On May 6, 2024, the NDP government introduced Bill 37 – "The Budget Implementation and Tax Statutes Amendment Act, 2024" for the first reading. This innocuous sounding bill contains a variety of amendments to legislation affecting elections, Manitoba Hydro, among other things beyond budget and taxation. Schedule "D" of the bill contains substantive and important amendments to The Labour Relations Act.
These amendments have a BIG impact on the labour relations landscape in Manitoba, providing significant union friendly changes in organizing and labour disputes. There are also changes to "essential services" requirements during strikes or lockouts that can affect workplaces beyond the scope of the current government and healthcare coverage.
Key Amendments
- automatic certification without a vote based on "more than 50%" membership
- representation votes on certifications limited to "at least 40% but 50% or fewer" support levels
- a complete ban on the use of replacement workers during a strike or lockout
- repeals current essential services legislation for healthcare, government, child and family services agencies
- expands the definition of essential services to potentially cover any workplace to the extent necessary to
(a) prevent a threat to the health, safety or welfare of residents of Manitoba;
(b) maintain the administration of justice; or
(c) prevent a threat of serious environmental damage.
These amendments have been expected by the NDP government but were initially blocked by the Progressive Conservative opposition through procedural measures at the Legislature.
This is the first of three articles addressing the changes to applications for certification, the replacement worker ban and the essential services changes. This article will focus on applications for certification.
Card-Check Certification
An application for certification is at the core of the labour relations system in all Canadian jurisdictions. It is the means by which a union seeks the right to become the exclusive bargaining agent for a group of employees. A successful certification changes the dynamic of the workplace for the indefinite future. In a certified workplace, an employer must bargain terms and conditions of employment with the union, rather than with individual employees.
The current system in Manitoba requires that a union file a minimum of 40% support for its proposed bargaining unit. If that threshold is met (whether 40% or 100%), the Labour Board conducts a secret ballot vote within seven days of the filing date of the application.
When this new legislation goes into effect, a union that applies for certification will be certified if it has the support of "more than 50% of the employees" in the bargaining unit. This eliminates the requirement of a secret ballot vote. There would still be a secret ballot vote if the union support cards are at least 40% of the employees in the proposed bargaining unit but not more than 50%.
The Labour Board may also order interim certification pending a dispute about the appropriate scope of a bargaining unit or particular employees who ought to be included or excluded if it would not affect the majority support level.
Automatic certification with a majority of card-based union drive systems lines up Manitoba with the system for employers in the federal jurisdiction and Quebec and is similar to the system in British Columbia, which requires slightly greater than simple majority support.
Unions argue that card-based certification is meant to prevent employer intimidation before voting and to address an imbalance of power in the employee-employer relationship. Employers take the view that certification without a vote is anti-democratic and that this is the "pay-off" to the unions and labour organizations that have had special delegate status in the Manitoba New Democratic Party.
Regardless of your perspective, there will be big changes.
The last version of card-based certification in Manitoba was established by the NDP government led by Premier Doer. The threshold at that time was 65% for certification without a vote. Anecdotal information and experience with that process suggested strongly that if a union was able to obtain 65% support, the percentage of successful applications did not differ from applications determined by secret ballot vote. The Progressive Conservative government repealed the 65% threshold in 2016, enacting a secret ballot vote requirement on all applications for certification (current system).
What might happen when these amendments go into effect?
Likely More Applications for Certification
Recent experience in British Columbia is useful to note. Part-way through 2022, the BC NDP government enacted an automatic card-check certification based on a 55% support threshold (vote with a minimum of 45% and up to 55% support). The British Columbia Labour Relations Board's 2023 annual report reported that 2022 showed an increase in applications for certification and that 2023 was "significantly above the Board's 25 year average" with an over 40% increase in applications for certification compared to 2022 (this includes some applications carried over from 2022). The Chair of the BC Labour Relations Board stated: "The significant increase in certification applications and the size of the bargaining units sought has taxed the Board's staff and appointees."
In addition to a potential increase in applications for certification, there may be additional litigation over bargaining unit scope and employee eligibility. Our experience with the previous card-check system at 65% was that the automatic certification threshold resulted in some attempted gerrymandering of bargaining units by unions to avoid a vote. Similar conduct may be attributed to some employers who attempted to gerrymander to bring support within the range of support requiring a representation vote or to render the union drive unsuccessful altogether.
It is worth noting that this may lead to delays in matters before the Labour Relations Board if their workload substantially increases unless the government provides additional resources to deal with the increased workload.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.