools for accreditation and for compelling unions to form a council of unions,
Recommendation
- The government should convene a consultation on whether the Labour Relations Act, 1995 should be amended to include:
- mandatory accreditation of employer bargaining agencies;
- mandatory councils of unions; and,
- mandatory certification for multiple employers.
11.6.5 The future of sectoral bargaining
As we have indicated above, the Wagner Act enterprise model is largely irrelevant to large groups of employees who work in smaller enterprises. Our recommendations with respect to multiple-location single-employer enterprises and the operations of franchisees provide some significant opportunity to broaden the enterprise model. If unionization did become more commonplace in chain restaurants, franchise operations and the retail sector, this would undoubtedly have a market impact affecting other employers, including an impact on market compensation rates, perhaps making sectoral bargaining more attractive for employers.
For employees, generally, the key public policy question is: should there be other means to advance freedom of association and collective bargaining for those who work in small workplaces? For both employers and employees, one of the key questions is: does it make sense to work towards common labour rates and working conditions?
In our view, this report should not be the end of the discussion on these issues. In our Conclusion, we recommend the creation of an Ontario Workplace Forum where leaders of the employer community, unions and employee advocates, together with government, could discuss important issues and opportunities regarding the workplace. We recommend that this issue of sectoral bargaining and regulation be a standing issue in those discussions.
Footnotes
- footnote[443] Back to paragraph Statistics Canada, Labour Force Survey.
- footnote[444] Back to paragraph This view is supported in the limited literature on the subject: See Sara Slinn, Collective Bargaining (Toronto: Ontario Ministry of Labour, 2015), prepared for the Ontario Ministry of Labour to support the Changing Workplaces Review, pp. 52-53. The view is also supported in the literature where Slinn reported that the better interpretation as to why unfair labour practice complaints under the Bill 7 regime fell is not because of a decline in employer resistance to unions but because unions were less likely to file complaints as a result of the greater scope for employer avoidance activity and more limited remedies: Slinn p. 15, including reference to Timothy J. Bartkiw, "Manufacturing Descent? Labour Law and Union Organizing in the Province of Ontario," Canadian Public Policy, 34.1 (2008), pp. 111-131.
- footnote[445] Back to paragraph “These studies consistently find that the presence of an MVC (mandatory vote certification) is associated with a statistically significant reduction in certification application activity, including success rates”: Slinn (2015), op. cit., pp. 11-12.
- footnote[446] Back to paragraph Slinn (2015), op. cit., p. 13, quoting Bentham, Karen, “Employer Resistance to Union Certification,” Relations industrielles / Industrial Relations, 57.1 (2002), pp. 159-187; Thomason, Terry and Silvana Pozzebon, "Managerial Opposition to Union Certification in Quebec and Ontario," Relations industrielles / Industrial Relations, 53.4 (1998), pp. 750-771; Chris Ridell, "Union Suppression and Certification Success," Canadian Journal of Economics, 34 (2001), pp. 396-410.
- footnote[447] Back to paragraph Sara Slinn, "An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification", Canadian Labour & Employment Law Journal, 11 (2004), pp. 259-302 at p. 271.
- footnote[448] Back to paragraph Calculated from OLRB Annual Report, Table 4 Certification and Termination of Bargaining Rights Cases.
- footnote[449] Back to paragraph Chris Riddell, "Union Certification Success under Voting Versus Card-Check Procedures: Evidence from British Columbia, 1978-1998," Industrial and Labor Relations Review, 57 (2004), p. 493-517; Sara Slinn (2004), op. cit., pp. 259-302.
- footnote[450] Back to paragraph Felice Martinello, "Correlates of certification application success in British Columbia, Saskatchewan and Manitoba", Relations Industrielles/Industrial Relations (1996), pp. 544-562; Susan Johnson, (2002), Card check or mandatory representation vote? How the type of union recognition procedure affects union certification success, The Economic Journal, 112(479), pp. 344-361.
- footnote[451] Back to paragraph Mounted Police Association of Ontario v. Canada (Attorney General), (2015) 1 SCR 3, para. 81.
