Bill 148

Bill 148, the Fair Workplaces, Better Jobs Act, 2017 became law on November 27, 2017. As we have written in the special Bill 148 edition of our newsletter, In the Know, Bill 148 amends the Employment Standards Act, 2000 (the “ESA”), the Labour Relations Act, 1995 (the “LRA”) and the Occupational Health and Safety Act (the “OHSA”).

Below we detail the Bill 148-enacted changes to the LRA that came into force on January 1, 2018. For the changes to the OHSA and the ESA that have come into force to date, our earlier blog.

Changes to the LRA that came into force on January 1, 2018

  • Employee Lists
    • Unions can apply to the Ontario Labour Relations Board (“OLRB”) for orders directing employers to provide employee lists where the union has at least 20% of employees as union members
      • This only applies to workplaces where no union has been certified
    • Unions must provide a description of the proposed bargaining unit and evidence of membership to the OLRB
      • The proposed bargaining unit in the application does not need to be the same as the proposed bargaining unit used to obtain the employee list
    • The employer has 2 days to provide the OLRB with notice of disagreement with the proposed unit or the number of employees in the proposed unit
      • Where there is no disagreement and 20% or more of individuals in the unit appear to be members of the union, the OLRB will direct the employer to provide a list of employees
    • The employer is required to disclose:
      • Employee names;
      • Employees’ phone numbers; and
      • Employees’ email addresses
    • The OLRB has discretion to order employers to also disclose:
      • Other information relating to the employee, including the employee’s job title and business address; and
      • Any other means of contact that the employee has provided to the employer, other than a home address
  • Remedial Certification
    • Remedial certification is the automatic remedy where an employer contravenes the LRA such that the union could not obtain 40%, or the representation vote likely did not reflect employees’ true wishes
  • Bargaining Unit Structure Review
    • The OLRB may consolidate bargaining units where the units are represented by the same union
    • The OLRB may mandate that existing collective agreements apply with or without modification to the newly-created bargaining unit
    • The employer and a trade union or council of trade unions that represents employees of the employer in multiple bargaining units may agree in writing to review the structure of bargaining units, at any time
    • With the consent of the OLRB, the parties may agree to consolidate bargaining units, amend the description of a bargaining unit, and make various other corresponding changes to collective agreements
  • Card-Based Certification for Certain Industries
    • Card-based certification is available for employers operating in the following industries:
      • Building services;
      • Home care and community services; and
      • Temporary help agency
    • The government may regulate definitions of these specified industries and has the power to exempt certain employers from card-based certification
    • Under the card-based process, the OLRB will do one of the following:
      • Dismiss applications where less than 40% of employees in the bargaining unit were union members on the application date;
      • Require a vote where more than 40%, but less than 55% of employees in the unit were union members on application date; or
      • Certify a union or order a representation vote if more than 55% percent of employees in bargaining unit were union members on application date
  • First Collective Agreement Arbitration
    • Parties can apply to have a first collective agreement mediator appointed in every case
    • The applicant can submit a list of issues in dispute and its positions
    • The other party has 5 days to respond with its own list and positions
    • Within 7 days of receiving the application, the Minister will appoint a first contract mediator
    • For 45 days after the mediator is appointed:
      • Employees cannot strike;
      • The employer cannot lock-out employees; and
      • The OLRB will not deal with decertification and displacement applications filed
    • If a collective agreement has not been reached on or after the 45th day, either party may apply for an OLRB-managed mediation process
      • Within 30 days of receipt of the application, the OLRB can either:
        • Order further mediation;
        • Dismiss the application; or
        • Direct settlement of a first collective agreement by mediation-arbitration
    • The OLRB will direct first collective agreement be settled by mediation-arbitration unless:
      • Applicant has not bargained in good faith; or
      • Uncompromising bargaining position without reasonable justification
  • Successor Rights
    • A sale of business is deemed to have occurred if an employer ceases to provide services at a principal place of work and substantially similar services are subsequently provided at the place by another employer
    • The provisions apply to service provided directly or indirectly by or to a building owner or manager that are related to the premises (e.g., building cleaning services, food services and security services)
  • Reinstatement of Employees
    • Employees are required to be reinstated on terms agreed to by the employer and the union
  • Discharge and Discipline During Bargaining Periods
    • Employers need “just cause” to dismiss or discipline employees from the date of certification until a new collective agreement is implemented, including during a lawful strike or lockout

 

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.