On May 13 2002, Bill 42, the Labour Relations Code Amendment Act, 2002 was given first reading in the BC Legislature. Bill 42 proposes a number of changes to the Labour Relations Code (the “Code”) which will have a positive impact for employers. The most important changes for employers are:
- Express recognition of the interests of employers and employees within the “purpose” section of the Code.
- An expanded right of free speech for employers; and
- A provision for future regulations which will allow employers to hold meetings with their employees prior to certification or strike votes.
Bill 42 is expected to progress through second and third reading and be brought into law fairly quickly.
Amendments to the purposes of the Code
The “purposes of the Code” are set out in section 2 of the Code. This section acts as a general guide for interpreting all other sections within the Code. Bill 42 makes important changes to this section, by deleting one of the current purposes of the Code and adding two new purposes.
The purpose deleted by Bill 42 is the current section 2(a):
“To encourage the practice and procedure of collective bargaining between employers and trade unions as the freely chosen representatives of employees.”
This change is significant, because it signals that the LabourRelations Board should be acting as a neutral, rather than promoting unionization and collective bargaining. It is a significant departure from the traditional paternalistic approach that unionization is deemed to be beneficial for employees, and that the Labour Board should assist in promoting unionization.
The two new proposed purposes of the Code require powers and duties under the Code to be exercised by the Labour Board in a manner that “recognizes the rights and obligations of the employees, employers and trade unions”, and in a manner that “fosters the employment of workers in economically viable businesses”. These changes are significant in that they expressly recognize the interests of employers and employees (the interests of unions have always been recognized), and explicitly recognizes that viable businesses are the cornerstone of creating and maintaining employment opportunities for British Columbia workers.
Employer free speech
Section 6(1) of the Code places a blanket prohibition on employers participating or interfering with the formation, selection or administration of a union, subject to the employer’s right under section 8 to communicate to an employee “a statement of fact or opinion reasonably held with respect to the employer’s business.” Bill 42 expands an employer’s right to communicate under section 8, and changes section 6(1) to clarify that the employer’s right under section 8 does not constitute an unfair labour practice.
Under the new section 8, any person, including an employer, has the freedom to express their views on any matter, including matters relating to a union, provided that the person does not use “intimidation or coercion”. Although these changes will undoubtedly expand an employer’s right to communicate, freedom of expression will still be subject to the Labour Board’s interpretation of “intimidation or coercion”, which has historically been interpreted very broadly.
Meeting with employees prior to certification or strike votes
Bill 42 allows regulations to be created which will permit presentations by both an employer and a union prior to any vote under the Code (such as certification or strike votes). Such regulations, if enacted, would significantly expand the right of an employer to communicate with its employees on issues that are vital to an employer’s interests.
Bill 42 also allows regulations to be created which would give the Labour Board the ability to charge fees for various services. At this time, it is not known what services parties will be required to pay for, or the amount of any fees.
The remainder of the changes are largely procedural and administrative in nature. Amendments to section 83(1) of the Code will give the power of appointment of the Director of the Collective Agreement Arbitration Bureau to the Chair of the Labour Relations Board, and allow the Director to designate employees of the Bureau.
Section 105(3) of the Code presently provides that where both the employer and union wish to appoint a mediator-arbitrator to settle their dispute, but are unable to agree on an individual, the Labour Board is obligated to appoint a mediator-arbitrator. The changes to the Code will give the Labour Board a discretion to decline to appoint an individual to this position.
Changes to section 116(2) of the Code will allow the Chair of the Labour Relations Board to appoint one or more Vice Chairs to deal with mediation and adjudication matters as well as the appointment of a Vice Chair to act as Registrar of the Board.
The amendment of section 121(2) of the Code expands the ability of the Chair to delegate his or her authority on a variety of matters to other officials within the Board.
Further changes to the Code are expected in the future. The Minister of Labour has indicated that the government will appoint a committee of special advisors under Section 3 of the Code. We anticipate that the committee will review other areas of the Code (such as decertification and picketing issues) in consultation with stakeholder groups and the public. Further legislation is likely to follow the report of that committee.