- footnote[452] Back to paragraph Mounted Police Association, op. cit., para. 88.
- footnote[453] Back to paragraph Section 72 of the LRA.
- footnote[454] Back to paragraph Section 70 of the LRA.
- footnote[455] Back to paragraph [1982] OLRB Rep. August 1162.
- footnote[456] Back to paragraph Section 11 of the LRA.
- footnote[457] Back to paragraph Ibid.
- footnote[458] Back to paragraph The Special Advisors were composed of a neutral, Vince L. Ready, and leading union and management lawyers, John Baigent and Thomas A. Roper Q.C.
- footnote[459] Back to paragraph Recommendations for Labour Law Reform, V. Ready, J. Baigent, and T. Roper, Victoria: Queen’s Printer for British Columbia, September 1992, p.26.
- footnote[460] Back to paragraph Unless the union forfeits its right to arbitration by bargaining improperly as we discuss, below.
- footnote[461] Back to paragraph Card-based certification in the federal system is essentially an administrative procedural model. These procedures do not treat the certification procedure as a contest. Instead, the approach to certification is akin to licensing a union to act as the exclusive bargaining agent for a unit. Supporters of this perspective argue that it accurately reflects the fact that certification is no more than the first step to bargaining. The focus is on an efficient administrative procedure, that “…without much fanfare, will get the parties to the negotiating table as quickly as possible”: Weiler, Paul, 1983, "Promises to Keep: Securing Workers' Rights to Self-Organization under the NLRA," Harv. L. Rev. 96 (8), 1769-1827. In short, it addresses the certification application and certification decision as an administrative decision by a labour board. The certification process is not treated as a competition between the union and employer for employees’ “hearts and minds”: Weiler, op cit., p. 1809. Reflecting this administrative approach, a card-based system may restrict the legitimate role of the employer in the certification procedure to challenging matters, such as the scope of the proposed bargaining unit, voter eligibility, and membership card validity, and does not explicitly recognize a campaign period, as in the construction certification model.
- footnote[462] Back to paragraph Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4.
- footnote[463] Back to paragraph Slinn (2015), op. cit., pp. 46-47.
- footnote[464] Back to paragraph Yarrow Lodge Ltd., et al. v. HEU et al. (1993) BCLRB No. B444/93.
- footnote[465] Back to paragraph Yarrow Lodge Ltd., ibid.
- footnote[466] Back to paragraph Under our proposed new rules, or first contract arbitration under the existing rules.
- footnote[467] Back to paragraph Mounted Police Association of Ontario, op. cit.; Saskatchewan Federation of Labour, op. cit.
- footnote[468] Back to paragraph Section 15 of the Regulation respecting the exercise of the right of association under the Labour Code states: “For the purposes of voting, the employer shall draw up a list of employees according to the bargaining unit agreed upon by the parties or, if necessary, according to the decision of the Tribunal. The list shall contain the surname, given name and address of the said employees.”
- footnote[469] Back to paragraph NLRB, Representation Case Rules Effective April 14, 2015.
- footnote[470] Back to paragraph See, for example, St Thomas Elgin General Hospital v OPSEU Local 152, (2013) CanLII 76996 (ON LRB) and The Rehabilitation Institute of Toronto v. Canadian Union of Public Employees, Local 1156, (2000) CanLII 12710 (ON LRB).
- footnote[471] Back to paragraph See Slinn (2015), op. cit., at pp.18-19.
- footnote[472] Back to paragraph Working Enterprises Consulting & Benefits Services Ltd. v. United Food and Commercial Workers International Union, Local 1518, (2016) CanlII 29625 (BCLRB).
- footnote[473] Back to paragraph See Slinn (2015), op. cit., pp.19-21.
- footnote[474] Back to paragraph The Slinn study reports that use of IETV has wide support in the literature and the experience of various boards using IETV is encouraging: Slinn (2015), op. cit., pp. 20.
- footnote[475] Back to paragraph Hospital for Sick Children, [1985] OLRB Rep. Feb. 266,which is cited in The Mississauga Hospital, [1991] OLRB Rep. Dec. 1380.
