Union and Collective Agreement: The Best “Insurance Policy” Against Wrongful Dismissal

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In non-unionized employment, an employer has the unilateral authority to terminate an employee’s employment for “cause” or for no cause at all! If no cause exists, the employer may terminate the employment relationship by providing “reasonable notice” or pay in lieu thereof that may be as little as the minimum termination pay under employment standards legislation, which may be as little as 0-1 week up to 8 weeks or at common law up to a maximum 24 months damages. A wrongfully dismissed employee’s only recourse is to sue their former employer for damages; the employee does not have recourse to reinstatement like unionized employees who have a collective agreement.

If you and your co-workers want to join an existing union, we can help you get the process started and provide guidance to you. While the aims and objectives of all trade unions should be to “organize the unorganized,” not all trade union organizations are equally effective at representing their members well. We know those that do, as well as those that should be avoided.

We have experience with successfully obtaining recognition of trade unions Federally as well as in the Provinces of British Columbia, Alberta, Saskatchewan, Manitoba, and Nova Scotia.

Alternatively, if you and your co-workers want to establish their own employee association or “home-grown” trade union, we can assist you with this too. Collectively, we have decades of experience assisting employees to commence successful union organizing drives and defending against employer anti-union campaigns.

Organizing a union is not a path easily travelled by employees on their own without the advice of a competent, experienced labour lawyer and/or union organizer. There are many potential pitfalls and legal loopholes. At Labour Rights Law, we have devised a successful prescribed path to assist employees to organize and join a union and/or employee association. Employees interested in organizing a union or employee association should contact us for legal advice even before they have their initial meeting to make a decision on whether or not to proceed. The Labour Relations Board’s employees cannot and will not give legal advice to employees interested in forming a union or employee association.

While we set out the minimum statutory requirements below, this rudimentary information is not intended to be a substitute for necessary and strategic legal advice about how to successfully organize and join a trade union or employee association. Labour Relations Boards are particularly careful and scrupulous when considering certification applications for new, inexperienced “home-grown” unions, nevertheless, we can help.

In order to make an application for certification in BC, you will need the support of at least 45% of your coworkers who must personally sign an application containing the express terms prescribed by the labour relations board’s regulations. For example, see Section 3 (or Section 3.1 for the construction industry) of by BC Labour Relations Regulation, BC Reg. 79/2020. Membership applications must be signed and dated within 6 months prior to the application for certification.

Before you commence an organizing drive there are several legal requirements that must be considered such as whether a local union charter is required or, alternatively, whether a draft constitution and bylaws are required to be drafted and adopted at an initial founding meeting. Fear not, in either case, we can help!

But even before you start soliciting support from 45% of your co-workers, you need to seek advice from an experienced union organizer or a labour lawyer to define the scope of the bargaining unit. Defining the bargaining unit too broadly, too narrowly, or incorrectly could be fatal to your certification application. Aside from the determination as to which employees should be included or excluded from the bargaining unit, the bargaining unit description is a significant battleground upon which employers can successfully contest a certification application. Manipulating the scope of the bargaining unit to exclude certain employees to achieve the minimum 45% threshold of employee support is not a wise strategy and is often unsuccessful. The certification process is even more complicated if there is already an existing certification for part of the employer’s organization or if the application is to displace an existing certified trade union, in either case, strategic legal advice is absolutely necessary before the organizing campaign begins.

In BC, an application for certification under Section 18 of the BC Labour Relations Code, RSBC 1996, c 244, must be in a form satisfactory to the Labour Relations Board. Like the BC Labour Relations Board, most labour relations boards across Canada have prescribed forms that can be submitted to them along with confidential evidence of membership support. Confidential membership evidence is not disclosed to the employer by either the Labour Board or the party applying for certification!

As soon as the Labour Board receives the certification application, the employer will be advised to post a notice to employees that the application has been made, along with a date for a hearing. As soon as the certification application is filed, the employer is prohibited from making any changes to the terms and conditions of employment for employees without the Labour Board’s written consent. For example, see Section 32 of the BC Labour Relations Code.

Next, the Labour Board will appoint a Board Officer to conduct an investigation and prepare a report to be disclosed to the applicant, the employer and the Board Member hearing the application. The Board Officer’s report will outline any potential deficiencies with the application e.g., whether the minimum threshold membership evidence has been satisfied, including a recommendation about the bargaining unit description and the scope of the bargaining unit applied for. Any objections to the Board Officer’s Report must be researched and prepared prior to the Board Hearing.

The employer may mount an anti-union campaign to dissuade employees from joining a trade union as soon as the employer learns that an organizing drive is afoot. As a result, confidentiality and secrecy of the employee’s desires to form a trade union should be maintained as much as possible during the organizing drive. However, even if the organizing drive is kept confidential by employees, the employer is sure to mount an anti-union campaign as soon as the employer is notified by the Labour Board that a certification application has been made.

If all of the requirements have been met by the applicant, the Board Member conducting the Board Hearing will direct a vote to be conducted by secret ballot. The applicant and the employer will be asked to name a scrutineer to supervise the conduct of the vote. Until the single-step certification process comes into effect later this year, in BC a secret ballot vote must be conducted if the applicant submits membership evidence of less than 55% in the bargaining unit. If membership evidence is more than 45%, but less than 55%, then the applicant will be successful if more than 50%+1 of the employees in the proposed bargaining unit vote in favour of certification.

Once the bargaining unit is successfully organized, a bargaining committee must be established to prepare a proposal for collective bargaining, followed by notice to the employer to commence collective bargaining. Here again, we can assist by providing strategic labour relations advice.

Certification applications can be a complicated minefield to cross and are certainly not “Do It Yourself” projects, because a misstep can place the employment of your peers in jeopardy. Do not run that risk, we offer legal consultation to assist employees interested in forming or joining a union or employee association.

DISCLAIMER: The content of this article, and this website generally, is not intended as legal advice and cannot be relied upon as legal advice.  To provide legal advice on your problem, a lawyer must first understand your specific situation.

To book a consultation, please give us a call toll-free 1 (877) 708-8350 or locally 604-245-3169. You can also book a consultation online here.

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