Part II – The Neverending Story: The Labour Relations Code Strikes Back
As we regaled you with our post last week, labour and employment-related legislation in BC and federally has been subject to some major changes in 2019. Following last week’s post about changes to the BC Employment Standards Act, this is the second installment in our four-part series on the legislative changes that could affect you or your business, and we are focusing on the BC Labour Relations Code. Stay tuned for our upcoming posts on the Canada Labour Code and the BC Human Rights Code.
Part II- The Labour Relations Code Strikes Back
On April 30, 2019, the BC government introduced Bill 30 – 2019: Labour Relations Code Amendment Act, 2019 (“Bill 30”) to amend the Labour Relations Code (“Code”), which has since become law. Bill 30 introduces a number of changes to the labour relations landscape in British Columbia. We’ve summarized some of the more notable ones below:
The definition of what constitutes legal “picketing” under the Code has been narrowed, and now expressly excludes consumer leafleting from its definition, provided the leafleting does not unduly restrict access to a place of business, prevent a business from operating or prevent employees from reporting to work. While this is more of a formal change than a substantive one (the Supreme Court of Canada having already ruled that the former definition was invalid), the change provides unions with more explicit legislative protection to draw public attention to workplace concerns without being considered to have engaged in “picketing” under the Code. (Code, section 1)
The Code now requires that a certification vote occur within five “business days” (excluding weekends and stat holidays) of an application for certification, replacing the previous ten “day” standard. (Code, section 33)
While relatively benign on its face, the Code now restricts employer communications directed to employees to “statement[s] of fact or opinion[s] reasonably held with respect to the employer’s business”. This change will affect employers and their ability to communicate with their employees, particularly during certification drives. Employers will need to be cautious in light of this change as we wait to see how the Labour Relations Board will interpret this new language, particularly in light of the new provision regarding remedial certifications (discussed below). (Code, section 8)
The Code now contains an express provision granting the Board the authority to certify a bargaining unit without a vote if the employer has engaged in an unfair labour practice. In conjunction with the change to employer communications, this could have significant impacts on the union certification process and its outcome. (Code, section 14)
The maximum fines that can be imposed for a refusal or failure to carry out an order made under the Code has been significantly increased up to $5,000 for an individual and $50,000 for an employer or union. (Code, section 158)
Case Management Conference
In addition to expanding access to settlement officers to assist with grievance matters, arbitrators are now required to schedule a case management conference within 30 days of being appointed to hear the grievance in order to schedule the exchange of documents, hearing dates and to attempt to settle the dispute. It is hoped that this amendment will streamline and bring consistency to the grievance arbitration process. (Code, section 88.1)
The Code has further expedited the engagement of the expedited arbitration process, and now requires applications for an expedited arbitration to be made within 15 days of the completion of the grievance procedure (down from 45 days). From there, the arbitrator assigned to the grievance must hold a case management conference within seven days of his or her appointment and conclude the arbitration itself within 90 days of the date the matter was first referred to arbitration. Following the end of the hearing, the arbitrator, if requested to do so, is required to provide an oral decision within a single day with a written decision to follow within 30 days. (Code, section 104).
This one is not a change, but important to note nonetheless. Following extensive debate in the legislature over the merits of retaining or doing away with the secret ballot vote on certification applications, the Code has retained the secret ballot vote. Employers will be relieved that they are not required to return to the pre-2002 “card check” system for certification, which permitted a union to certify a bargaining unit by signing up more than 50 percent of the proposed bargaining unit employees. (Code, section 39)
Statutory Freeze Period
The Code now prohibits any changes to terms of employment for twelve months following the certification of a new bargaining unit, up from the previous four months, and has increased the period during which a bargaining unit can apply to be de-certified, from ten to twelve months.