The government of British Columbia signed a law that took effect on June 2, 2022, and gave workers in the Canadian province an easier path to form a union.
The Labor Relations Code Amendment Act 2022 changed the union certification process in British Columbia by reintroducing a card-check system, said Kris Noonan, an attorney with Stikeman Elliott in Calgary, Alberta. Certification is the process of workers unionizing their workplace, with the goal of receiving recognition from the labor board that the union has the authority to collectively represent those workers.
“These changes recognize the importance of ensuring that the workers across British Columbia have a say in their working conditions and can exercise their constitutional right to make a choice about union representation,” said British Columbia Minister of Labor Harry Bains in April 2022.
The bill will ensure workers can exercise their right to choose to have union representation without interference from their employer, Bains added.
The British Columbia Labor Relations Board noted the amendments would give two possible paths to union certification. 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. No further vote is required. If between 45 percent and 55 percent of employees sign union membership cards, a second step consisting of a secret-ballot vote is required for certification. The vote would then be conducted within five business days of the certification application date.
The province has alternated several times between the card-check and secret-ballot vote certification systems, according to the British Columbia government. Between 1973 and 1984 and between 1993 and 2001, when the single-step certification system was in place, British Columbia had higher union certification rates.
Labor Unions in Canada
Nearly 30 percent of Canadian workers in the private sector belong to unions, including nurses, teachers and journalists, as well as more traditional unionized occupations like retail store clerks, manufacturing workers, miners, electricians and construction trades workers, reported the United Food and Commercial Workers International Union Canada.
Approximately 75 percent of public sector workers in Canada are unionized, according to Statistics Canada.
Quebec, New Brunswick and Prince Edward Island, as well as federally regulated employers, also have card-check union certification for assessing employee support for collective bargaining, said David J. Doorey, associate professor of labor and employment law at York University in Toronto.
Pros and Cons of Card-Check Certification
Card-check certification is favorable for unions because it makes it easier to achieve certification, noted Jennifer Fantini, an attorney with Borden Ladner Gervais in Vancouver, British Columbia.
“From a union’s perspective, the card-check process is easier by allowing them to achieve representation rights quicker—and often without any advance warning to the employer—and at a lower cost,” Noonan said. “From an employer’s perspective, the card-check process removes the ability for employers to try and persuade workers from voting against unionization after a certification application has been filed.”
Evidence suggests that unions do better in union certification applications under a one-step model rather than a two-step model for testing employee wishes, Doorey said.
“Under a two-step model, the employer is guaranteed an opportunity to campaign against collective bargaining, whereas under the one-step card-check model—in some cases involving smaller workplaces—a union might sign up a majority of employees quickly and before the employer even learns about the organizing campaign,” Doorey added.
Card-check systems have been criticized for creating an opportunity for employees to be coerced into signing union cards against their will, without the safeguards of democratic choice, and free of influence from the employer, the union, and co-workers, Noonan stated.
Impact on British Columbia’s Construction Industry
Employees in British Columbia’s construction sector now can change unions every year, Noonan noted. The previous rules prevented construction employees from changing unions for three years, which is often longer than most construction projects.
“Employers in the construction industry may experience more disruption as a result of this change, as their workforce may be targeted by rival unions in a raid—where a union takes over representation rights from an existing union,” he added.
Bottom Line for Employers and HR
Labor laws in Canada prevent employers and HR professionals from interfering in the formation of a union, Doorey noted.
If employers discover an organizing campaign in their workplace, they should seek legal advice on appropriate responses, Noonan advised. Employers should also train their front-line managers and HR professionals on the appropriate response to a union drive. Messaging to employees should be consistent, controlled and approved by management.
“Nonunion employers must be particularly vigilant now and should take any sign of union organizing activity seriously, as the time frames and process for certification are much shorter and easier,” Fantini said.
Catherine Skrzypinski is a freelance writer based in Vancouver, British Columbia.