- footnote[476] Back to paragraph Woodward Stores (Vancouver) Limited, BCLRB No. 129/74.
- footnote[477] Back to paragraph Island Medical Laboratories Ltd., BCLRB No. B308/93 (Leave for Reconsideration of IRC No. C217/92 and BCLRB No. B49/93), 19 C.L.R.B.R. (2d) 161.
- footnote[478] Back to paragraph Woodward, op cit.
- footnote[479] Back to paragraph International Brotherhood of Electrical Workers v. Casino Rama Services Inc., (2009) CanLII 3266 (ON LRB).
- footnote[480] Back to paragraph See recently: North of Superior Healthcare Group v Service Employees’ Union Local 1 Canada, (2016) CanLII 55190 (ON LRB).
- footnote[481] Back to paragraph Slinn (2015) op cit., pp. 31-32.
- footnote[482] Back to paragraph Mounted Police Association of Ontario, op. cit., para 71.
- footnote[483] Back to paragraph Ontario (Attorney General) v. Fraser, 2011 SCC 20, para. 32.
- footnote[484] Back to paragraph See the discussion by Slinn (2015) op cit., pp. 30-32.
- footnote[485] Back to paragraph Sub-committee of Special Advisors (September 1992), Recommendations for Labour Law Reform, A Report to the Honourable Moe Sihota, Minister of Labour. The employer-side representative on this sub-committee dissented from this recommendation (his view is set out in Appendix 3 to the report).
- footnote[486] Back to paragraph Andrew Sims, Rodrigue Blouin, and Paula Knopf (1996), Seeking a Balance: Canada Labour Code Part One Review. Hull: Minister of Public Works and Government Services, pp. 97-98.
- footnote[487] Back to paragraph Changing Workplaces Review – Interim Report, (Toronto: Ontario Ministry of Labour, 2016), Section 4.6.1, p. 114.
- footnote[488] Back to paragraph Ibid., Section 4.6.1, p. 124.
- footnote[489] Back to paragraph Ibid., Section 4.6.1, pp. 124-125.
- footnote[490] Back to paragraph Ibid., Section 4.6.1, Option 2, p. 123. Unifor, in its submission to the Changing Workplaces Review, proposed a detailed model for the application of employment standards and collective bargaining at a sectoral level. Among other things this proposed model would provide authority to the OLRB to define an industry and prescribe for that industry one or more terms or conditions of employment, applying to employers and employees in the industry: Unifor, Building Balance, Fairness, and Opportunity in Ontario’s Labour Market, September 2015, Part VI.
- footnote[491] Back to paragraph Slinn (2015), op. cit., pp. 69-74.
- footnote[492] Back to paragraph See Chapter 6.
- footnote[493] Back to paragraph Recommendations for Labour Law Reform (1992), op. cit., pp. 30-33. There was a strong dissent by Tom Roper Q.C., a management labour lawyer: ibid., Appendix 3.
- footnote[494] Back to paragraph For example, MacDonald’s Canada’s website states that: “Approximately 80% of McDonald’s Canadian restaurants are locally owned and operated by independent entrepreneurs in communities from coast to coast”.
- footnote[495] Back to paragraph Ontario Ministry of Finance, based on Statistics Canada, Labour Force Survey.
- footnote[496] Back to paragraph Ibid.
- footnote[497] Back to paragraph Act respecting the professional status of artists in the visual arts, arts and crafts and literature, and their contracts with promoters.
- footnote[498] Back to paragraph Very late in the process, we received a draft model act from one group but there was no opportunity to discuss it, much less consult with respect to its contents.
- footnote[499] Back to paragraph Ontario’s Creative Cluster: Growing Faster than the Rest of the Economy: Ontario Ministry of Tourism, Culture and Sport, November 2, 2015.
- footnote[500] Back to paragraph Sections 41, 43 and 44 of the British Columbia Labour Relations Code.
- footnote[501] Back to paragraph Recommendations for Labour Law Reform (1992), op. cit., p. 30.