The Labour Relations Amendment Act Expands Secret Ballot Representation Votes

By Ken Dolinsky on 2016/11/25

The Manitoba government has changed the process for unions trying to get bargaining rights with union-free employers. On November 10, 2016, the Manitoba government passed Bill 7, The Labour Relations Amendment Act. Under the new law, a union seeking to represent employees in a Manitoba workplace normally cannot be certified without a secret ballot representation vote, administered by the Manitoba Labour Board.

Until recently, if a union obtained at least 65% support within the “bargaining unit” (normally by submitting signed union membership applications), the Labour Board was required to certify the union automatically, without a vote. Votes were only held if the union support was at least 40%, but less than 65%. This had been the system in place since amendments in 2000.

If there was any dispute about individual employee or classification status that did not affect the 65% threshold (whether included in the bargaining unit or not), the Labour Board could issue an interim certificate. In that case, the union had full bargaining rights pending the outcome of that dispute.

There have been different perspectives on the card-based certification.  The employer perspective was that a system of certification without a vote was not democratic.  Unions don’t have to charge any fee to apply for membership in Manitoba, and it has been common for employees to comment that they did not know that signing a membership card meant there may not be a vote.

Unions have opposed the amendments on the basis that a vote is an opportunity for an employer to coerce employees to vote against certification.

Whether some or all of those perspectives are valid, the votes will now be required, even though most of the existing process remains in place.  A basic overview of the process is set out below.

New Rules (Including the Old Rules)

A union must have a minimum 40% support within an “appropriate” bargaining unit to proceed with an application for certification. (not changed)

An employer must provide a “Return” to the Labour Board within two business days of being served with an application for certification, which includes mandatory information about employee classifications, employee personal information and any objection or position it may have on the bargaining unit configuration. (not changed)

The Labour Board has the power to determine whether a bargaining unit is appropriate, and the employer may dispute appropriateness. (not changed)

The substantive change is that there will be a secret ballot vote, whether the union gets 40% or 80% support. Note that the employer will not be told the percentage of support. (it never has)

If the Labour Board determines that the 40% threshold is met, it will hold a meeting to plan a secret ballot representation vote. This vote must take place within seven days of the date of the application for certification. (not changed)

A union will be certified by the Labour Board if the majority of ballots cast vote “yes” to the question:  “Do you wish to be represented by (fill in union name here)?” An absolute majority of employees is not required to certify. (not changed)

Note also that the Labour Board may order certification on a discretionary basis, even if a union loses a vote, and in some cases where the union does not reach the 40% support. (not changed)

To certify on a discretionary basis, the Board would have to find that the employer committed an unfair labour practice, the result of which is that the “true wishes of employees cannot be ascertained” and the union has “adequate support” in the opinion of the Labour Board. (not changed)

Although the certification process has changed to expand secret ballot voting, the timeframes and obligations remains onerous on employers. Our experience during a previous period of automatic votes, from 1997 – 2000, was that unions were still winning a substantial majority of votes. Therefore, employers should not consider the expanded voting to be a “magic bullet” to ward off certification.

Note also that Manitoba still has severe restrictions on employer communications to employees during a union organizing drive. The consequences of violating the restrictions can be harsh, including discretionary certification. We recommend that you seek advice from counsel if you have questions about the certification process or union organizing.

**P.S. The Federal certification regime has gone in the opposite direction. One of the Canadian government’s first actions under Liberal majority was to repeal automatic vote provisions in the Canada Labour Code, introduced near the end of the last Conservative mandate. Federally regulated businesses are returning to the previous system of certification without a vote, where the union applies with the support of more than 50% of bargaining unit employees. Bill C4 was passed in the House of Commons, and is currently before the Senate. Secret ballot representation votes will continue in federally regulated business until the Canada Labour Code amendments come into force.

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