In less than one year the new Government in Victoria has enacted legislation that: made education an essential service; mandated secret ballot votes prior to union certification (giving employers an added opportunity to intimidate workers); stripped worker’s rights from collective agreements; removed broader-based bargaining in the construction industry; and repealed the Skills Development and Fair Wage Act.
More recently, the Government circulated a Discussion Paper on possible amendments to the Labour Relations Code (the "Code"). Although the Government invites "stakeholders" to comment on the Discussion Paper, it has imposed an extremely limited timeline for the receipt of submissions (April 11, 2002). Changes to the Code are expected to be tabled in the legislature in quick succession. With such a short timeline, the Government is attempting to avoid real dialogue with the public or labour regarding the proposed amendments.
While the Government claims that the "discussion issues reflect proposals for changing the Code that have come to the Ministry [of Labour] from a variety of sources", with one exception they reflect business and cost-cutting interests. An examination of the issues included in the Discussion Paper, along with an examination of the Ministry’s earlier Service Plan Summary, sheds light on the Government’s true objectives.
Reading the two Ministry documents together, it is apparent that the intention is to reduce Labour Relations Board resources, withhold services, and offer fewer Code remedies to unions and their members. These changes —— changes that will significantly undermine the rights of employees —— are being proposed without any evidence of problems requiring such changes.
The Discussion Paper opens with a suggestion to exclude "consumer leafleting" from the definition of picketing. Excluding consumer leafleting from the definition of picketing allows employees to leaflet without sanction from the Labour Relations Board. This proposal is included because the Supreme Court of Canada recently ruled that the current definition of picketing is overly broad and contrary to the Charter of Rights and Freedoms. The Government must, therefore, restrict the definition of picketing in the Code. The proposed amendments (there are two suggestions) are inadequate, however, because they only exclude consumer leafletting from the Code. There may well be other forms of expression constitutionally protected (e.g., secondary picketing and political protests) that should also be excluded.
Who is excluded?
The Discussion Paper also suggests broadening the definition of who is a manager, effectively increasing the number of employees excluded from union representation under the Code, and increasing the company’s ability to maintain operations when job action has been taken. The Government has repeatedly stated that it will not tamper with the replacement worker provision in the Code. However, depending upon the breadth of the management exclusion clause, employers may accomplish the same thing by using excluded personnel as "replacement workers" during job action.
The Discussion Paper suggests amendments to section 2 of the Code. Section 2 currently provides, among other things, that a purpose of the Code is "to encourage cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and promoting workplace productivity." The Discussion Paper suggests that the above statement is not sufficient and that the Code needs to recognize "employee rights and competitiveness."
A closer analysis of the words used in this proposal is telling. "Competitiveness" is a euphemism for fewer employee protections. A focus on competitiveness will shift the labour relations framework away from employee protection, to the protection of business interests. The addition of "employees" in section 2 of the Code is equally troublesome in that this inclusion would have employees recognized separately from unions. This would presumably permit anti-union employees to obtain standing as a party in potentially any matter before the Labour Relations Board. Employers have been known to fund "certain employees" in an attempt to decertify or otherwise undermine a union.
These proposed changes to section 2 are important because all adjudicators at the Labour Relations Board are required to consider the purposes in section 2 when rendering a decision. Consider, for example, what would happen if adjudicators were compelled to consider an employer’s "competitiveness" when determining whether a group of employees was an appropriate bargaining unit. The premise behind collective bargaining is that individual employees group together to increase their bargaining power vis-à-vis their employer. According to the proposed changes to section 2, if a proposed bargaining unit actually increased the employees’ bargaining power this would presumably affect the employer’s competitiveness. In such a scenario, would the adjudicator then find that the bargaining unit was not appropriate because it could potentially undermine the employer’s competitiveness? (I say potentially because, contrary to public perception, there are many ways in which unions actually increase employers’ competitiveness.)
Increasing the employer’s "right to communicate" or right to intimidate
Another area for discussion is the employer’s "right to communicate" in section 8 of the Code. Employers currently have the ability to communicate to their employees any fact or opinion reasonably held concerning their businesses. The Discussion Paper suggests broadening this right to include specific rights for employers to communicate during certification and decertification drives. One suggestion allows the employer to have a meeting with potential members of the bargaining unit prior to certification and decertification votes. Allowing such pre-vote meetings will only increase the likelihood that employees will be subject to threats, coercion and intimidation by anti-union employers.
It is important to remember that the Government has already passed legislation, without consultation, mandating a vote prior to certification. This was done despite overwhelming evidence that votes increase the likelihood that employers will interfere with their employees’ wishes with respect to union representation. Permitting votes, especially when combined with increased employer communication, results in an election-style campaign, often with illegal tactics designed to intimidate employees from voting for the union.
This suggested amendment to section 8 of the Code would undermine the protections afforded through the certification process: that employees have the ability to join a union and collectively bargain with their employer where a clear majority has so chosen. A decision regarding whether or not to certify should be solely the decision of the employees in question. Allowing employers to influence their employees’ decision will result in fewer employees having the ability to organize.
Other proposed amendments are equally problematic. Changes to section 33 would make it easier for employers to eliminate unions and operate a non-union shop. These amendments are aimed at allowing construction industry employers to operate union-free, although it will affect other businesses as well. Amendments to section 35 would terminate the collective bargaining relationship if a business were sold or otherwise changed ownership during a bankruptcy proceeding. Currently, collective agreements may be canceled but the union certification remains intact. Terminating the collective bargaining relationship, in addition to denying workers union protection when it is most needed, would also make declaring bankruptcy more attractive for businesses -- hardly a desirable outcome for creditors or workers.
The proposed amendments call for a vote when there is an application for partial decertification. This would remove the Labour Relations Board’s discretion to consider relevant factors that often make a vote unfair in the circumstances (e.g., the wishes of the majority, the destabilizing effect on employees who would remain in the bargaining unit, and whether the application was tainted by employer interference).
Cutting costs and privatizing service
Lastly, the Discussion Paper includes proposals to streamline the labour relations process. Many of these are cost-cutting measures or measures aimed at shifting costs to the parties (i.e., privatizing mediation services). These measures will have substantive negative effects on unions and their members. One example is the amendment to extend the timelines for Labour Relations Board processes. This would result in unions not receiving a timely remedy in an unfair labour practice complaint (e.g., when a union activist is fired during an organizing drive). It is important to note that the proposed extension of timelines has no application to strikes and picketing issues before the Board — when the extension of timelines would be helpful for workers.
There is no doubt that, if implemented, the changes outlined in the Discussion Paper will result in a dramatic shift in the balance of power between employers and employees. The proposed amendments will make it more difficult to certify, and easier to decertify, a union. The only conclusion that can be drawn is that the proposed amendments are an attempt to reduce unionization in the province, in the interests of "competitiveness." However, the consequence will surely be growing confrontation — not exactly the best climate to attract increased investment.
Diane MacDonald is a labour lawyer in Vancouver and a research associate with the Canadian Centre for Policy Alternatives. Her 1998 Ph.D. dissertation focused on collective bargaining structures in British Columbia.