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Employees’ Voting Rights Act significantly changes federal labour relations

Hugh R. Dyer, Toronto

The Employees’ Voting Rights Act (the “EVRA”) significantly changes the way in which unions gain and lose bargaining rights in the federal sector in Canada. Federal labour relations law applies to a variety of sectors including the federal public sector, banking, inter-provincial and international transportation, broadcasting, telecommunications and aeronautics. The EVRA will become effective on June 16, 2015.

Traditionally, a trade union in Canada could become certified by a labour relations tribunal by providing written evidence that it represented a majority of employees in a bargaining unit (i.e. a group of employees found to be appropriate for collective bargaining). The written evidence often took the form of membership cards. In some jurisdictions, more than a bare majority was required. Secret ballot votes were required in certain cases where the union could not demonstrate sufficient support on the basis of membership evidence alone. Votes were relatively rare. This traditional system is referred to as “card based”.

While this system was in place in many Canadian jurisdictions for many years, it was frequently criticized by employers and other analysts on the basis that it permitted a union to become certified through exercising undue influence on employees. These critics of the card based system advocated that a union should have to prove majority support through secret ballot representation votes. In the late 1990s, Ontario adopted a mandatory vote system. Today, six Canadian provinces require secret ballot votes as their primary means to determine whether or not a union should be certified.

The Canada Labour Code (the “Code”) is the primary legislation governing labour relations in the federal sector. Currently, the Code permits a union to be certified if it can demonstrate majority support based on membership evidence only. If the union can demonstrate that it is supported by at least 35 percent of the employees in the proposed bargaining unit, but less than a majority, the Board will order a secret ballot representation vote. Secret ballot votes are currently relatively rare in federal certification applications because unions rarely apply for certification unless they have a majority of the employees in the unit signed up as members.

The EVRA amends the Code and will abolish the card based system in the federal sector. The EVRA also raises the threshold for support required to obtain a vote from 35 to 40 percent. If a union can demonstrate that at least 40 percent of the employees in the proposed bargaining unit wish to have a union represent them as their bargaining agent, the Canada Industrial Relations Board, the tribunal which administers labour relations under the Code, will conduct a secret vote. The union will only be certified if the majority of employees who cast a ballot vote in favour of the union.

The EVRA also amends the process by which a union can lose its bargaining rights. Under the current provisions of the Code, employees seeking the revocation of a union’s bargaining rights must submit evidence that a majority of the employees in the bargaining unit wish to have the certification of the union revoked. This can only be done at certain designated times. The EVRA reduces the level of support required to file a termination application from a majority to 40 percent. Under the current version of the Code, a secret ballot vote is not necessarily required in a termination application but the board’s practice is generally to hold one. The EVRA makes a vote mandatory if the 40 percent threshold is satisfied.

The Parliamentary Employment and Staff Relations Act and the Public Service Labour Relations Act govern labour relations in the federal public service. Both statutes are amended by the EVRA so that certification may be granted and revoked based on a similar process to that found in the amended Code.

It is difficult to predict the EVRA’s effect on the percentage of the federal workforce which is unionized, as that statistic is affected by a number of factors. However, employers and advocates of individual employee rights should view the EVRA as enhancing the rights of individual employees under federal labour relations law.

Miller Thomson LLP

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