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Certification and recertification requirements change for federally regulated workplaces beginning June 22, 2017

certificationYou may recall that Bill C-4, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act, was introduced into the House of Commons back in January 28, 2016. Subsequently, it was introduced into the Senate October 20, 2016, received Royal Assent June 19, 2017, and came into force June 22, 2017. In a nutshell, the purpose was to restore the procedures for certification and revocation of certification of bargaining agents that existed before June 16, 2015. Further, it removed the requirement that labour organizations and labour trusts provide annually to the Minister of National Revenue certain information returns containing specific information that would be made available to the public.

Previously, the law allowed for the “card check” system, which enabled a union to be automatically certified without a vote when it could demonstrate that the majority of the employees in the proposed bargaining unit signed membership cards and paid a nominal fee. Also, the threshold for support for decertification was 50 percent plus one.

However, the Employees’ Voting Rights Act was created in 2014, and changed this system for federally regulated workplaces to make it more difficult to certify and easier to decertify. That is, the purpose was to raise the threshold for certification by requiring a vote by secret ballot (requiring a majority of those who cast a ballot) and lower the threshold for support for decertification to 40 percent.

Furthermore, Bill C-377 was created in 2015 to require additional financial disclosure obligations, namely requiring labour organizations to provide financial information to the Minister for public disclosure. Recently, the following changes were made by Bill C-4:

  • Certification: The mandatory secret ballot process for certification has been removed, and a union can become certified if it can show membership evidence of more than 50 percent of the employees in the bargaining unit. That said, if the union applies for certification as bargaining agent and there is evidence of support of 35 to 50 percent of the employees, the Board must order representation vote.
  • Decertification: In the case where there is an application for revocation of certification where the union is the bargaining agent, any employee who claims to represent a majority of the employees in the unit may apply to the Board for an order revoking the certification of that trade union. Essentially, the threshold for decertification (where the Board must revoke the certification) has been raised back to 50 percent plus one.
  • Financial disclosure requirements: The financial disclosure obligations set out in Bill C-377 are repealed as a result of this amendment.

What does this mean for employers?

As mentioned above, the changes came into force June 22, 2017, with the exception of sections 12 and 13 dealing with the Income Tax Act. This means that the amendments will only apply to applications for certification and recertification that are filed with the Board after June 22, 2017. Furthermore, employers in unionized workplaces are recommended to become familiar with these changes and take a careful look at the transitional provisions in Bill C-4 in the case where there is an existing application with the Board.

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Christina Catenacci

Christina Catenacci, BA, LLB, LLM, was called to the Ontario Bar in 2002 and has since been a member of the Ontario Bar Association. Christina worked as an editor with First Reference between February 2005 and August 2015, working on publications including The Human Resources Advisor (Ontario, Western and Atlantic editions), HRinfodesk discussing topics in Labour and Employment Law. Christina has decided to pursue a PhD at the University of Western Ontario beginning in the fall of 2015.Read more
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