labour relations code review · 2018-03-27 · “undue influence” on employees because “undue...

LABOUR RELATIONS CODE REVIEW

Submission to the Special Advisers to the

Minister of Labour

The Hospital Employees’ Union www.heu.org

March 2018

INTRODUCTION .................................................................................................................... 1

1) THE RIGHT TO JOIN A TRADE UNION CAN BE STRENGTHENED ......................................... 1

NARROW THE PERMISSIBLE RANGE OF “EMPLOYER SPEECH” ..................................................................... 1

PROMPT REPRESENTATION VOTE ......................................................................................................... 3

LIMIT MAIL BALLOTS .......................................................................................................................... 4

PROVIDE FOR CARD-BASED CERTIFICATION ............................................................................................. 4

2) AMEND THE CODE LIMIT TO “RAIDS” ............................................................................. 5

3) FACILITATE THE CONCLUSION OF FIRST COLLECTIVE AGREEMENTS ................................. 6

EXTEND THE STATUTORY “FREEZE” PERIOD ............................................................................................ 6

FIRST COLLECTIVE AGREEMENT INTEREST ARBITRATION ............................................................................. 7

4) ENHANCE THE ADJUSTMENT PLAN PROVISIONS OF THE CODE BY PROVIDING FOR THE

POSSIBILITY OF BINDING ADJUDICATION ............................................................................... 8

5) AMEND SECTION 2 OF THE CODE TO UNDERSCORE THE BOARD’S TRUE MANDATE ......... 9

6) CONSIDER AMENDMENTS PROVIDING FOR BROADER BASED BARGAINING THROUGH

MULTI-EMPLOYER SECTORAL CERTIFICATIONS ..................................................................... 10

7) AMEND THE CODE TO PROVIDE FOR SUCCESSORSHIP UPON CONTRACTING OUT IN THE

HEALTH SECTOR AND THE RESIDENTIAL LONG-TERM CARE SECTOR...................................... 11

CONCLUSION ....................................................................................................................... 15

Introduction

The Hospital Employees' Union is the oldest and largest health care union in British Columbia,

representing 49,000 members working for public, non-profit and private employers.

Since 1944, HEU has been a strong, vocal advocate for better working conditions for our

members and improved caring conditions for those who access health care services.

HEU members work in all areas of health care– acute care hospitals, residential care facilities,

community group homes, outpatient clinics and medical labs, community social services

agencies, and First Nations health agencies – providing both direct and non-direct care services.

The ability of health care and community social service workers to participate in the workforce,

join and maintain their membership in a union, and secure and maintain collective bargaining

rights, has been undermined over the past 16 years by government legislation designed to

facilitate de-unionization, privatization and contracting out.

These include changes to Labour Relations Code, along with new laws such as the Health and

Social Services Delivery Improvement Act and the Health Sector Partnerships Agreement Act.

HEU welcomes this opportunity to propose Code changes that will help bring balance back to

the labour laws that so profoundly impact our members’ working and caring conditions.

1) The right to join a trade union can be strengthened

There are several areas where the Code can be amended to give fuller and more robust effect to

the Section 4 and Charter right of every employee to be free to be a member of a trade union and

to participate in its lawful activities

Narrow the permissible range of “Employer Speech”

In the sensitive and critical period of time between the commencement of an organizing

campaign and a representation vote in particular, the question arises as to the appropriate or

permissible range of “employer speech” under Section 8 of the Code.

Amendments to Section 8 and Section 6(1) in the Labour Relations Code Amendment Act, 2002

(“Bill 42”) significantly expanded the ability of an employer to communicate anti-union views

and sentiments to employees.

Section 3 of Bill 42 provided that Section 8 would be amended to read as follows:

Subject to the regulations, a person has the freedom to express his or her views on any matter,

including matters relating to an employer, a trade union or the representation of employees by a

trade union, provided that the person does not use intimidation or coercion.

