Labour and Employment Law Blog

On April 6, 2022, Bill 10 – 2022 Labour Relations Code Amendment Act, 2022 (“Bill 10”) received its first reading. If passed, Bill 10 will introduce two significant amendments to the BC Labour Relations Code (the “Code”):

1. Return to a “card based” certification process – i.e. union certification without a vote.
2. Yearly opportunity for rival unions to conduct raids in the construction industry.

Certification Process

Current Two-Step Certification Process

At present, under the Code, there is a two-step process in British Columbia to certify a bargaining unit:

• Step One: The union seeking certification must get at least 45% of the employees in the proposed bargaining unit to sign union membership cards. Once the union has the required number of signed membership cards, they must file a certification application with the BC Labour Relations Board (the “Board”).
• Step Two: The Board is satisfied that the union has the required threshold support it must order a representation vote. The representation vote is held within five business days of the Board receiving the application, and is conducted by secret ballot. If a majority of the employees in the proposed bargaining unit vote in favour of the union, and the Board is satisfied that the proposed bargaining unit is appropriate, then the Board must certify the Union.

Proposed Certification Process

If Bill 10 passes, it will create two routes to certification once a union files a certification application. The route will depend on the level of support the union has within the proposed bargaining unit:

• Route One - Union Membership Cards Only:
  • If the union has signed union membership cards from at least 55% of the employees in the proposed bargaining unit, then assuming the proposed bargaining unit is appropriate, the Board will certify the union without a vote.
• Route Two – Secret Ballot Vote:
  • If the union has signed union membership cards from at least 45%, but less than 55%, of employees in the proposed bargaining unit, then the Board must order a representation vote. The representation vote must be held within five business days of the Board receiving the application, and is conducted by secret ballot. If a majority of the employees in the proposed bargain unit vote in favour of the union, and the Board is satisfied that the proposed bargaining unit is appropriate, then the Board must certify the Union.

Discussion

The return to a “card based” certification process was a key element of the BC NDP’s election campaign. One of the NDP’s reasons for the change is to make union membership and representation more accessible to employees where a clear majority of employees have indicated their desire to be represented by a union.

However, there are concerns that the removal of the secret ballot representation vote may result in employees being pressured – by the union or other employees – into signing a union membership card so that the union can obtain the necessary threshold support (i.e. 55% or more) in order to avoid a representation vote. Currently, the secret ballot representation vote acts as a safeguard, by allowing employees in the bargaining unit to express their true intentions regarding union membership in secret without fear of reprisal.

Construction Industry

If Bill 10 passes, it will make it much easier for rival unions to conduct raids and potentially replace existing unions in the construction industry.

At present, if a collective agreement is in force for a term of:

• 3 years or less, a union can only raid in July and August of the last year of the collective agreement;
• more than 3 years, a union can only raid in July and August of the third year of the collective agreement and each subsequent year thereafter.

Bill 10 proposes to remove the current three year raiding waiting period, and would allow unions to raid in July and August of each year of a collective agreement or any continuation.

This proposed amendment represents a significant departure from the current system. Given that many construction projects are multi-year projects, annual raiding by rival unions could result in instability in the construction industry.

We will continue to monitor Bill 10 and provide updates as it moves through the legislative process.