On May 1, 2003, British Columbia Labour Minister Graham Bruce released the Report of the Labour Relations Code Review Committee. The five-member Committee (Daniel Johnston, John Bowman, Eric Harris, Bruce Laughton and Marcia Smith) was asked to review issues regarding labour relations reform and to provide an independent, objective discussion and analysis. This initial report does not provide recommendations. Rather it provides the Minister with an analysis, based on the Committee’s consultation process over the last several months, of what areas of the Labour Relations Code might require further examination.
The Committee’s Report provides analysis on the following 14 issues:
Definition of Employee
The Committee recommended that, for the time being, the definition of employee should not be changed. The Committee suggested that Board policy be monitored for a longer period prior to any decision being made on whether legislative change to the definition of employee is desirable. The Committee also indicated that, in its view, the Highland Valley Copper case was an unduly restrictive definition of exclusion.
Definition of Picketing
The Committee noted that introducing a broader definition of picketing into the Labour Relations Code might have the benefit of providing greater certainty in the labour relations community. However, the Committee concluded that it may be difficult to devise a definition that would provide complete certainty. The Committee recommended several approaches to the issue.
Unfair Labour Practices
The Committee considered the differences in how the Board deals with unfair labour practice complaints in the context of certifications as compared to decertifications. The Committee did not recommend any changes to the Code on this issue, except perhaps to change the location of the unfair labour practice complaint section in the Code itself.
Duty of Fair Representations Complaints
The Committee concluded that duty of fair representation complainants must be provided with “a means to raise their concerns and have them dealt with.” However, the Committee noted that the principles of natural justice do not require a full evidentiary hearing in every case and that the Board may need to consider alternative adjudicative models to effectively decide these complaints.
Change in Union Representation
The Committee was asked to consider whether the current raid period should be altered. The Committee determined that increasing the time between raid applications could result in a number of unintended consequences and, accordingly, did not recommend an alteration of the raid period.
The Committee concluded that some aspects of partial decertification could be clarified through statute. However some aspects of such applications, such as whether it is appropriate to partially decertify a unit, cannot be legislated and will continue to require decision-making on a case-by-case basis by the Board.
Revocation of Bargaining Rights
Section 33 of the Code allows for the cancellation of a union certification if the employer no longer employs anyone in the bargaining unit. Currently, in order to be decertified, an employer must satisfy the Board that it has ceased to operate and there is no reasonable likelihood that it will re-open in the foreseeable future. It was suggested that an employer should be automatically granted a decertification after a specified period of time if, during that period, no one was employed at the certified operation. The Committee indicated there was support for the proposition that decertification should not be automatically allowed merely because a specified period of time has passed. However, the Committee determined that a solution to this issue could only be achieved in the context of a review of the changing dynamics in the construction industry.
Time Bar After Decertification
The Committee recommended that regardless of whether a time bar is kept in the Code or eliminated, the rule should apply equally to both the union just decertified and to any new union seeking certification.
Successor Rights and Obligations – Bankruptcy
It was proposed that successor rights under the Code should have limited or no application to an operation that is disposed of after being declared bankrupt under the Bankruptcy and Insolvency Act. The Committee recommended the U.S. approach where, upon bankruptcy, a union certification remains in place, but the applicability of the collective agreement may be subject to review. The Committee characterized the U.S. approach as a “compromise position between what currently exists in the Code and the complete removal of successorship rights and obligations that employers are arguing for.”
Successorship – Contracting Out
The Committee was asked to look at the different approaches to successorship that can be taken when contracting out and the practical ramifications of these approaches. The Committee reviewed the approach to successorship taken in a number of different provinces. It determined that “a clear distinction must be drawn between contracting out bargaining unit work in the first instance and a subsequent decision to cancel or not renew the initial contract and to re-tender the work to a new contractor.” The Committee concluded that the adoption of any new approach in this area would be extremely controversial.
Mergers of Union Locals
The Committee was asked whether the Code should be amended so as to govern the relationship between a union local and the national or international union under which it is chartered. The Committee concluded that the Board’s primary concern in examining union local mergers should be whether the decision to merge was arrived at by a democratic process. The Board should not concern itself with whether an international or national union has approved the decision to merge.
First Collective Agreements
Under the Code, where employees form a union, the union and the employer must begin collective bargaining. If the bargaining of a first collective agreement breaks down and the union holds a successful vote to strike, both the union and the employer are entitled under Section 55 of the Code to seek expedited assistance from the Board to reach an agreement. The Committee was asked to consider the section 55 process. The Committee concluded that it is important that the Code provide a process to support the collective bargaining of a first agreement. The Committee agreed that “the precondition of a successful strike or lockout vote before parties can access Section 55 has a real impact on the bargaining process”.
Last Offer Votes
The Committee was asked to consider the effect of the current “last offer vote” process on the dynamics associated with negotiating a collective agreement and to determine if there are any alternatives to this process. The Code currently allows an employer, before a strike or lockout, to apply to the Board for a secret ballot vote on its last offer. The Committee determined that the issue of last offer votes does not have a significant effect on the dynamics associated with collective bargaining, since the section is rarely invoked. Further, in many cases, employees reject the final offer.
The Committee considered whether the current process for expedited arbitration under Section 104 of the Code met the dual goals of providing quick, cost-effective access to dispute resolution while training skilled new arbitrators. The Committee concluded that the current expedited arbitration process is “inflexible, fails to respond adequately to employers of d
ifferent sizes or parties with particular issues, and has not provided quick, cost-effective dispute resolution”. The Committee suggested several statutory provisions to enhance the expedited arbitration process.