-2-

HEU submission on the Labour Relations Code review

March 2018

Section 8 previously provided that:

Nothing in this Code deprives a person of the freedom to communicate to an employee a

statement of fact or opinion reasonably held with respect to the employer’s business.

Section 2 of Bill 42 amended Section 6(1) to read:

Except as otherwise provided in section 8, an employer or a person acting on behalf of an

employer must not participate in or interfere with the formation, selection or administration of a

trade union or contribute financial or other support to it.

The former version of Section 6(1) said that:

An employer or a person acting on behalf of an employer must not participate in or interfere with

the formation, selection or administration of a trade union or contribute financial or other support

to it.

The Board held that Section 8, as amended, allows an employer to express “views” which reflect

personal bias and are uninformed and unreasonable; Convergys Customer Management, BCLRB

No. B62/2003, 90 CLRBR (2d) 238 (upheld on reconsideration in B111/2003, 90 CLRBR (2d)

287) at paragraph 112.

In Convergys, the Board also held that Section 8, as amended, allows an employer to exert

“undue influence” on employees because “undue influence” is a less overt, more subtle form of

pressure than “intimidation and coercion” and is therefore not prohibited by Section 8; paragraph

s 109, 110. As presently drafted, therefore, Section 8 prohibits little more than raw, blatant

threats and coarse displays of employer power.

In RMH Teleservices International Inc., BCLRB No. B188/2005, 114 CLRBR (2d) 128 (leave

for reconsideration of B345/2003, 100 CLRBR (2d) 95), the employer engaged in a political

style anti-union campaign, complete with frisbees, sand pails (containing popcorn, apparently),

chocolate bars and notepads, all bearing anti-union “messages”. The employer also held a

number of meetings with employees. The Board concluded that even if an employer’s approach

is accurately styled as an anti-union “campaign”, that is permissible under Section 8 as long as

there is no intimidation or coercion.

The amendments to Section 8 and Section 6(1) in 2002 drastically unleashed employer power in

the context of an organizing campaign and very much tilted the balance toward employers.

The version of Section 8 that preceded the current provision was recommended in A Report to

the Honourable Moe Sihota, Minister of Labour: Recommendations for Labour Law Reform,

(September 1992) (the “Special Advisers Report, 1992”); see Appendix “A", Draft Labour

Relations Code, Section 8.

-3-


March 2018

The Special Advisers observed that:

…one of the major impediments to union organization is employer opposition. That opposition

can easily manifest itself during an organizing campaign when employer representatives express

inappropriate opinions on the question of unionization. We accept the view that employers have a

legitimate interest in whether their employees organize for the purpose of collective bargaining.

On the other hand, we believe that employers must maintain a circumspect position during an

organizing campaign to ensure that employees are able to freely choose whether or not they wish

to belong to a trade union (page 20)

HEU accepts and support this view.

RECOMMENDATION 1.1

Amend Section 8 to read…

Nothing in this Code deprives a person of the freedom to communicate to an employee a

statement of fact or opinion reasonably held with respect to the employer’s business.

RECOMMENDATION 1.2

…and Section 6(1) to read:

An employer or a person acting on behalf of an employer must not participate in or interfere with

the formation, selection or administration of a trade union or contribute financial or other support

to it.

Prompt representation vote

As noted above, during organizing campaigns, HEU has faced significant employer resistance in

the period between the filing of an application for certification and the representation vote, which

is typically held on the 10th day after an application is filed.

There is no question that employer interference is a major impediment to union organizing; see

the Special Advisers Report, 1992 and Managing Change in Labour Relations: The Final Report

(February 25, 1998) (the “Section 3 Report, 1998”).

Employer resistance is at its most fierce during the period of time leading up to the vote. The

period of time in which employers may campaign against certification must be reduced to

ameliorate the impact of such campaigns.

Section 8(5) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1 provides that a vote must

be held within 5 days of the date the application for certification is filed.

HEU acknowledges that this proposal requires the Province to provide sufficient funding to

ensure that the Code is administered effectively, but submits that such funding is necessary but

lacking at present.

