Registration and Certification of Unions in Canada

Presentation at thePresentation at theGovernment-to-Government Session and Seminar for an Exchange of Information on Government-to-Government Session and Seminar for an Exchange of Information on Topics of Freedom of Association and the Right to Bargain Collectively, 3rd Session Topics of Freedom of Association and the Right to Bargain Collectively, 3rd Session

Puebla, Mexico, December 2008Puebla, Mexico, December 2008

Secret 2

The Canadian Model

Main aspects: A certified bargaining unit is a group of workers, generally

in a single workplace, considered appropriate for collective bargaining (community of interest). The certified bargaining agent (union) has the exclusive right to bargain on behalf of all of the employees in the bargaining unit (whether or not they are union members).

Collective bargaining in Canada is generally decentralized:in most cases, bargaining takes place at the plant or enterprise level, between an employer and a certified bargaining agent

Collective agreements take the form of fixed term, legally binding contracts prescribing wages, hours of work and other working conditions, as well as matters such as union recognition, job security and work rules.

Secret 3

The Canadian Model (cont’d)

The parties have the duty to bargain in good faith and make every reasonable effort to reach a collective agreement

Strikes and lockouts are illegal during the term of the collective agreement

Some jurisdictions, such as the federal jurisdiction, provide for mandatory conciliation before the parties acquire the right to strike or lockout

Secret 4

Registration of Unions

A union is a voluntary association that does not depend on legislative or governmental action for its creation.

The definition of a trade union under the Canada Labour Code is “any organization of employees or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees.”

Neither labour relations boards nor the courts grant trade union status, but rather determine whether the organization applying for certification meets the definition of a trade union.

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Evidence of trade union status

The basic concern is whether the organization is a viable entity for collective bargaining purposes and is not controlled by the employer.

It is an unfair labour practice (Canada Labour Code) for an employer to participate in or support financially the formation of a union.

The Ontario Labour Relations Board looks for the following evidence:– A written constitution approved by employees– Employees are admitted to membership in accordance with the

constitution. – Constitution is ratified by union members– Union officers are elected in accordance with the constitution

Once a labour board has determined that an organization is a union, that issue does not have to be determined again, unless there is a change of status.

Secret 6

Reporting Requirements

Most Canadian jurisdictions require the filing of the union’s constitution and by-laws with the Ministry of Labour, but are otherwise silent on the content of the constitution.

Most jurisdictions require unions to make annual audited financial statements available to its members.

However, since 1998, the federal government no longer requires the filing of financial and organizational information with the government.

The labour boards and courts limit their intervention in union matters, which are considered to be a private contract between the union and its members.

The review of a union’s constitution by a labour board or by the courts is usually limited to issues such as discrimination and articles that may violate public laws.

Secret 7

Employees in a workplace, by majority support, may choose to be represented by a trade union.

To be certified as the bargaining agent, unions must show that they have sufficient support by submitting to the labour board membership cards that have been signed by employees.

In most Canadian jurisdictions, the union needs enough signed membership cards to show 40% support in order to have the labour board conduct a secret-ballot vote of employees.

These secret-ballot votes are conducted by the labour board either on site or by mail. If by mail, the ballot is mailed out to employees who indicate their preference and then mail the ballot back to the labour board. The votes are then counted by the labour board on a specified date.

Most jurisdictions require a vote in order to certify, although some can certify without a vote where more than 50% of the employees have signed membership cards.

Certification

Secret 8

Certification (cont.)

Most labour boards also have the right to certify without a vote where the employer has been found guilty of an unfair labour practice during the certification process.

Unions and bargaining units are independent and free from employer interference (employer freedom of speech is limited during organizing campaigns)

Unions are entitled to collect union dues from all members of the bargaining unit, whether or not they are union members (« Rand Formula »)

BUT: They owe a duty of fair representation to all members of the bargaining unit –

unions cannot act in a manner that is arbitrary, discriminatory or in bad faith when representing an employee with respect to his/her rights under a collective agreement.

Secret 9

Certification (cont.)

If a majority of employees are dissatisfied with their union representation, they may select another union to act on their behalf or they may apply to decertify their union (the statute sets out the permissible time periods for revocation or replacement applications)

Labour Board is empowered to hear and decide applications for certification and decertification of bargaining agents and complaints against the bargaining agent made by employees.