Written by John C. Batzel, John R. Gilmore and Matthew J. Macdonald
On March 13, 2017, the Alberta government announced that it intends to change provincial employment and labour laws to reflect "modern" times. As part of this "modernization", the Minister of Labour announced a consultation and review of Alberta’s Labour Relations Code. The consultation and review are focused and we expect legislation to be introduced within the current session of the Alberta Legislature.1
The changes contemplated by the Alberta government include:
- “processes used to let employees exercise their constitutional right to choose…union representation, in a timely and effective way”; and
- “options available for dispute resolutions in intractable disputes…[including] unresolved first contracts”.
These two references clearly indicate the province is considering introducing card-based union certification (Card Certification) and binding first contract arbitration (FCA) for provincially-regulated workplaces in Alberta. NDP governments in other provinces have implemented (or re-implemented) both policies upon being elected throughout Canada. These same policies have often been rescinded or modified upon the election of a government from a different political party.
Card Certification allows a union to obtain automatic certification with the Labour Relations Board upon a minimum percentage of union cards being signed by employees in a proposed bargaining unit (usually a subset of the total number of employees employed by the employer who share common interests). The threshold for automatic certification can vary, but historically ranges between 55 percent and 65 percent of employees in the proposed bargaining unit. Recently, the Federal Liberal government implemented Card Certification with a 50 percent threshold for federally regulated employees in Canada.
FCA commits an employer and a union that is certified to represent a group of employees to an arbitration process overseen by the Labour Relations Board, that will lead to a first collective agreement being imposed, should negotiations following certification be unsuccessful. This means that employers and unions will not have recourse to a lock-out or strike if there is an impasse in first contract negotiations. In other words, employers will have some form of a collective agreement imposed if necessary.
Potential Impact on Alberta Employers
If Card Certification and FCA are implemented, it will significantly change the labour relations landscape in Alberta. Currently, all provinces west of Quebec do not have Card Certification and require a mandatory vote among employees in the proposed bargaining unit prior to certification. Alberta would be the outlier in these provinces on this point.
Card Certification has been the subject of much labour relations and statistical analysis. For example, it has been argued that Card Certification may inflate the true level of support for a union among employees.2 When Ontario removed Card Certification, unions who applied for certification were 21.3 percent less likely to succeed under the new system (which required a vote among employees).3Another study found that in a survey of 160 certification votes (in jurisdictions where a vote is required), support for unionization dropped by more than 5 percent from initial support levels prior to the vote. In 81 other certification votes, support for unionization dropped by more than 15 percent from the initial level of support.4 In our view, the ability of employers to communicate with their employees between the application for certification and the certification vote is likely to have played a role in altering these levels of support, in many cases. Other studies have also shown that certification success rates are lower without Card Certification. In one study, the general impact of requiring mandatory votes as opposed to Card Certification was found to lower the likelihood of a successful certification by 20 percent for private sector employees in British Columbia and Ontario. In both provinces, certification success rates were 60 to 70 percent without Card Certification, and around 90 percent after Card Certification was introduced.5
It is not just certification success rates that increase under Card Certification, but also the number of unions attempting to be certified. In Ontario’s private sector, twice as many certification applications were made when Card Certification was in place. In British Columbia’s private sector, 50 percent more attempts at certification occurred under Card Certification.6
The change to FCA would mean that in addition to facing increased rates of union certification, provincially regulated employers in Alberta will be unable to avoid a first collective agreement being imposed on them, if they are unable to negotiate an acceptable agreement with the newly certified union.
Key Takeaways for Employers
Employers in Alberta who are concerned about the possibility of their workforce becoming unionized, and a collective agreement being imposed, should monitor these developments carefully. Although Card Certification and FCA may be rescinded if a different party is elected in the next provincial election, that will not enable employers who become certified in the meantime to avoid unionization or a collective agreement. Employers in these circumstances will be required to deal in good faith with the union and engage in collective bargaining. Employers should seek advice on how to protect their business interests while at the same time meeting their obligation not to engage in unfair labour practices under the Alberta Labour Relations Code.
Bennett Jones LLP is available to assist your company in this regard. For further information please contact John Batzel, John Gilmore or Matthew Macdonald.
1 The Minister’s mandate letter referenced that the review should not be “Full-Scale” as that would preclude introducing legislation “in the current session.”
2 Chris Riddell, “Using Social Science Research Methods to Evaluate the Efficacy of Union Certification Procedures”, Canadian Labour and Employment Law Journal, Vol. 12 at p. 315.
3 Sara Slinn, “An Empirical Analysis of the Effects of the Change from Card-Check to Mandatory Vote Certification”, Canadian Labour and Employment Law Journal, Vol. 11 at p. 280.
4 Colin Craig, Policy Brief: A Closer Look at Secret Ballot Union Certification Votes (2016). https://www.manningcentre.ca/sites/default/files/Policy%20Brief-A%20Closer%20Look%20at%20Secret%20Ballot%20Union%20Certification%20Votes.pdf (accessed 28 March 2017).
5 Michele Campolieti, Chris Riddell, and Sara Slinn, “Labour Law Reform and the Role of Delay in Union Organizing: Empirical Evidence from Canada”, Industrial and Labour Relations Review, Vol 61, No. 1 (Oct 2007) at pp. 33-34.
6 Ibid at p. 34.