-4-


March 2018

RECOMMENDATION 1.3

Amend Section 24(2) of the Code to provide for a representation vote within 3 days from

the date the Board receives the application for certification, or in any event, not more

than 5 days.

Limit mail ballots

The Board maintains that in-person representation votes are the primary and preferred means of

canvassing employee wishes and that mail ballots are the exception e.g. Walter Canadian Coal

Partnership, BCLRB No. B51/2014, 242 CLRBR (2d) 211; TBS Transport Ltd., BCLRB

B93/2006.

HEU agrees with that approach.

Mail ballots mean a protracted process, and indeed, where large numbers of employees are

involved, “protracted” might mean several weeks. This allows employers ample time to exercise

their extensive right to communicate and bring pressure to bear on employees, even undue

influence.

Unfortunately, in practice, the Board has been somewhat too inclined to invoke the exception

rather than the rule. This gives rise to a concern that the Board’s orders reflect the fact that the

Province has not allocated sufficient resources for effective administration of the Code. Or, it

may be that mail ballots are ordered because it is simply seen as more convenient to do so.

HEU’s proposal is aimed at limiting the Board’s discretion in this area.

RECOMMENDATION 1.4

Amend Section 24(2) of the Code to read as follows:

A representation vote under subsection (1) must be conducted within 10 days* from the

date the board receives the application for certification or, if the vote is to be conducted

by mail, because an in-person vote is not practicable, within a longer period the board

orders.

(*note our related recommendation in Recommendation1.3 above)

Provide for card-based certification

HEU submits that the Committee ought to recommend card-based certification to the Minister as

a significant step toward restoring meaningful access to collective bargaining for workers in

British Columbia. Card-based certification was a feature of labour legislation in British

Columbia for many years.

There is no question that mandatory representation votes allow for inappropriate and unlawful

employer interference in union organizing campaigns; see the Special Advisers Report, 1992 and

-5-


March 2018

Managing Change in Labour Relations: The Final Report (February 25, 1998) (the “Section 3

Report, 1998”).

Nonetheless, the BC Liberals eliminated card-based certification in Bill 18 on May 16, 2002.

In Alberta, recent changes to the Labour Relations Code, c. L-1 provide for card-based

certification where the applicant union establishes that it has secured cards from 65 per cent of

employees in the proposed unit. In Ontario, Schedule 2 of the Fair Workplaces, Better Jobs Act

amends the Labour Relations Act, 1995 by adding Section 15.2 to provide for card-based

certification in certain industries e.g. home care and community services industry, where the

applicant union demonstrates 55 per cent membership support.

HEU’s proposed change to the Code will bring it into line with “best practices” in progressive

jurisdictions in Canada.

RECOMMENDATION 1.5

Amend Part 3, Division 1 of the Code to restore card based certification where the

applicant trade union can demonstrate 55 per cent membership support.

RECOMMENDATION 1.6

Amend Section 24(1) of the Code to provide for a representation vote where the applicant

trade union can demonstrate membership support between 45 per cent and 54 per cent.

2) Amend the Code limit to “raids”

The last several years have seen a significant amount of raiding activity in British Columbia.

While HEU recognizes that workers have the right to select and to change bargaining agents,

HEU joins with the labour movement in lamenting the increase in this kind of unproductive and

divisive activity.

The Board has recognized that raids are inherently disruptive to employers, unions and

employees e.g. IHA (East Kootenay Regional Hospital), BCLRB No. B109/2013, 228 CLRBR

(2d) 1 at paragraph 46.

Currently, Section 19 of the Code limits raid applications to the “open period” i.e. “…the seventh

and eighth month in each year of the collective agreement or any renewal or continuation of it.”

HEU submits that this limitation has not sufficiently prescribed raiding.

-6-


March 2018

RECOMMENDATION 2.1

Amend Sections 19(1), 19(2) and 19(3) of the Code to read as follows:

(1) If a collective agreement is in force, a trade union claiming to have as members in good standing

a majority of employees in a unit appropriate for collective bargaining may apply to the board to

be certified for the unit only once during the term of the collective agreement or any renewal or

continuation of it.

