Changes to the Labour Relations Code ("LRC")07-Jul-20
Hearings by the Labour Board (“Board”)
1. The Board may hear more cases with the Chair or a Vice Chair sitting alone rather than a full panel of three. Such cases now include:
a. reviews of grievance arbitration awards;
b. certain determination applications under the LRC (e.g., whether someone is an employee, whether an organization is a trade union, the membership status of a person in a trade union, whether a bargaining unit is appropriate, and whether someone is included in a bargaining unit);
c. compelling witness attendance and production of documents;
d. questions relating to strike or lockout votes; and
e. if the Chair is of the opinion it is necessary due to an emergency.
2. The power of the Board to summarily reject applications is expanded for cases where an application is “filed with improper motives” or is otherwise an abuse of process.
3. In what will be a surprise to some, the Government has left the power of remedial certification in the LRC. However, it has tightened the conditions required to obtain remedial certification.
First, there must be a determination by the Board that a representation vote does not reflect the true wishes of the employees in the unit because of a prohibited practice.
Second, automatic certification can be issued “only if no other remedy or remedies would be sufficient to counteract the effects of the prohibited practice.”
In addition, the Board may refuse to certify on the same conditions in cases of prohibited practices by a union.
4. Consistent with a general legislative trend towards greater financial disclosure of public bodies and corporations, there are new requirements upon unions to provide members with an annual financial statement free of charge and within a reasonable time. Details of the financial statement will be set out in regulations. The regulations may also set out different classes of trade unions in respect to these obligations. In order to enforce the new rights, a member has a right of complaint to the Board for any failure by a union to comply with the requirements.
Certification and Revocation Procedures
5. The procedure for certification and revocation applications has been largely returned to what existed before changes made by the previous Government in 2017. Among other difficulties, the current procedure frequently creates practical problems for the Board and parties in that applications must be fully determined no later than 20 or 25 working days after the application is filed, with a limited power of the Chair to extend the time limit. This time limit is arbitrary, inflexible, and frequently insufficient to properly address applications.
The new procedure removes these time limits and returns to the requirement that the Board must complete its inquiries and consideration “as soon as possible.” However, one new time limit is that the Board must make its final decision on an application no later than 6 months after the application is filed.
Collective Agreement Renewal
6. For many years, parties to a collective agreement had the ability to enter an early renewal of the collective agreement before the expiry date. This may arise in various situations, for example when economic conditions have changed, or a new project is beginning that necessitate changes to terms and conditions of employment. Early renewals could be done in a way that changed the open period for revocation applications or competing certification applications. In a Board decision in 2009, this practice was greatly restricted. In recognition that other provinces allow early renewals and changes to the duration of collective agreements, the new legislation will allow an early renewal to close an open period under certain conditions, including that:
a. employees must have been informed by their bargaining agent that no applications for certification or revocation will be permitted if the employees vote to enter into the new collective agreement, and
b. employees then vote to enter the new collective agreement.
The Board has the power to resolve any disputes over these new provisions, with time limits on when such applications can be brought.
Effect of Raids
7. When a trade union successfully raids another trade union’s bargaining rights, the LRC allows the new union to terminate the existing collective agreement upon 2 months’ notice. In construction, the termination can be automatic if the raiding union is subject to a registration collective agreement. This can pose significant financial difficulties to construction employers who are engaged in projects based on the expected terms of a particular collective agreement. In recognition of this potential impact, and similar to legislation in BC, the new legislation will not allow the early termination of construction collective agreements in cases of union raids.
Time Bar to Repeat Certification Applications
8. When a certification or revocation application is refused or withdrawn, the same or substantially the same application cannot be brought within 90 days without the consent of the Board. This restriction is retained in the new legislation, but if a trade union also used coercion, intimidation, threats, promises, or undue influence to encourage or discourage union membership or activity relating to the certification application, then the 90-day time bar is extended to 6 months.
First Contract Arbitration
9. Another surprise to some will be retention by the Government of first-contract arbitration. Governments everywhere, including Alberta, have been moving away from arbitration provisions to determine collective agreements. This has been a recent trend in respect to public sector bargaining, and the new legislation removes interest arbitration in respect to post-secondary institutions. However, the new legislation does restrict first contract arbitration from what currently exists by requiring the following:
a. the Board must be satisfied that arbitration is necessary;
b. the employer or trade union, as the case may be, must have committed an unfair labour practice; and
c. no other remedy or remedies would be sufficient to counteract the effects of the unfair labour practice.
The intent is that first contract arbitration is to be a remedy of last resort.
10. The enhanced-mediation process introduced in recent years by the Board is now specifically referenced as an alternative to mediation under s. 65 of the LRC as a precondition to holding a strike or lockout vote. This change simply clarifies that enhanced mediation satisfies the mediation requirement in order to get a strike or lockout vote.
11. There are new restrictions on picketing. Picketing is supposed to be peaceful communication, and it is protected under the Canadian Charter of Rights and Freedoms as a form of expression. Unfortunately, far too often picketing is simply used as a means to harass, obstruct, and delay, regardless of whether there is any expressive element. Consistent with many court decisions, the new legislation clearly distinguishes between permissible expression and unacceptable obstruction and states that obstructing or impeding a person who wishes to cross a picket line is a wrongful act.
The LRC currently allows limited secondary picketing at locations that are not a normal place of employment for affected workers in cases where the secondary locations are used by an affected employer to operate during the strike or lockout. The new legislation prohibits picketing at these secondary locations unless permitted by a Board order, upon application.
