In a year like no other, there have been steady developments in the landscape of employment & labour and human rights law. Some of these developments were long anticipated, including the effect of termination on bonus compensation and the legality of mandatory arbitration clauses in the gig economy. Perhaps the most interesting cases, however, are […]read more
Changes to the Labour Relations Act in Newfoundland and Labrador
The Government of Newfoundland and Labrador has made amendments to the Labour Relations Act (the “LRA”) and the Public Service Collective Bargaining Act (the “PSCBA”). Bill 37 amended the LRA and Bill 38 amended the PSCBA. Both amendments mark substantive changes to labour relations in the Province and came into force June 27, 2012. The effects of the changes most notably alter the Certification Process, Collective Bargaining/First Collective Agreements, and the scope for use of Special Project Orders (“SPO”).
Under the amendments, certification of a union becomes automatic when 65 percent of employees sign union membership cards. When at least 40 percent, but less than 65 percent, of employees sign union cards, a certification vote by secret ballot will still be required. The elimination of the secret ballot when more than 65 percent of employees have signed union cards effectively removes any ability by an employer to lawfully communicate with its employees about the certification application when the 65 percent threshold is reached. Under the previous version of the LRA, once 40 percent of eligible employees signed union cards and the union filed a certification application, the employer had the ability to lawfully communicate with its employees during the time period between the certification application being filed with the Labour Relations Board (the “Board”) and the certification vote taking place, which was generally a five day period. Also noteworthy is that the 65 percent threshold for automatic certification does not apply to the process of decertification. A secret ballot is still required when 40 percent or more employees in a bargaining unit support an application for revocation.
The amendments codify an employer’s right to communicate directly with employees about certification and unionization without it being deemed an unfair labour practice provided there is no coercion, intimidation, threats, promises, or undue influence. However, in light of the amendment resulting in automatic certification once 65 percent of employees sign union cards, the statutory right to free speech by employers will only be relevant in those situations when 40 percent or more, but less than 65 percent, of employees have signed union cards.
Collective Bargaining/First Collective Agreements
Employers, as well as unions negotiating with employer organizations, now have a right to request a vote on the most recent offer received by the other party in respect of all outstanding matters remaining in dispute. This right may only be exercised once by each party. If accepted by a majority of the bargaining unit or employers’ organization, as the case may be, the parties will be bound by that most recent offer and it will be incorporated into the collective agreement. This particular amendment to the LRA and to the PBSCA will come into force on a day to be proclaimed by the Lieutenant-Governor in Council.
The amendments to the LRA include extensive revisions to the provision relating to first collective agreements. Previously, section 81 of the LRA provided that the Minister could order the Board to inquire into a dispute and, where the Board considered it advisable, to settle the terms and conditions of the first collective agreement. The amendments now provide for greater ability by the Minister and the Board to become involved in settling the terms and conditions of a first collective agreement. Pursuant to the amendments, when the parties have failed to conclude a first collective agreement within 60 days after the notice to bargain has been served, the Minister shall appoint a mediator to assist the parties. When the parties fail to conclude a first collective agreement within 30 days following the appointment of the mediator, either party may make application to the Board to inquire into the dispute and, if the Board considers it advisable, it can settle the terms and conditions of the first collective agreement. Previously, under the LRA, the Board would only impose a first collective agreement when one of the parties failed to attend at bargaining or alternatively, failed to bargain in good faith. It will be interesting to see whether the Board will continue to take a “hands-off” approach when the parties fail to conclude a first collective agreement within the applicable time frame, but are continuing to negotiate in good faith.
Special Project Orders
Taking into account the James Oakley Report and the Report of the Voisey’s Bay Industrial Inquiry Commission, the scope of SPOs has been expanded. The rarely invoked SPO designation is generally reserved for mega-projects. The amendments in this area expand the number of projects that qualify for a SPO by decreasing the required project length from three years to two years and by removing the requirement of a geographic site from the definition of SPO. There is an increased flexibility to prescribe SPOs by scope of work and there is now no restriction on SPOs overlapping in time and/or geography. Once a SPO has been prescribed, employees who work under the collective agreement at the special project site are not able to vote in determining whether a trade union will be certified. The amendments also contain increased restrictions on employees refusing to perform work on special projects. It is expected that employers may seek out the SPO designation more frequently and with greater success.