(2) An application may only be made under subsection (1) during the seventh or eighth month in a

given year in the term of the collective agreement.

(3) Despite subsections (1) and (2), an application for certification may not be made under those

subsections at any time during the term of a subsequent collective agreement if a previous

application resulted in a decision by the board on the merits of the application.

3) Facilitate the conclusion of first collective agreements

Extend the statutory “freeze” period

The period of time between the date of certification and the conclusion of a first collective

agreement is a sensitive one. Section 45 of the Code maintains at least a measure of stability

during that sensitive time but only for a period of four months. HEU’s experience is that it

invariably takes far longer to conclude a collective agreement than four months.

In the Section 3 Report, 1998, the Committee recognized this problem, and recommended that

the statutory freeze period be extended to eight months, but on the basis that “the freeze should

reflect the average length of time it takes to conclude a first collective agreement…”; Part Four

“B”, page 7.

RECOMMENDATION 3.1

Amend Section 45(1)(b) of the Code to read:

…

(b) the employer must not increase or decrease the rate of pay of an employee or alter another

term or condition of employment until

(i) a strike or lockout has commenced; or

(ii) a collective agreement is executed

whichever occurs first.

-7-


March 2018

(ALTERNATE) RECOMMENDATION 3.2

Amend Section 45(1)(b) of the Code to read:

…

(b) the employer must not increase or decrease the rate of pay of an employee or alter another

term or condition of employment until

(i) XX months [the average length of time it takes to conclude a first collective

agreement]; or

(ii) a collective agreement is executed

whichever occurs first.

First collective agreement interest arbitration

While HEU favours the conclusion of collective agreements through free collective bargaining,

HEU also recognizes the value of first collective agreement interest arbitration.

Nonetheless, HEU recognizes that there is tension between these concepts. In Yarrow Lodge,

BCLRB No. B444/93, 21 CLRBR (2d) 1, the Board observed that:

The philosophical opposition to the imposition of first contract is framed in terms of the

significant, traditional values which we place on freedom to contract, free collective bargaining

and the value of “private ordering” or self-government (page 24)

More specifically, the Board also made this observation:

Another infringement on the principle of free collective bargaining inherent in compulsory

arbitration is that it takes away a party’s right to strike or lock out. First contract imposition

certainly does this. However, on a closer examination of s. 55, it only places a partial

infringement on these rights. First, under Section s. 55(7), the Associate Chair (Mediation) can

direct the parties to in fact exercise their right to strike or lockout. Second, unlike compulsory

arbitration schemes, any infringement under s. 55, which may or may not take place, is only for

the period of the first contract (pages 25, 26)

And while the Board said that where neither the trade union nor the employer engages in

‘impugned conduct”, the recommended option should “invariably be strike or lockout” (pages

38, 39). That is not HEU’s experience under Section 55.

In HEU’s experience under Section 55, it unduly impedes the conclusion of a first collective

agreement through private ordering. An application under Section 55 provides employers with a

means to effectively nullify a strike vote. As soon as the trade union secures a strike mandate, the

employer may all but set it at naught through an application under Section 55; see Section

55(1)(b) and Section 55(2).

-8-


March 2018

HEU submits that after the parties have bargained collectively in good faith toward a first

collective agreement, a trade union must be able to secure a strike mandate and continue with

collective bargaining on those terms. And if need be, the trade union must be free to strike. The

Code expressly contemplates, and provides for, economic pressure as an essential aspect of free

collective bargaining; see Part 5 and Part 7.

Under this model, if the matter ends up before an interest arbitrator at a later date, the experience

of the parties will be of greater assistance to her or him in applying the “replication principle”

and what is “fair and reasonable in the circumstances”; see Yarrow Lodge, page 46.

Finally, in Yarrow Lodge, the Board bluntly stated that:

Although it may seem self-evident or that we are simply stating the obvious, the policy of s. 55 is

that the terms and conditions of a first contract are to be negotiated, not arbitrated (page 45)

HEU submits that its proposal is in keeping with this fundamental policy.

