Establishment and Termination of Bargaining Rights in Ontario

employment_labourEmployers and employees are significantly impacted when a union is introduced into or removed from a workplace. In this blog, we explain ways in which bargaining rights in Ontario are established and how they come to an end.  All parties are typically involved in the process in some fashion and may wish to have legal guidance.

 Vote or Card Based Certification

In the most straightforward of cases, a union may canvas employees at a non-unionized workplace to seek their support for certification. Those employees who are willing may indicate their support in writing, typically by signing a union card.  If more than 55% of employees agree to join the trade union, the union can apply to the Ontario Labour Relations Board (“OLRB”) for automatic certification.  If at least 40% of employees indicate their intention to join the trade union, the union can apply to the OLRB for a representation vote amongst all employees who perform work within the proposed bargaining unit.  Who may vote and who counts toward the percentage tally differs in the construction industry where only employees performing work within the scope of a proposed bargaining unit who were at work on the day of the application are eligible to participate.  

Unfair Labour Practices

Challenges may arise in determining whether certification or decertification reflects the true wishes of employees and has been achieved in accordance with the Labour Relations Act, which prohibits unfair labour practices such as interference and intimidation and coercion by both employers and unions.  This does not prohibit the union from trying to convince employees that certification is beneficial or employers from discussing the potential impact of certification upon employees provided the employees do not fear reprisal from either party.  Should the OLRB find that an unfair labour practice has occurred, they may order certification or decertification, even if a vote did not reflect that outcome.

Decertification / Raids 

Once certified, the opportunity for decertification or a raid by another union presents itself in what is called an “open period,” effectively the three months before a collective agreement (typically three years) is set to expire or, in the case of a longer term collective agreement, in the last three months of the third year, and the last three months of each subsequent year as well as the final three months of the collective agreement. If there is no collective agreement within a year of certification, opportunity arises sooner for decertification or a raid by a competing union.

In the construction industry, the open period is for two months preceding the expiration of a collective agreement, many of which are province-wide.

In any decertification action, it is critical that employees act independently of their employer in filing an application. In a raid, where another union seeks to assume bargaining rights, the raiding union would file the application.  In each case, an employer would be a party to the proceedings.

Related /Single Employer and Sale of Business

 Bargaining rights may also attach through a related employer (single employer in construction) or sale of business declaration sought by a union. In the former, the Labour Relations Act seeks to prevent the loss of bargaining rights where an employer tries to shut down a certified business only to open up a new business doing the same thing, but without adhering to the collective agreement.   It will also capture situations where an employer attempts to divert its work to a non-unionized business that it has an interest in.

The sale of business provisions ensure that bargaining rights are preserved when a business is sold and continues to carry on in a similar capacity. It typically does not create new bargaining rights unless a new employer mixes employees of its new unionized business with employees of a similar non-unionized business, or transfers work between the two.

Need Guidance?

The information above is to provide a general outline only. There are many nuances involved in the above processes, and many more scenarios that the Labour Relations Act contemplates. It’s important to know that the OLRB maintains strict and tight timelines to respond, so it’s critical to move quickly if you receive notice of a proceeding.  The OLRB itself offers helpful information bulletins http://www.olrb.gov.on.ca/english/iblist.htm surrounding different processes. Please also note that the Canadian Industrial Relations Board governs labour relations in federally regulated industries in Canada and has its own rules and processes.

If you are an employer or employee facing OLRB proceedings or seeking to commence them, we would be pleased to provide more specific guidance and assist you in navigating the process.

Employer criminally charged over workplace safety obligation

On January 13, 2014, the Ontario Ministry of Labour released a decision regarding a death due to workplace safety violations. After two directors of the company pleaded guilty to safety violations in the workplace, the Ministry sentenced them to jail and fined the company. This serves as a sobering reminder to employers that they need to be on top of their obligations and responsibilities set out in the Occupational Health and Safety Act. If you would like to have a complete review of your workplace policies to ensure that your company is complying with all its obligations, please don’t hesitate to contact me here.

Here is the entire article published by the Ministry of Labour:

BRAMPTON, ON – New Mex Canada Inc., an importer and retailer of furniture and accessories, has been fined $250,000 and two of its directors, Baldev Purba and Rajinder Saini, have been jailed for 25 days each after pleading guilty to safety violations that led to the death of a warehouse worker. 

On January 18, 2013, a worker was moving merchandise in the workplace at 286 Rutherford Road South in Brampton, using a combination forklift/operator-up platform called an order picker. The order picker had been modified and had an additional platform supported by the forks that was tack-welded to the manufacturer-equipped operator platform. The added platform did not have a guardrail around it and the worker using it was not wearing fall protection or safety shoes.