The new legislation makes it easier to enforce Board orders in respect to illegal strikes or lockouts and illegal picketing. Such orders and interim orders will now, if determined by the Board or upon request, be immediately filed with the Court of Queen’s Bench as an order of the Court. In such cases, violation of these orders would immediately become orders of the Court subject to quicker and more severe consequences for failure to comply. The Board’s previous practice was not to allow its orders to be filed with the Court until it had determined that there had been non-compliance, which delayed the enforcement process.
Remedies for Illegal Strikes and Lockouts
12. The ability for the Board to suspend the deduction and remittance of union dues in cases of illegal strikes has been re-established in the LRC. The suspension may continue for one to 6 months. This is an important potential financial consequence for illegal strike activity that parties cannot contract out of.
13. In the case of an illegal lockout, the new legislation would allow an order for an employer to pay the union dues, assessments, and other fees payable by the employees to the union.
14. The Government has introduced a requirement for workers to opt-in to the payment of union dues unrelated to core union activities. Union dues and deduction of dues by employers are still mandatory if requested, but only for core union activities related to the representation of employees, such as the negotiation and administration of collective agreements. Workers are not required to support non-core activities, such as promoting political, charitable, or social causes, without specifically opting in.
15. The Public Service Employee Relations Act, Public Education Collective Bargaining Act, Post-secondary Learning Act, and Police Officer Collective Bargaining Act are also being amended in respect to the treatment of union dues.
16. A third surprise for some will be the retention of a reverse onus upon employers in cases of unfair labour practice applications. Concern has been expressed how this makes employers “guilty until proven innocent.” However, the reverse onus will be limited to cases involving employee terminations only.
In addition, a reverse onus will now apply to certain unfair labour practice applications against unions. As such, while not removing the reverse onus, these changes will add some balance to its application.
17. The practice of unions punishing members who work for employers without a relationship with that union is viewed by workers, employers, and some unions as unjust. The new legislation provides greater protection to workers by making it more difficult for unions to punish them just for seeking to work and feed their families.
The LRC currently requires that a union be able to provide “reasonable alternate employment” for workers before it can punish them for working “non-union.” The new legislation will add a requirement that a worker cannot be punished if the employment taken does not threaten the union’s legitimate interests.
In addition, the Board must consider a number of factors in assessing whether a union can provide “reasonable alternate employment,” including:
a. whether the proposed employment is comparable to the current or former employment in respect of the primary functions and responsibilities of the position, duration of the position, and the wages and benefits offered;
b. that a bargaining unit position is not reasonable alternate employment in respect of a managerial position; and
c. that reasonable alternate employment must be in the same industry as the current or former employment.
18. The power of an arbitrator to relieve against grievance time limits, introduced by the last Government, will be removed. Also to be removed is the provision of the LRC requiring arbitrators to make decisions in accordance with the principles of Canadian labour arbitration. Although arbitrators do generally act in accordance with the principles of Canadian labour arbitration, there are some concepts that are unique to Alberta, and the language in question was thought to infringe upon unique Alberta approaches.
Review of Arbitration Awards
19. The new legislation will repeal the legislated standard for Board review of grievance arbitration decisions. The existing LRC requires an applicant to show it was denied a fair hearing or the award is unreasonable based on a specific definition. The removal of this standard means the Board will need to determine what standard is to apply in the future.
The Board will also have the ability now to award costs in cases of grievance arbitration review, similar to what used to be the case in judicial review applications before the courts. Time will tell how the Board decides to deal with this costs power.
Duty of Fair Representation Complaints
20. The new legislation increases the Board’s power to summarily dismiss duty of fair representation complaints against unions where the worker complainant has refused to accept a settlement that is fair and reasonable.
21. There are major changes in respect to construction labour relations, which are contained in Part 3 of the LRC:
a. The new LRC makes clear which provisions relate to building trades unions only and which relate to all unions in construction.
b. After many years of debate, non-registration trade unions may organize all-employee bargaining units in construction and maintenance, as is common in construction in BC and Saskatchewan and in most other industries. There are rules and restrictions on how this will apply.
c. The construction common employer provisions are relocated within Part 3 to make clear they apply to all unions engaged in construction, but the provisions are otherwise unchanged.
d. Part 3 Division 8 of the LRC relates to Major Projects. This Division has been re-vamped to make it more accessible and useful in protecting major projects from labour instability, and less vulnerable to legal attack as was seen in some previous cases. Division 8 now limits labour disputes relating to maintenance work on a major project. The Division makes clear that there can be more than one collective agreement in respect to a major project, and trade unions can only be bound by a collective agreement they have entered. Since Division 8 agreements cannot be subject to strike or lockout, the Division will now include an arbitration provision.
e. The Building Trades of Alberta now has the ability to negotiate project agreements (separate from Division 8 major project agreements) on a multi-trade basis outside of construction registration agreements.
f. One change that was debated was whether s. 175.1 of the LRC, which binds affiliates of building trades unions to the terms of their registration collective agreements, should be removed. It is not removed and will continue.
Post-Secondary Interest Arbitration
22. The new legislation nullifies interest arbitration provisions in a collective agreement between a public post-secondary institution and an academic staff association and terminates any interest arbitration processes.
23. A minor change has been made to the preamble of the LRC – an added reference to the expedient resolution of matters relating to terms and conditions of employment as a purpose of the legislation.
24. Another change in the LRC is the removal of references to nurse practitioners from the LRC. Nurse practitioners were excluded from the definition of “employee” to whom the LRC applies, which the Board had found was unconstitutional.
25. As with the ESC, the new LRC will add a regulation-making authority in respect to COVID-19 issues.
Coming into Force
26. The new LRC comes into force when the Act receives Royal Assent, and for certain sections upon proclamation.
For a summary of the Employment Standards Code changes, click here.