RECOMMENDATION 3.3

Amend Section 55(1)(b) of the Code to read…

55 (1) Either party may apply to the associate chair of the Mediation Division for the appointment

of a mediator to assist the parties in negotiating a first collective agreement, if

…

(b) the trade union has taken a strike vote under section 60 and the majority of those

employees who vote have voted for a strike and the period of 3 months referred to in section

60(3)(a) has elapsed

…and delete Section 55(2) of the Code.

4) Enhance the Adjustment Plan provisions of the Code by providing for the possibility of binding adjudication

HEU has much experience in consultations with employers under Section 54 of the Code. While

the provision is important and encourages discussion, it is sometimes the case that the outcome

of the discussions is a forgone conclusion and the invitation to consult is merely pro forma.

And, as the Board has said many times, Section 54 does not require the parties to conclude an

adjustment plan e.g. Nanaimo Times, BCLRB No. B321/979 (upheld on reconsideration in

B370/97).

HEU proposes that Section 54 should include at least the possibility that an adjudicator might

impose terms and issue a binding decision to conclude an adjustment plan. This would make it

-9-


March 2018

more likely that an adjustment plan will emerge from the process and encourage the parties to

seriously work toward their own deal.

RECOMMENDATION 4. 1

Amend Section 54 of the Code by adding the following as sub-section (3)…

If, after meeting in accordance with subsection (1), the parties have not agreed to an adjustment

plan, either party may apply to the board for an order referring all or some outstanding issues to

binding arbitration.

…and re-number the current sub-section (3) as sub-section (4)

5) Amend Section 2 of the Code to underscore the Board’s true mandate

In Bill 42 (2002), the provincial government re-wrote the “purposes” provision in the Code. The

new provision imposed “duties” on trade unions, employers and the Board to foster employment

in economically viable businesses, enhance productivity, and take economic conditions into

account, among other things.

It is not clear what consequences might be visited upon “persons” who are in breach of these

“duties”. This term is not apt; a “purposes” provision is more appropriate.

As was said in the Special Advisers Report, 1992, “Canadian legislation has for the last 50 years

encouraged collective bargaining by workers” (page 9) and “…the collective representation of

employees by trade unions continues to be a socially desirable institution” (page 11).

Similarly, in the Section 3 Report, 1998, the Committee referred to “…the social consensus that

collective bargaining is desirable”. Indeed, the Committee found views questioning the existence

of this consensus “disturbing”; Executive Summary, page 1.

HEU is of the view that this consensus continues to exist and that our Code must reflect it.

HEU is also of the view that negotiation and mediation ought to be emphasized in the “purposes”

section. The Board must more robustly encourage mediation and that the position of Chair of the

Mediation Division must be filled. To that end as well, HEU submits that members from the

community should be utilized more often in adjudication given their practical experience and

their ability to broker settlements.

-10-


March 2018

RECOMMENDATION 5.1

Amend Section 2 of the Code by:

…styling it as the “Purposes” section of the Code

…adding the following as Section 2(a)

(a) fosters and promotes collective bargaining as a socially desirable institution

….amending Section 2(h) to read:

(h) encourages the use of mediation as a dispute resolution mechanism whenever possible

6) Consider amendments providing for broader based bargaining through multi-employer sectoral certifications

Section 40 of the Labour Code of British Columbia, 1973, c. 122 provided for multi-employer

certification where the unit sought by the applicant trade union was appropriate for collective

bargaining, where the majority of employees employed by the employers were members in good

standing of the trade union and where a majority of the employers consented to the

representation of the unit by one trade union.

This provision remained unchanged until about a decade later, when the government of the day

enacted the Labour Code Amendment Act, 1984, c. 24. Section 5 of the Act amended Section 40

of the Code to provide that all employers covered by an application must consent to multiple

employer certification and for representation votes.

