Human rights and labour rights have a long history of intertwinement. The Labour Relations Act has an important purpose, to “promote orderly collective bargaining and there are a number of sections regulating the bargaining process, the content of collective agreements and the timing of strikes and lockouts.” The Act itself empowers the Labour Board to become involved in collective bargaining between unions and employers.
Considering this history and the significance of the original Act, it should be no surprise that MARL has been attentive to Bill 16: The Labour Relations Amendment Act, currently before the Legislative Assembly, which contains several significant, new provisions. It should be noted that the Labour Relations Amendment Act and its changes only apply to unionized, aspiring or formerly unionized employees.
Provisions that leave many of us asking:
- What are the changes and how do they compare to the earlier standard?
- Which provisions appear contentious, and which appear helpful?
- What does this mean for those who fall under the Act?
These are essential questions that first require an understanding of the Act itself. Below, the provisions are condensed for clarity while still retaining the original meaning.
The Labour Relations Amendment Act Provisions (Condensed)
- An employee who is on leave from their normal duties to hold a full-time public sector union executive position cannot have their salary or any other compensation from an employer.
- It would not be an unfair labour practice to terminate an employee because of strike-based misconduct where that misconduct would be just cause for dismissal.
- Before holding a certification vote, it is mandatory that the Manitoba Labour Board would determine whether the number of employees in the unit is representative.
- Votes for decertification or for displacement must be done by secret ballot within seven days. The decertification vote threshold has been changed from 50% to 40%.
- The appropriateness of a bargaining unit may be reviewed by the Board upon application by the employer or the union, but not within the last three months of a collective agreement.
- If there is a substantial change to a business that has been sold, the Board may declare that a successor employer may not acquire the predecessor’s employer’s rights and obligations on the sale of the business.
- The 90-day notice that an employer is required to give a bargaining unit as the result of a technological change from the employer and the arbitration process to deal with failure of notice are repealed.
- If agreement is not found during the first collective agreement and there is no precedence to arbitration, the Board must determine if the applicant bargained in good faith. The Board will strike the application if this is not done in good faith.
- The arbitration provisions for a subsequent collective agreement are repealed.
- The requirement to review provisions of the Act respecting the settlement of subsequent collective agreements is repealed.
- Annual financial statements of public sector unions must be given to members. The financial statements of a public sector union must be audited.
- Statements about compensation paid to employees making more than $75,000 annually must be provided within public sector unions.
- The Board must not provide for the release of names of employees who sign certification, decertification or termination processes.
- If an issue is brought to the board that is without merit, the Board may order the party who brought the issue forward to pay costs to both the Board and the other party.
- The Board’s ability to conduct votes outside the workplace, and electronically and by telephone is clarified.
The Changes and What They Mean for You
Decertification Vote 90-Day Notice and 40% Threshold for Decertification Vote
One of the most drastic changes within the Labour Relations Amendment Act is lowering the threshold to hold a decertification vote by only requiring a minority vote of 40% instead of 50%. The displacement vote is already beneath a majority vote requirement as well and has shifted from 45% to 40%. Complying with this percentage is not a democratic reflection of the employees' wishes and unfairly makes decertification easier. Decertification as defined by the Labour Relations Act Guide is “timeliness of applications, wishes of employees, fraud, abandonment, effect of cancellation of certification.” Displacement would refer to the application for certification by a trade union other than the one which is currently representing them as a bargaining agent.
In addition, the 90-day notice as the result of technological change is repealed. The reason this notice is in place is to ensure that any significant changes that impact employees or the collective agreement is addressed. Though it may seem more efficient to remove the requirement of a 90-day notice and subsequently ‘speed up’ the process of implementing technological changes, consider the complications of attempting negotiation upon terms that have changed this drastically. The notice keeps everyone informed, whereas this is likely to cause misunderstanding or delays. The 90-day notice protects employers and employees to ensure consistency and proper communication.
Accessibility and Privacy
One of the amendments encourages accessibility, the Board's ability to conduct votes electronically and by telephone would be clarified. Having this well established, it is evident that a vote is not invalid merely because it occurred electronically or by telephone. In conducting business in an increasingly virtual and remote sphere, this clarification is necessary within the time of a pandemic.
Other provisions relate to ensuring confidentiality, namely provision 11. The Board not providing the names of employees who sign to certify, decertify, or terminate ensures discretion. This as a measure is clearly needed to protect employees’ privacy regardless of which process, they have voted on. Privacy is also a priority regarding the use of secret ballots for decertification or displacement so long as this is accessible to all employees. Individuals with disabilities can at times have their privacy negatively impacted by secret ballot as a voting format when this is implemented in an inaccessible way. The exact execution of a secret ballot vote could depend upon each bargaining unit so it is difficult to say what the impacts on accessibility would be. Considering how most votes would likely be conducted virtually in the pandemic, it is possible this could be less of an issue than it would be in other circumstances though this could still vary per workplace.
Financial and Compensation Statements
As for provision 12, transparency would be a vital benefit of the auditing requirement to provide financial statements to members regardless of whether there is a request.
Additionally, to address compensation and financial statements of those making over $75,000 would also provide transparency and accountability, though may be more contentious due to privacy concerns. This mandate would likely resemble Sunshine Lists.
Bill 16: The Labour Relations Amendment Act provides changes to the Labour Relations Act with provisions of varying degrees of necessity and value. It is important to note that the amendment is not yet passed, so pay attention to upcoming developments and stay informed.
Pro Bono Law Student
Disclaimer: This document does not contain legal advice. Pro Bono Students Canada (PBSC) is a student organization. This document was prepared with the assistance of PBSC law student volunteers. PBSC students are not lawyers and they are not authorized to provide legal advice. This document contains general discussion of certain legal and related issues only. If you require legal advice, please consult with a lawyer.