How Employers in British Columbia Should Prepare for Labor Code Updates

 

By Catherine Skrzypinski April 16, 2019
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​VANCOUVER—The working world was a different place the last time British Columbia, Canada, held a full review of its Labor Relations Code. The year was 1992—when the Internet was in its infancy, and a landline telephone was the main communication tool.

"That was a long time ago," said Barry Dong, an attorney with Harris & Company LLP, a workplace law and advocacy firm in Vancouver, British Columbia, speaking at the Chartered Professionals in Human Resources of British Columbia & Yukon's HR Conference and Tradeshow 2019. "Labor laws of the province should reflect the changing workplace in British Columbia, and the changes should be relevant to today's workplace."

The Labor Relations Code governs how labor and management work together, such as how workers join unions, how employers interact and how to resolve collective bargaining disputes.

Dong, a member of the Labor Relations Code review panel who represents employer interests, said that British Columbia's economy has evolved from a predominantly natural-resources hub in mining and forestry to prospering sectors such as technology and entertainment. People also perform their jobs differently today with the emergence of the gig economy, remote work and the rise of globalization.

In addition, more women have entered the workforce in British Columbia since the early 1990s. According to Statistics Canada, women make up around 49.5 percent of British Columbia's current workforce.

Labor Relations Code Recommendations

Sandra Banister, an attorney with Banister & Company, a Vancouver-based law firm specializing in labor, employment and civil litigation, is also a member of the review panel, representing union interests. She said the panel was tasked with assessing issues to promote stability in labor and management relations.

"We also had to ensure workplaces support a growing, sustainable economy with fair laws for workers and business in British Columbia," she added.

The Recommendations for Amendments to the Labor Relations Code 2018 discuss union certification processes, unfair labor law practices and arbitration procedures. Some of the review panel's significant recommendations include:

  • Narrowing the right of employer free speech during union organization campaigns. Instead, the British Columbia Labor Relations Board would speak on behalf of employers through an enhanced website and neutral materials provided to employees.
  • Lengthening union membership card validity from 90 days to six months.
  • Extending the existing four-month statutory freeze on terms and conditions of employment to 12 months following union certification. This expansion would prevent employers from making changes to their business without employee consent.
  • Increasing fines for failure to comply with a Labor Relations Board order to $5,000 for individuals and $50,000 for companies and unions. Right now, the fines are $1,000 for individuals and $10,000 for companies and unions.
  • Providing an enhanced, expedited arbitration process. The Labor Relations Board would be required to upgrade its website and publish a poster setting out the rights of employees and obligations of employers under the code.
  • Establishing a public consultation process to consider further review of labor relations legislation every five years.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

The Debate on Union Certification

One of the hot-button issues in the effort to update the code is how to proceed with union certification in the province. A union certification represents the end of an employer's direct relationship with its employees and the start of a collective bargaining relationship in which the union is the voice of employees.

Until 1984, British Columbia dealt with union certifications by card check, when a majority of employees sign authorization forms stating they wish to be represented by a union. Then, the province's Liberal government—the party in power at the time—changed to a secret-ballot process.

The majority of the review panel has endorsed retaining a secret-ballot vote under the code. They also recommend that the vote be cast within five business days, not counting weekends and statutory holidays, to reduce or eliminate an employer's ability to improperly influence a vote's outcome. 

Presently, under the code, there is a 10-day period for holding the vote.

A minority of the review panel, including Banister, has recommended the elimination of the secret-ballot requirement in favor of a card-check system.

"Certification by card check is the Canadian norm," Banister explained. "Card-check certification remains the single most effective mechanism to avoid unlawful employer interference and to ensure employee choice. Card-check certification should be restored."

Rob Sider, an attorney with Lawson Lundell LLP in Vancouver, said the code's amendments are not available at press time. He projected that British Columbia's government will announce proposed Labor Relations Code amendments by the end of April.

Catherine Skrzypinski is a freelance writer in Vancouver, British Columbia.

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