The worker was found on the floor and was pronounced dead; the cause of death was later determined to be blunt force trauma to the head.

A Ministry of Labour investigation found multiple violations of Ontario’s Occupational Health and Safety Act and of Ontario Regulation 851, which covers industrial workplaces. There had been no health and safety training of the workers in the warehouse and workers indicated that they were not provided with fall protection equipment. Ministry of Labour inspectors saw more health and safety hazards in the workplace after the fatality occurred.

Section 85(a) of Regulation 851 (known as the Industrial Establishments Regulation) requires that workers who may fall more than three metres must wear a safety belt or harness (also known as fall protection equipment). The Occupational Health and Safety Act requires employers to ensure that the safety measures prescribed by Regulation 851 are carried out in the workplace.

Purba and Saini were both charged with failing as  directors of New Mex Canada to take reasonable care that the corporation complied with the Occupational Health and safety Act and with Regulation 851. Both pleaded guilty and each was ordered to serve 25 days in jail by Justice of the Peace C. Jill Fletcher, to be served on weekends. Both were ordered to take a health and safety course within the next 60 days. 

New Mex Canada Inc. pleaded guilty to failing to provide information, instruction and supervision to a worker regarding fall protection and/or working from a height. The company also pleaded guilty to failing as an employer to ensure the safety measures required by law were carried out, and was fined $250,000.

In addition to the fine, the court imposed a 25-per-cent victim fine surcharge as required by the Provincial Offences Act. The surcharge is credited to a special provincial government fund to assist victims of crime.

-Source: Ministry of Labor website

Companies will be fined under Criminal Code if found liable for worker injury or death

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Metron Construction plead guilty to the deaths of 4 workers in 2009. Credit: Carlos Osorio / Toronto Star File Photo

Workers safety is paramount – see the below article written by  Lisa Stam on her blog “Employment and Human Rights Law in Canada” for a breakdown of a recent decision by the Ontario Court of Appeal regarding the safety of workers:

Criminal Code Convictions for Worker Safety

Yesterday, the Ontario Court of Appeal tripled the fine awarded against a construction company that failed to ensure the safety of its workers:  R v Metron Construction.

Facts

In the late afternoon of December 24, 2009, five workers who were restoring the concrete balconies of a high rise in Toronto fell from a fourteenth floor swing stage platform. Four of the five workers died, the fifth worker who survived suffered serious permanent injuries. The sixth worker – the only one who was properly attached to a safety line – did not fall and survived uninjured.

Details of the original judgment are set out in the July 2012 trial judgment of R v Metron Construction Corporation.

Criminal Conviction – Trial Judge

The company was the first in Ontario to be charged and convicted under the new Criminal Code provisions that make it a criminal offence to direct a worker to perform a task without taking reasonable steps to prevent bodily harm to that worker. See sections 217.1, 219 and 22.1(b) of the Criminal Code for the specific provisions upon which the crown relied.

The trial judge fined the company $200,000 plus the Victim Fine Surcharge of 15% or $30,000, which was over 3 times the net earnings of the business in its last profitable year. The trial judge concluded that the penalty was “the appropriate disposition in this case and should send a clear message to all businesses of the overwhelming importance of ensuring the safety of workers whom they employ.”

Court of Appeal Triples the Fine

Yesterday, the Court of Appeal tripled the penalty, fining the company $750,000. The Crown had sought a fine of $1 million, arguing that the court should not restrict itself to the range of penalties under the Occupational Health and Safety Act. The Court agreed with the merits of that argument:

[87] Section 718.1 of the Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. A range of sentences established under the OHSA regulatory regime does not reflect the gravity of the offence of criminal negligence causing death. The OHSA cases that attracted fines of between $115,000 and $450,000 and that were relied upon by the sentencing judge are of limited assistance.

The Court also concluded that the penalty for such a serious offence with such a tragic consequence must be increased to ensure deterrence:

[115] A sentence consisting of a fine of $200,000 fails to convey the need to deliver a message on the importance of worker safety. Indeed, some might treat such a fine as simply a cost of doing business. Workers employed by a corporation are entitled to expect higher standards of conduct than that exhibited by the respondent. Denunciation and deterrence should have received greater emphasis. They did not. The sentence was demonstrably unfit.

The Court of Appeal has sent a very clear message to employers: worker safety is paramount, and companies will pay dearly under the Criminal Code if found liable for worker injury or death.

-Article written by Lisa Stam.

Colleen Hoey is an Ottawa-based lawyer practicing in the areas of Employment Law, Human Rights Law, and Civil Litigation at Mann & Partners, LLP. The articles on this blog are not intended to provide legal advice. Should you require legal advice, please contact Mann & Partners, LLP at 613-722-1500 or fill out our form to be contacted within 24 hours.