On June 2, British Columbia’s (BC’s) Bill 10—2022: Labor Relations Code Amendment Act, 2022, received Royal Assent and took effect. Under the new amendments, the BC Labor Relations Code allows single-step certification of unions when the union can demonstrate support of 55 percent or more of the bargaining unit.
This is not the first time BC has operated under a single-step certification regime. A two-step certification process has been in place in BC since 2001, but historically, the province has alternated between single and two-step certification processes. During periods when single-step certification has been in place, union certification rates in BC have been higher. Single-step certification simplifies the process, making it easier for unions to become certified.
Once a union is certified to represent a group of employees (the bargaining unit), the union becomes the bargaining unit’s exclusive bargaining agent. The union has sole authority to negotiate with the employer and agree to the terms and conditions of employment to be set out in a collective agreement. An employer cannot refuse to recognize a union once it has become certified to represent its employees. Once a union is certified, the terms and conditions of a bargaining unit’s employment cannot change, until the sooner of: (1) a collective agreement is reached; or (2) until 12 months after the date of certification—although employers maintain the right to suspend, transfer, lay off, discharge or otherwise discipline an employee for cause.
The New Single-Step Certification Process
Under the new regime:
If 55 percent or more of employees in a workplace indicate their intent to unionize by signing union membership cards, a union will be certified and no further vote is required.
If between 45 percent and 55 percent of employees sign union membership cards, a second step consisting of a representation (secret ballot) vote is required and a majority must vote in favor of representation by the union for certification.
Previous Two-Step Certification Process
Under the previous two-step certification process, a union was not certified until:
- Membership application: At least 45 percent of employees in the proposed bargaining unit indicated their support for certification by signing union membership cards; and
- Representation (secret ballot) vote: the majority (50 percent +1) of employees in the proposed bargaining unit restated their intention to unionize by secret ballot vote in favor of representation by the union.
Application for Certification—Membership Evidence and Appropriate Bargaining Unit
In both two-step and single-step certification processes, to apply for certification from the Labor Relations Board, a union must demonstrate that support from the employees in the proposed bargaining unit is valid and that the bargaining unit is appropriate.
In BC, valid membership evidence (union membership in good standing) consists, at minimum, of:
- A membership card signed and dated by the employee at the time of signature; and
- Within six months of the application for certification,
+The membership card must have been signed, or
+Membership dues paid to maintain active membership.
The amendments clarify that the board has the power to determine whether a person is a member in good standing of a union without regard to the constitution and bylaws of the union.
To determine if the proposed bargaining unit is appropriate for collective bargaining, the board will examine records and may hold hearings or make other inquiries it considers necessary to determine the merits of certification, and will specify any evidence it requires in support of a certification application. The board may also include additional employees or exclude employees from the bargaining unit before certification.
Additional Amendments Affecting the Construction Industry
The new amendments in Bill 10 also allow unions in the construction sector to apply for certification in July and August of each year if they have an appropriate bargaining unit and membership evidence. Essentially, workers in the construction industry may change their union annually, between July and August, if they are unhappy with their union representation. The previous provisions of the code restricted workers in the construction industry from changing unions for a period of three years from the date of the initial collective agreement.
Union certification in BC is now a more streamlined process. A representation vote for certification is no longer required in certain circumstances, and workers in the construction industry have more opportunity to change unions. We expect to see an increase in union certification, given historical trends.
Abby Nann is an attorney with McCarthy Tétrault LLP in Vancouver, British Columbia, Canada. Reed D. Smith and Nico Rullman, law students, are clerking this summer with McCarthy Tétrault LLP in Vancouver. © 2022 McCarthy Tétrault LLP. All rights reserved. Reposted with permission of Lexology.