May 6, 2019

BC Labour Code amendments: A foundation to strengthen worker rights?

Photo: WKanadpon / Shutterstock

The first comprehensive review of BC’s Labour Code in over a quarter of a century has resulted in changes to the law to strengthen protections and collective bargaining rights for workers.

In addition to requiring a review of the Code every five years, the changes will:

  • Strengthen successorship rights for workers in identified industries that are vulnerable to contracting out;
  • Restrict existing timelines for union raids; and
  • Remove education as an “essential service” in order to reflect the constitutionally protected right to strike for unionized workers.

These changes are good news for workers already employed in unionized environments and will serve to strengthen the power and stability of unions in the workplace.

Absent from the bill, introduced in the BC Legislature on April 30, are changes that would enhance access to unionization in new workplaces. This means that for the majority of BC workers employed in non-union environments, the rights and protections they might seek to benefit from through unionization under the Code will largely remain out of practical reach. Yet, the reforms needed to make meaningful change are within reach and many were discussed during the review process.

Currently, only 15% of employees in the private sector are unionized in BC compared with 77% in the public sector.

These changes are good news for workers already employed in unionized environments. Absent from the bill, however, are changes that would enhance access to unionization in new workplaces.

Over the past decades, the labour market has gradually shifted away from standard employment (full-time and full-year work) towards service and technology sectors, which have been documented as contributing to the erosion of employment rights and protections. Workers in these kinds of sectors would benefit from unionization to enhance job security and working conditions through collective bargaining. However, they often face difficulty certifying a union in the workplace. Obstacles to unionizing in the private sector in BC are multifaceted, including the requirement to unionize by worksite and the two-step process for certifying a union, neither of which were addressed in the announced changes.

The certification process is a particularly hot-button issue with labour advocates pushing for a return to card-check certification, which would allow workplaces to apply for certification by demonstrating sufficient employee support through signed union cards. The current rules require both this step and a secret ballot vote, which takes longer, requires more resources and provides a greater opportunity for employer interference in the process. Proponents of the card-check system thus see it as a more effective and efficient vehicle for unionizing a workplace and one that also better guards against the potential for employer interference.

The panel tasked with reviewing the BC Labour Code did not reach consensus on the certification issue. While two of the three panelists ultimately recommended retaining the secret ballot voting system, they did so on the condition that there be in place “sufficient measures to ensure the exercise of employee choice is fully protected and fully remediated in the event of unlawful interference.” Although the announced amendments include complementary protections, such as by shortening the length of time for a vote to take place from 10 days of the application date to five days, these are not likely to be sufficient measures to protect employee choice, particularly in precarious workplaces where subtle coercive tactics by an employer can be easily deployed and difficult to redress.

While the new Labour Code amendments aim to provide greater protection to workers who are trying to certify a union, the failure to address certification rules is a serious shortcoming for BC workers who would greatly benefit from unionization and yet face difficulty certifying under the two-step process.

Other provinces in Canada allow for card-check certification if a majority of employee support is demonstrated with the option of holding a secret ballot vote if there is less than majority support. This optional model provides greater access to and ease of union certification where there is demonstrable support (such as at 60% in New Brunswick and 65% in Manitoba) while also preserving optional vote procedures where support is less, typically above 40%. This optional or dual model is one that the BC government ought to revisit as it moves ahead with labour law reform.

Further changes that will increase access to unionization through certification rules and collective certification and bargaining are needed for BC’s workers, especially those in precarious sectors.

In addition to maintaining the status quo on the certification process, the announced changes are silent on the issues of sectoral certification and bargaining. In many sectors that would greatly benefit from increased unionization rates (such as retail, food services, hospitality and building services) the requirement to certify a union by individual worksite makes unionization too costly and resource-intensive. Labour advocates have called on the BC government to allow for sectoral organizing and bargaining, which would allow a group of worksites to organize together if they meet certain parameters. The panel reviewing the Labour Code recommended that the BC government examine this issue in greater depth, possibly with an independent commission.

The announced changes do extend successorship rights to certain identified industries, which should prevent decertification of a union when part of a business is contracted out or where contracts are retendered. This offers some protection to workers in precarious jobs (such as building services) who are already unionized, however, on its own, the extension of successorship rights does not go far enough. Additional changes that create more and better access to organizing and certifying a union in the first place are needed. The option of sectoral organizing and bargaining would create space for workers in precarious industries who would arguably benefit greatly from unionization to enhance their working conditions and job security.

Models for sectoral certification and bargaining already exist in Canada. In addition to allowing sectoral certification and bargaining in the construction, health care and film industries, proposals to create specific frameworks for sectoral certification in underserved industries (like retail) have been put forth in BC in the past.

Overall, the amendments to BC’s Labour Code will strengthen existing unions in the province and also lay the groundwork for improving access to unionization in new workplaces. Ultimately, however, the announced changes on their own do not go far enough to improve access and as a result, for the vast majority of BC workers in non-unionized workplaces (mostly in the private sector), unionization and coverage rates will likely remain low. Further changes that will increase access to unionization through certification rules and collective certification and bargaining are needed for BC’s workers, especially those in precarious sectors.