That version of Section 40 somehow survived the introduction of the Industrial Relations Reform

Act, 1987, c. 24 and lived on until it disappeared when the Industrial Relations Act, RSBC 1973,

c. 122 was repealed under Bill 84 in 1992.

In other words, sectoral certification was a feature of the Code in British Columbia for almost 20

years.

And indeed, sectoral certification continues on in British Columbia in the Health Authorities Act,

RSBC 1996, c. 180. Part 3 of that Act provides that province-wide, multi-employee bargaining

units in the health sector are “appropriate” bargaining units and that associations of unions in the

facilities subsector and community subsector must bargain collectively with HEABC.

In HEU’s experience, this model provides for stable labour relations and collective bargaining

when collective bargaining is given free reign.

-11-


March 2018

In the Report of the Special Advisers, 1992, Special Advisers Vince Ready and John Baigent

(with Tom Roper in disagreement) recommended that multi-employer certification should be re-

introduced in these terms:

We consider our recommendations in this area as among the most important and significant we

are making. Our recommendations attempt to address the peculiar difficulties that workers in

small businesses encounter in seeking union representation (page 30)

A general description of the model favoured by Baigent and Ready is set out on page 31 of the

Report:

The model we recommend would be available only in sectors which are determined by the

Labour Relations Board to be historically underrepresented by trade unions and where the

average number of employees at work locations within the sector is less than 50. A sector has two

characteristics: a defined geographic area (e.g. Marpole, Burnaby, the Lower Mainland or the

entire Province) and similar enterprises within the area where employees perform similar tasks

(e.g. preparing fast food, child care, picking fruit or pumping gas). For example, a sector could

consist of “employees working in fast food outlets in Burnaby”.

An examination of the various models of sectoral certification is beyond the scope of this

Submission but sectoral certification, as indicated by Baigent and Ready almost 25 years ago, is

a pressing and important issue. If anything, the fragmentation of certain subsectors within health,

for example long-term care and hospital contracted support services, has made workers even

more precariously employed than they were 25 years ago.

RECOMMENDATION 6.1

Strike a committee of special advisers under Section 3(1)(b) of the Code to examine and

make recommendations as to possible amendments to the Code to provide for broader

based bargaining through sectoral certification.

7) Amend the Code to provide for successorship upon contracting out in the health sector and the residential long-term care sector

HEU has steadfastly resisted contracting out in health care for decades to maintain quality public

care and to protect hard won collective bargaining rights. But in 2002, the government of the day

enacted the Health and Social Services Delivery Improvement Act, SBC 2002, c. 2, legislation

which permitted health sector employers to contract out on a massive scale in the sector and

layoff some 8,000 HEU members in a few short years.

Not only does the Health and Social Services Delivery Improvement Act open the door to

widespread contracting out, it also expressly provides in Section 6(5) that the successorship

-12-


March 2018

provisions in the Code do not apply to a service provider who enters into a contract with a health

sector employer. This, of course, precludes any possibility that a trade union might apply to the

Board and secure a successorship declaration. In the contracted Social Services Sector, the Act

goes so far as to void successorship protection in the government contract tendering process that

had been negotiated between the government and health care unions.

Sections 4(4) and 5(5) of the Health Sector Partnerships Agreement Act, SBC 2003, c. 93 extend

the successorship exclusion further to preclude a finding of successorship when a designated

private sector partner contracts out or where a contractor at a designated health care facility sub-

contracts. Together, the Health and Social Services Delivery Improvement Act and the Health

Sector Partnerships Agreement Act effectively withhold successorship protection from unionized

employees in the health sector and at most seniors care facilities.

The Supreme Court of Canada ultimately found that the Health and Social Services Delivery

Improvement Act violated the Charter, at least in part, but Section 6(5) survived HEU’s Charter

challenge; B.C. Health Services, 2007 SCC 27.

This legislation had an enormously detrimental impact on HEU members. Workers employed for

many years by the health authorities or seniors care facilities suddenly found themselves

unemployed in 2002-2003 and faced with the prospect of having to apply for their “old jobs” in

the same facility. Those that were hired were required to serve a probation period. They had no

union representation (initially, at least) and no collective agreement.

