Why Alberta Unions are Celebrating the Fair and Family-Friendly Workplaces Act25-May-17
The defensively-named Fair and Family-Friendly Workplaces Act was introduced in the form of a government bill yesterday and will soon be passed into law. Why are the unions celebrating it? Here are some of the key reasons:
- If they can persuade 65% of employees to sign union membership cards (by hook or by crook), they can become the certified bargaining agent, avoiding the messy consequences arising from employees having sober second thoughts. They can also become certified if they happen to catch an employer at a time when 65% of its bargaining unit employees are members in good standing of a union even though that could have been mandated through prior employment and had nothing to do with their wishes for unionization of their current employer. There will be no more mandated secret ballot votes in those cases. This is NOT mainstream in Canada with only Quebec, Ontario and Nova Scotia (for construction only), New Brunswick and Prince Edward Island allowing card-check certifications. Newfoundland and Labrador had a provision like this for a brief time from 2012 to 2014, but got rid of it in favour of democracy. Card based certification is also contrary to the opinion of the International Labour Organization Committee of Experts which speaks of employee votes on these issues of exclusive representation.
- They can now launch unionization campaigns against employers that last 6 months, not just 90 days. Applications for membership and petition signatures will be valid for 6 months now - lots of time for employees to change their minds, but no secret ballot vote in many cases to communicate that.
- They can be content that revocation applications will only happen after a secret ballot vote.
- They are going to be able to get access orders allowing them access to private property and remote locations in order to try to unionize employees there. They will also be able to get access orders to meet with employees they represent.
- They are going to be able to gain certifications to represent farm and ranch workers. Some form of union recognition was mandated by recent Supreme Court of Canada decisions, but NOT full-blown Labour Relations Code collective bargaining rights as in this Bill.
- They will be able to quickly get a first collective agreement imposed on an employer if they are unsuccessful in bargaining in getting what they want. The dispute will be arbitrated if bargaining is unsuccessful in the eyes of the union and arbitration is, in the eyes of the Labour Relations Board “appropriate”. This is a much more relaxed standard than legislation in other provinces.
- They will be able to force all unionized employers to deduct and remit union dues for all employees in the bargaining unit by a simple request. This is called the Rand Formula. Up until now it has been open to negotiations between the union and the employer.
- They are not going to have to investigate to establish a basic case against an employer, but they are going to be able to file a speculative complaint with the Labour Relations Board (go on a fishing expedition) and force the employer to provide enough documentation to find a case against them.
- They may be able to get the Labour Relations Board to prohibit the employer from any kind of electioneering or “propaganda” opposing a certification.
- They will now be able to represent “dependent contractors”, in addition to “employees”. Some direct services providers have probably been “employees” for the purposes of the Code up to now, but the legislation substantially expands the category to a new group of workers. The definition ignores whether there is a contract of employment or furnishing of tools/equipment etc., but includes those in a “position of economic dependence” and “under an obligation to perform duties…which more closely resembles the relationship of an employee than that of an independent contractor.”
- They will now be able to picket allies of an employer i.e. any location “at which a third party assists the employer in furthering a lockout or in resisting a strike by performing services for the employer that it does not normally provide.” That was not clearly the case before now.
- They can get around the mandatory time limits for the filing and processing of grievances in collective agreements, which were usually obtained by employers in exchange for something, by going to the Labour Relations Board and getting extensions “if reasonable grounds” exist and “the other party would not be unduly prejudiced” by the extension. This is a broader power than some other jurisdictions. We expect that employers would only be “unduly prejudiced” if witnesses were no longer available or other strong reason existed on the facts. Mandatory time limits will therefore become potentially meaningless.
- They will not have to go to court to challenge an arbitration decision, but will instead be going to the Labour Relations Board for review of any arbitration award. Indeed a new appeal body will be replacing umpires who are currently provincial court judges as the employment standards appeal body. It might become the Labour Relations Board as well.
- They will not have the onus to prove that an employer terminated someone’s employment because of union activity or membership or involvement. All they have to do is allege it and the employer must prove its innocence. However, a complainant (including employers) continues to bear the onus to prove every allegation of union prohibited activity, even though those facts are often exclusively within a union’s knowledge.
- They may be able to significantly reduce the number of duty of fair representation complaints against them by setting up an approved internal appeal process.
- They will now be getting substantially more notice of any group termination of 50 or more in any four week period. The legislation will require that they will first receive notice ranging from 8 to 16 weeks ahead of time depending on the size of the layoff. The way the legislation is drafted, non-compliance will likely lead to damages for the affected employees. That is new.