Aug 22, 2018

Three ways BC can make it easier for precarious workers to unionize

By and

The BC Labour Relations Code is being reviewed for the first time in over 15 years. Since the last comprehensive review, which took place in 2003, workers’ rights under the Code have been continuously eroded. The current review presents an important opportunity to reverse this trend by improving access to unionization for workers across the province, especially in underrepresented industries like food services and retail.

Three central provisions of the current Code inhibit access to unionization: the requirement to unionize by worksite rather than sector, the prolonged two-step certification process, and the overbroad scope of protection given to employer speech.

These provisions create significant barriers, especially for workers in precarious jobs, which are characterized by non-standard employment (part-time, casual or temporary work), low wages, a lack of benefits, poor working conditions and job insecurity—and which are disproportionately taken up by women, racialized minorities, recent immigrants and other marginalized individuals. While precarious work is concentrated in particular industries such as retail, food services and hospitality, eroding job quality is a growing phenomenon across a wide range of jobs and sectors.

Workers in precarious jobs are more likely to experience a violation of their rights at work and less likely to complain or seek legal remedy.

Workers in precarious jobs are more likely to experience a violation of their rights at work, and less likely to complain or seek legal remedy, which makes unionization a valuable tool to improve working conditions and increase job security. However, the above-mentioned provisions of the Code mean the choice to unionize is practically out of reach for these workers.

This article suggests key improvements the current review process might consider to increase access to the Code for workers in precarious jobs: expanding the option for sectoral certification, reinstating a card-check certification system, and narrowing protections for employer speech during organizing campaigns.

Enabling unionization by sector

Currently, in order to form a union, workers in the private sector must organize by individual worksite, a lengthy and costly endeavour. The large number of part-time, temporary or casual workers and the high employee turnover rates characteristic of many precarious workplaces create additional challenges for unionizing these worksites, and increase the risk of decertification (de-unionization). In addition, loopholes in the Code enable the use of contract flipping and subcontracting as ways to decertify individual worksites, often with the consequence of worsening working conditions.

Another option exists. Workers in the construction industry and public sectors such as health care are organized by sector. This model, “sectoral certification,” means that a union, and collective agreement, will cover workers in a labour market sector across a number of worksites within a defined geographic area. A model of this kind, designed specifically for underrepresented industries, was proposed by a BC special advisors’ committee in 1992, and could provide a foundation for reform now. Allowing unionization by sector in precarious industries would mitigate the negative impact of high turnover rates at individual worksites, increase union stability over time, and expand access to unionization in sectors that are known to face significant difficulties under the current legal framework.

Reforming the certification process

In addition to expanding sectoral certification under the Code, the process to certify a union should also be changed to improve access for workers.

The current legislation in BC requires a “two-step” certification process. First, workers must sign a membership card demonstrating sufficient support for the union, currently set at 45% of eligible employees. Then, once the requisite level of support is demonstrated, the union must apply to the BC Labour Board for a secret-ballot certification vote to take place. At this point, the employer is notified of the impending vote, which is generally required to take place within 10 days of the application. The two-step certification process creates barriers to successful unionization due to the length of time required to complete both steps, and because it creates a window of time where employers can actively oppose unionization and potentially interfere with the organizing campaign.

The general use of “card-check” certification, which eliminates the second step of requiring a certification vote, is available in some form across most of Canada: in the federal jurisdiction, Alberta, Quebec, New Brunswick, Prince Edward Island, Newfoundland and Labrador, and the territories. In BC, card-check certification was an option from 1993 to 2001, and required that 55% of eligible employees signed cards. Reinstating this system would decrease the length of time it takes to unionize a workplace. The shorter timelines associated with card-check certification would also reduce the potential for employer interference in the organizing campaign.

The two-step certification process creates barriers due to the length of time required, and because it creates a window of time where employers can actively oppose unionization.

Reducing employer interference

Employer interference during an organizing campaign can negatively influence employees’ choice of whether to support a union. Providing adequate protection against employer interference is necessary for labour law to be effective. BC’s Code no longer does this sufficiently due, in part, to a 2002 change to a section of the Code that protects employer speech during organizing campaigns.

Prior to 2002, the Labour Relations Code allowed employers to communicate facts or opinions “reasonably held with respect to the employer’s business.” In 2002, this was expanded to allow for communications on matters “relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion.” This means that employers can now engage in active anti-union messaging during an organizing campaign in the workplace.

Employer communications that actively oppose unionization, and yet do not “use intimidation or coercion” as a means to communicate those opinions, may nonetheless be perceived as such by workers, especially in precarious workplaces where employees have a high degree of job dependency and often already experience violations of their legal rights. This makes it a challenge to discern what properly falls within, versus outside, the protections afforded to employer communications under the Code.

The pre-2002 text used in the Labour Relations Code should be restored. This text allows for employer communications where there is a legitimate business purpose, meaning that it enables reasonable, fact-based communications that would support informed employee choice during a union organizing campaign. And, it more properly limits anti-union messaging and campaigns against union certification by an employer.

Barriers to change

Unsurprisingly, the review panel heard from many employer and business associations that advocate against these proposed reforms. These associations argue that the current legal framework under the Labour Relations Code strikes a good balance in protecting business and employee interests, and that the current provisions related to unionization protect employee choice and autonomy.

First, these associations claim that sectoral certification would undermine employers’ rights to negotiate directly with employees, and would inhibit employee choice because not all employees at all workplaces in a sector may want to unionize. Second, they claim that a card-check certification system would also undermine employee choice by enabling union advocates to put undue pressure on employees during an organizing drive, and that the secret ballot system better protects unbiased choice in voting. And finally, these associations claim that the current protections for employer speech should be maintained, as this allows employers to give important input during an organizing campaign and provides a counter-balance to pro-union messaging in the workplace.

The current Code undermines the foundational purpose of labour law to ameliorate the inequality of bargaining power between employer and employees, and to give workers power through collective voice and action.

The need to respect employee choice and autonomy, and to ensure that voting outcomes are the result of unbiased selection, are important considerations. But the proposed reforms detailed above are not at odds with these considerations. In fact, the proposed reforms to reinstate card-check certification, expand the option for sectoral certification, and limit problematic employer communications are all rooted in a need to promote meaningful choice and autonomy for workers under labour law. Further, while employer and business associations noted concerns about unions placing undue pressure on workers, prohibitions against unfair labour practices under the Code equally apply to unions as to employers, and, importantly, empirical evidence suggests that this issue is far more common in respect of employers than unions.

As employers hold tremendous power over workers, it is critical that labour law offer sufficient protection from employers’ influence. This, in turn, promotes worker autonomy and allows workers to engage in unbiased choice about whether or not to form a union. In short, the rigid and difficult certification procedures under BC’s current Code are not the only ways to ensure respect for employee choice and autonomy, nor is there any evidence to suggest that they are an effective means to that goal in the first place.

Efforts to give equal weight to business interests and worker rights fundamentally mischaracterizes the purpose and function of labour law. The current Code undermines the foundational purpose of labour law to ameliorate the inequality of bargaining power between employer and employees, and to give workers power through collective voice and action. The review of BC’s Labour Relations Code is an important opportunity to engage in meaningful reform to ensure that labour law does its job to advance workers’ rights and interests. As the review moves ahead, attention should be paid to reforms that will enhance access to unionization for precarious workers. Those discussed here—expanding sectoral certification, allowing a card-check certification system, and narrowing the protection for employer speech—will help make the Code a more effective tool for advancing workers’ rights through access to unionization.