'Being a great employer is your best possible option in this case'
Employers in B.C. could soon face new challenges after the majority NDP government introduced a bill that would allow a workplace to join a union without a vote by employees.
The amendments to the Labour Relations Code, introduced on April 6, will allow bargaining units to be created if 55 per cent of workers sign union cards. The new rules will allow the organizing union to apply for automatic certification by the labour board after reaching that threshold.
If the union only manages to sign between 45 and 55 per cent, then a secret ballot vote may be instituted.
The new rules replace the existing two-step regime (signing of cards and a vote) that were implemented in 2001 by a previous government.
“The nature of work has changed, with growing wealth inequality and new types of precarious and gig work. This is about giving workers the choice to speak with a collective voice for fair working conditions,” says Harry Bains, Minister of Labour.
But what will this mean for employers?
“The worry for our members is that they may end up being certified when they’re not entirely convinced that all their employees want to be certified,” says Andrew Wynn-Williams, divisional vice president for B.C. for Canadian Manufacturers Exporters (CME) in Victoria.
“Certification comes with some challenges for industry, and it’s not a wage issue: manufacturing pays pretty high wages already; it comes around flexibility and management issues, it just becomes more complicated,” he says.
While the news came as no surprise to businesses and organizations such as the CME, it’s still disappointing, says Wynn-Williams.
“These are all increasing costs… there’s been a lot of other things that the government has done on this front which are creating increased challenges for industry,” he says. “So once they start to pile up, the cumulative effect is starting to become pretty significant.”
The legislation, once passed, will also present challenges for employers who are facing a union drive and looking for an opportunity to present their case for rejecting unionization, according to a Vancouver employment lawyer.
“They’re looking to educate, to make sure those people — who have had someone go up at their door and they’ve quickly signed the card because of the coworker, and they don’t want any conflict at work where they spend eight hours a day — to make sure they understand what they’re doing and give them a chance to make that decision in a secret ballot format, as opposed to a politicized one-on-one where everybody’s aware of how you’re voting,” says Michael Watt, partner at Alexander Holburn Beaudin Lang.
Allowing unions to conduct drives without ballots may also put undue pressure on certain employees, who might be wavering on the idea of joining a bargaining unit, he says.
“All your coworkers, or those looking to looking to have individual sign up for union membership, one would expect to know who and who has not signed a card because they’ve gone to them, approached them, and they’re holding the cards that have been signed. They know who said yes and who said no, and so the secret ballot votes tended to give people a chance to make that determination without the pressure of politics.”
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While the process of getting employees to sign cards can often take months, this also complicates matters, according to Wynn-Williams.
“If you think about it, someone could sign a card and then it could take six months before enough people have signed cards and by that time, they may have changed their mind; they might have learned new things or individuals may have signed cards because their friends were signing cards, and it was in a group and they felt they had to go along with their friends, or their coworkers, when that wasn’t something they necessarily wanted themselves.
“A secret ballot just removes that doubt and a secret ballot has been a fundamental democratic right for us, so we’re disappointed that they’ve taken that out because if a workplace wants to certify that, a secret ballot vote shouldn’t be a barrier,” he says.
For employers, the only remaining recourse is to step up education efforts once a drive is underway, says Watt.
“Letting [staff] know what the process involves, that its collective bargaining that could lead to strikes or lockouts; that there’ll be union dues that are deducted from their pay; that they’ll be governed by a collective agreement as opposed to their individual contract. Those are the types of things you’d typically see come out from employers between the time of an application and a vote to make sure the individuals know what they’re doing.”
Employers who are doing this already know that engaging in threats of reprisal for those who sign cards is illegal, but informing employees is not, he says.
“Those types of statements have been sanctioned by the [BC Labour Relations] board as being fair statements by an employer that are not intimidation.”
HR departments may have work to do in order to be ready for potential drives, says Watt.
“If one proceeds on the assumption that a union drive results from unhappiness in the workplace due to working conditions or compensation then HR professionals — if they haven’t already because it’s such a tight labour market — they’re going to need to ensure that their workplace is being as fair as they can in the economic client climate to the tangible benefits of compensation, and how it’s paid and the things that can upset employees in that tangible method, including how overtime is allocated, sick leave, to the intangible parts, that is, how are people interacting? Do you have a supervisor who’s allowed to remain in their position, even though their methods are more hard-nosed than today’s worker is willing to put up with?”
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The CME will continue to advise member employers to “follow the best possible HR practices: if you’re a good employer, you’re less likely to be certified, it’s that simple,” says Wynn-Williams.
“We have programs and services to help people become better employers. Here in B.C., we’ve got an HR council, and we have a training that we offer in other best practices options. Being a great employer is your best possible option in this case, and then it won’t be as big an issue; but you just have to be aware of that this could now come as a surprise for you, [you] could be more vulnerable to all of a sudden finding out you’re certified without having any preparation.”