In addition to mounting a legal challenge to the legislation, HEU launched organizing campaigns

across British Columbia and in the ensuing few years, re-organizing thousands of workers who

were employed by contractors, many of whom had been members previously. HEU also

negotiated first collective agreements with the contractors.

From time to time, however, health sector and seniors’ care employers ended relationships with

contractors and engaged new ones. The collective bargaining rights achieved by these workers

and HEU were simply lost. Undaunted, HEU once again campaigned to re-organize the same

workers who were now employed by the new contractors.

Workers formerly employed by the health authorities or seniors’ care facilities and then by a

contractor were yet again unemployed and faced with the prospect of applying for their “old

jobs” with the new contractor. Workers that secured positions were yet again treated as “new

hires” and placed on probation. And yet again, HEU organized them and negotiated “first”

collective agreements with the new contractors.

This cycle continues.

In one seniors’ care facility, the owner or operator engaged six (6) contractors in the period 2003

to 2015.

-13-


March 2018

In addition to undermining trade union rights and workers’ livelihoods, HEU considers the

disruption occasioned by “contract flipping” to be inherently and profoundly damaging to patient

care and seniors care. This is principally because this process seriously compromises continuity

of care, which is particularly important in the residential long-term care sector.

HEU submits that an amendment to Section 35 of the Code is necessary and long overdue. The

lack of protection under the successorship provisions in the Code when employers contract out

has, in fact, been a point of contention for many years. But in the wake of the Health and Social

Services Delivery Improvement Act, it is imperative and even urgent that the issue is addressed in

health care.

The mischief that HEU’s proposed legislative amendments aim to address was identified by the

Board in The Governing Council of the Salvation Army, BCLRB No. B56/86, 12 CLRBR (NS)

185:

The second category of decisions has involved not only an initial contracting out of work (see

Finlay Forest Industries; Electrohome Ltd., BCLRB No. L279/82; Charming Hostess Inc. et al.,

[1982] 2 Can LRBR 409 (OLRB); and Ontario 474619 Ltd., [1982] 1 Can LRBR 71 (CLRB)) but

also the “recapture” of work previously contracted out (see VS Services Ltd., BCLRB No. 152/83;

Three Links Care Society, BCLRB No. 373/83; and Rozell Enterprises Inc., BCLRB No. 137/85),

and the transfer of work from one contractor to another (see Metropolitan Parking Inc., [1980] 1

Can LRBR 197 (Ontario LRB); Empire Maintenance Industries Inc., supra; Cafas Inc. (1984), 7

CLRBR (NS) 1 (CLRB); and Terminus Maritime Inc. et al, 83 CLLC para. 16, 029 (CLRB). For

our immediate purposes, it is not necessary to make distinctions between these various

permutations. The general theme of the decisions in this second category is that there has merely

been a loss or transfer of work, and not a transfer of all or part of a business to which

successorship applies. (pages 191, 192)

The Ontario Board recognized that the successorship provision as it existed in Ontario (and as it

now exists in British Columbia) works an injustice nearly 40 years ago in Metropolitan Parking,

[1980] 1 Can LRBR 197:

In reaching our conclusion we are not unmindful of the rights of the employees and their union,

nor have we rejected the applicant’s contention that the “mischief” present here is virtually

identical to that which Section 55 is designed to remedy. There is no doubt that the periodic

retendering of the management contract can frustrate the employees’ established collective

bargaining rights, threaten their job security, and significantly undermine the possibility of

establishing a stable collective bargaining relationship at the parking location. The need to

continually reorganize the individuals employed at the site not only poses a problem for the trade

union, but also for the Federal Government and any previously unorganized subcontractor who

becomes the successful bidder. There may well be a new application for certification, a new

round of bargaining and threat of industrial conflict and disruption of service each time a new

employer takes over. This is obviously not the intention of the parties…but it will be the result of

the transaction where the circumstances are similar to those existing in the present case. And, for

