In February 2018, the British Columbia Minister of Labour appointed an independent panel to review the Labour Relations Code (the "Code") and recommend changes. The panel's report was publicly released on October 25, 2018. The report, entitled Recommendations for Amendments to the Labour Relations Code, sets out 29 recommendations.
Notably, the report recommends:
- The curtailment of employer free speech: the report recommends that section 8 of the Code, which currently permits employers to express "views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion", be curtailed to permit only the "freedom to communicate to an employee a statement of fact or opinion reasonably held with respect to the employer's business". This change would reduce the scope of permissible employer speech and revert the law to what was permissible prior to 2002.
- Keeping a secret ballot for certification votes: the report recommends that the current secret ballot vote for union certification be retained rather than returning to a card-check certification process. This was the only recommendation on which one member of the three-person panel dissented—BC unions have strongly voiced their desire for a return to the card-check process which exists in all other provinces, so this dissent by a union-side lawyer may carry some weight with the NDP government.
- A shortened timeline for the certification vote: the report recommends that the time period between an application for union certification and the certification vote be reduced from 10 days to 5 days (excluding holidays and weekends).
- A lessoned evidentiary burden on unions seeking remedial certification: the report recommends that the Labour Relations Board have the remedial authority to order certification of a trade union where an employer has interfered in a union drive by committing certain unfair labour practices, without requiring evidence that the union likely would have obtained the requisite support but for the employer's conduct. If this recommendation is adopted, we expect a significant increase in unfair labour practice complaints during organization drives as unions may attempt certification on this basis even if they lose the vote.
- An extension to the statutory freeze period: the report recommends that the current statutory freeze period after certification of a trade union, during which time an employer may not alter pay or terms of employment, be extended from 4 months to 12 months.
- A change to the definition of picketing: the report recommends that the definition of "picketing" be amended to exclude consumer leafleting that does not unduly impede access or egress or prevent employees working at or from the worksite. We note that this recommendation would simply make the Code compliant with the current law set out by the Supreme Court of Canada.
- No change to current rules regarding the use of replacement workers: the report recommends that there should be no change to the rules limiting employers’ use of replacement workers during a strike or lockout.
Additional areas for change highlighted in the report include: the scope of appellate review of arbitration awards; increasing fines for non-compliance with the Code; timing rules for raids by other unions; timelines for the expedited arbitration procedure; removal of teachers from the essential services provisions; and mail-in certification vote ballots, among other areas.
The report sets out recommendations only—these proposed changes are not law, and amendments to the Code have not yet been tabled in a bill. The government has not yet indicated which recommendations it will accept and which it will reject. Accordingly, the current language in the Code will continue to govern British Columbia labour relations until the government passes legislation to amend the Code.
The public is invited to provide feedback on the recommendations until November 30, 2018 by emailing LRCReview@gov.bc.ca.
Rob Sider, QC, is the head of the Labour, Employment and Human Rights Group at Lawson Lundell. His practice focuses on management-side labour and employment law. He advises on labour and employment aspects of commercial ...
Jim is an associate in the firm’s Labour, Employment and Human Rights group. Jim advises and represents clients on a variety of labour and employment issues, including grievance arbitrations and mediations, human rights ...
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