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Federal Employees’ Voting Rights Act facilitates union decertification, mandates secret ballot vote-based majority for certification

2015-02-12New legislation in the federal sector will mandate secret ballot vote-based majorities for both the certification, and the decertification of bargaining agents. Bill C-525, An Act to amend the Canada Labour Code, the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act (certification and revocation – bargaining agent), referred to as the Employees’ Voting Rights Act, received Royal Assent on December 16, 2014 and will come into force on June 16, 2015. Although the new legislation significantly changes the way in which unions gain and lose bargaining rights in the federal sector, Bill C-525 brings the federal legislation in line with most provincial jurisdictions including Ontario.

The most significant change introduced by the Employees’ Voting Rights Act to the Canada Labour Code is the elimination of automatic “card check” certification. The result is that the process for certifying a union will always require a representation vote. Previously, under the automatic card check certification process, if a majority of employees in a proposed bargaining unit signed an application for membership in a union, and paid the union a minimum of $5.00, the union would be certified by the Canada Industrial Relations Board (the “Board”) automatically. If the union had less than a majority but could nevertheless demonstrate that it had the support of not less than 35% of the employees, it could still apply to the Board for certification and a secret ballot vote would be held. Under the new rules, the Board must order a representation vote regardless of whether the union can demonstrate it has a majority. In addition, the support threshold necessary to trigger a secret ballot vote is raised from 35% to 40% of employees in the bargaining unit.

In terms of decertification, prior to Bill C-525 an employee who could demonstrate that he or she represented a majority of employees in a bargaining unit could apply to the Board for an order revoking union certification. Generally a representation vote would be held unless the Board used its discretion to satisfy itself of the majority’s position. Under the new rules, a vote on decertification is mandatory and the threshold for triggering the vote is reduced from a majority of employees to 40%.

The same changes have also been made to the certification and decertification provisions under the Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act.

By Steven Williams, Emond Harnden LLP

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