-14-


March 2018

the reasons which we have already set out, we do not think section 55, as presently drafted, can

cover the situation. To so hold, in the present case, would be to root bargaining rights in the

location, the employees or the work, rather than the “business”. Whatever may be the case in

other subcontracting situations, we do not think the change of subcontractors in the circumstances

of this case constitutes a transfer of a business from one to the other (page 218)

In British Columbia, Bill 44 (1997) contained provisions to address these deficiencies in the

building maintenance, food and security industries but the Bill was withdrawn. Instead, the

provincial government appointed a Section 3 Committee to hear submissions and make

recommendations regarding the issues addressed in the Bill.

In the Section 3 Report, 1998, the Committee chaired by Vince Ready recommended further

study i.e. further study of a Provincial Government initiative “…to provide successorship for

contracted services for government operations, including all government ministries, agencies,

boards and commissions”; see page 3, Part Four “B”. The Committee noted that this would

include janitorial, food and security services.

“Further study” made sense in that milieu, but with the election of the BC Liberals in 2002, that

initiative ended.

A Section 3 Committee subsequently appointed in late 2002 with a limited mandate merely

outlined the debate around “successorship-contracting” and described it as contentious; see the

Report of the BC Labour Relations Code Review Committee, April 11, 2003 (Daniel Johnston,

John Bowman, Eric Harris, QC, Bruce Laughton and Marcia Smith).

The Province of Ontario moved to address the deficiencies in the legislation very recently.

Schedule 2 of the Fair Workplaces, Better Jobs Act, SO 2017 c. 22 amends the Labour Relations

Act, 1995 S.O. c. 1 by adding Section 69.1to provide for successorship where there is a loss or

transfer of work but not a transfer of a “business” in the building services sector. A very similar

provision was in place in Ontario from 1992 to 1995. Schedule 2 also provides for successorship

in cases prescribed by regulation where the service providers receive public funds by adding

Section 69.2.

These additions to the Labour Relations Act, 1995 are intended to cover contracting out and re-

tendering of contracts in building services; see The Changing Workplaces Review, Summary

Report, page 27.

In the federal jurisdiction, the Canada Code provides that when work is re-tendered to a new

contractor to provide pre-board security services, wages must not be reduced. Other jurisdictions

e.g. Saskatchewan have had legislation similar to that in the Ontario in specific sectors.

-15-


March 2018

RECOMMENDATION 7.1

Amend the Code by adding Section 35.1 to provide for successorship upon contracting

out in the building maintenance, food, security and health (including long term residential

care) sectors

(CONCOMITANT) RECOMMENDATION 7.2

To allow Proposed Recommendation 7.1 to become law, repeal Section 6(5) of the

Health and Social Services Delivery Improvement Act, SBC 2002, c. 2

(CONCOMITANT) RECOMMENDATION 7.3

To allow Proposed Recommendation 7.1 to become law, repeal Sections 4(4) and 5(5) of

the Health Sector Partnerships Agreement Act, SBC 2003, c. 93

Conclusion

B.C.’s labour relations regime is in urgent need of rebalancing.

Changes to the Code and the introduction of other legislation over the past 16 years have not

only disadvantaged health care and community social services workers’ ability to join a union,

but to maintain their union membership and collective agreement rights.

In this context, we urge the special advisers to consider amendments to the Code that recognize

the additional barriers that face health and social services workers in exercising their Charter and

Code rights.

It is our view that the range of recommendations contained in this report will also contribute to a

more constructive labour relations climate with fewer Board applications and fewer protracted

and costly Board proceedings.

Addressing concerns around successorship, limiting raids, and investigating multi-employer

sectoral certifications will also, in our view, contribute to greater industrial stability in a sector

that has been rocked by privatization, contracting out and reorganization.

Finally, changes to the Code and related legislation will reduce the chaos and instability that

undermine the conditions necessary for good care in our residential care facilities, community

agencies, hospitals and other settings.

labour relations code review · 2018-03-27 · “undue influence” on employees because “undue...

Documents