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Legal Notes: Contractors must be ready for Ontario’s ‘Open Period’

John Bleasby
Legal Notes: Contractors must be ready for Ontario’s ‘Open Period’

Ready. Set. Go. It’s “Open Period” for labour representation in Ontario.

From March 1 to April 30 employees can decide the fate of their representation for the next three years. Will they continue with their current union? Will they attempt to decertify their union? Or will a union attempt to displace a current one?

Most common within the ICI construction sectors are decertification applications, Diane Laranja, partner and labour law specialist with Filion Wakely Thorup Angeletti LLP, told the Daily Commercial News. There could be several reasons.

“A unionized employee may wish to negotiate directly with their employer without the involvement of a union or without the administration of a collective agreement. They may not be satisfied with the wages, benefits, working conditions and representation, or they may not be satisfied with the level of control they have over the negotiation process.”

It’s a period of uncertainty for workers, unions and employers.

“Whether it’s an application to decertify or to switch from one union to another, the outcome affects not only the terms and conditions of employment but also employees’ access to work,” says Laranja. “The outcome also affects what work the employer can bid on or perform.”

There are specific rules governing how a decertification begins and is carried out. Timelines are tight and governed by the application date.

At the outset, it’s strictly a matter between workers and unions, not employers.

“An employer has no lawful ability to commence a displacement or termination application,” say Sahil Shoor and Tushar Anandasagar of Gowling WLG.

Although only one employee’s name appears on the decertification application, Laranja explains the application must be accompanied by signed and dated evidence naming the employees expressing their wish to no longer be represented by that union.

If the Ontario Labour Relations Board (OLRB) determines at least 40 per cent support decertification, a vote will be held within five business days of the application filing date.

However, within two days of receiving the application, Laranja says the employer must file a list of employees by name in order to assist the OLRB in determining which employees are within the bargaining unit and therefore eligible to vote.

“The union has an opportunity to challenge the list in case someone has not been identified and should be included. It’s very important to ensure that those who participate in the vote are properly included within the bargaining unit.

“For example, there should not be a situation where painters participate in a vote involving construction labourers’ work. Employees not at work that day for whatever reason, even those employed for a long period and very loyal to the union, won’t count.”

Subcontractors and management are likewise excluded.

It makes the date of application strategically important as well, says Laranja.

“An employee seeking to decertify will be very intentional about what day they file the application.”

Although employer conduct and communication is otherwise greatly restricted, they may intervene within the two-day window to make proposals concerning the conduct of the vote, say Shoor and Anandasagar. Voting at numerous sites or a central site may each carry certain advantages for the employer, while also ensuring all those qualified can cast votes. There is also an obligation to post certain notices in the workplace.

But that’s about it.

“If an employer plays any role whatsoever in instigating, encouraging or assisting employees in a decertification application, the OLRB will dismiss the decertification application and may find that the employer has committed an unfair labour practice,” says Laranja.

Even casual comments made by supervisory staff matter.

“The employer must defend themselves against statements alleged to have been made or conduct alleged to have been done.”

Successful decertification requires a minimum 50 per cent of ballots cast.

Rumours heard over coffee or around worksites can often give employers advance warning of any potential decertification or raiding applications. Given the high stakes and timelines, professional legal advice should be sought immediately in order to properly prepare.

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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