http://www.labourblawg.ca Yu-Sung Soh 06/17/2013
On June 5, 2013, Blaine Calkins, a Conservative MP from Alberta, introduced Bill C-525, a private member’s bill that proposes fundamental changes to the rules on the certification and decertification process for both public and private sector unions representing employees in the federal jurisdiction. Titled “Employees’ Voting Rights Act”, Bill C-525 is a blatant attack on unions which stacks the deck in favour of employers opposed to unionization and aims to make the process of certifying a union more difficult, while making the process for decertifying a union easier.
The current federal labour relations regime uses a “card check” model for certification where unions that can show documentary evidence of support from a majority of employees in the bargaining unit may be certified without a vote. Bill C-525 proposes to abolish the card check model and require a mandatory representation vote in all certification applications. Numerous studies have shown that a change from a card based model to a vote based model for certification has a detrimental effect on the ability of unions to successfully organize, as the time between the filing of the application and the taking of the representation vote provides employers with an opportunity to engage in unfair labour practices by threatening, intimidating and coercing employees not to vote for the union.
Many of us are familiar with the experience of Conservative governments changing labour laws to replace card check certification with mandatory representation votes in a number of Provinces, including in Ontario. In such representation votes, the general rule is that a union must win more than 50% support from employees who participate in the vote in order to be certified. What is particularly outrageous about Bill C-525 is that it apparently requires a union show support from more than 50% of all employees in the bargaining unit, regardless of whether they participated in the vote, in order to be certified. This would mean that, under this process, an employee who does not show up to vote, for whatever reason, would be taken as having voted against the union.
Proponents of the vote based model for certification often support their position by drawing parallels between a representation vote in a certification application and the process used to democratically elect our representatives in government. However, Bill C-525 does not even afford unions the same process used in democratic elections to elect our lawmakers, the process by which an MP such as Blaine Calkins relied upon to gain his seat in Parliament. If MPs were required to obtain majority support from the entire electoral constituency in their ridings, there would be no elected officials in government.
Further, a certification model where employees who do not attend the representation vote count against the union assists an employer in identifying those who support the union. The employer could simply tell its employees not to attend the vote and assume that all those who attended the vote supported the union. Such a process defeats the entire rationale behind a secret ballot and encourages employers to commit unfair labour practices against its employees.
While Bill C-525 would make union certification much more onerous, the same obstacles would not apply to applicants seeking to decertify the union. In a decertification application, Bill C-525 calls for a representation vote where the burden would be on the union to win more than 50% support from all employees in the bargaining unit in order to continue to represent them, failing which the union would be decertified. This means that after a decertification application is filed with the requisite documentary support, if no one shows up to the representation vote, the union will still be decertified. Even in a decertification application, a “no show” equates to a vote against the union. By contrast, the current process requires an applicant in a decertification application to show majority support against the union in order to decertify the union.
Bill C-525 proposes a process of union certification and decertification that is completely unfair and one-sided. It is the equivalent of legislating the rigging of representation votes against unions and in favour of those opposed to unionization. The bill goes against the very spirit of the right to the freedom of association enshrined in our Charter. This is a private member’s bill that will, hopefully, never see the light of day.