Many BC tourism operations have employees represented by trade unions, and others have faced organizing drives. For these employers, the BC Labour Relations Code is a critical piece of legislation. Even those employers with no union experience should know the law regarding the unionization of workplaces.
The British Columbia Labour Relations Code (LRC) governs the establishment of union representation, collective bargaining and many other aspects of the relationship between employers, their employees and unions.
The LRC also establishes the BC Labour Relations Board (the Board) as an independent administrative tribunal with the authority to administer the LRC’s provisions. It is the Board’s responsibility to decide all matters covered by the LRC.
The LRC imposes a number of duties on the Board and other people who exercise powers and perform the duties set out in Section 2, including:
- recognizing the rights and obligations of employees, employers and trade unions under the LRC;
- fostering the employment of workers in economically viable businesses;
- encouraging the practice and procedures of collective bargaining between employers and trade unions as the freely chosen representatives of employees;
- encouraging co-operative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and developing a workforce and a workplace that promotes productivity;
- promoting conditions favourable to the orderly, constructive and expeditious settlement of disputes;
- minimizing the effects of labour disputes on persons who are not involved in those disputes;
- ensuring that the public interest is protected during labour disputes; and
- encouraging the use of mediation as a dispute-resolution mechanism.
Note that a number of significant amendments to the LRC were made in 2019, including:
- Significant restrictions on employer speech during union organizing campaigns;
- Reduced timeframe for certification votes, down to five business days from date of application;
- Lowering the bar for “remedial certification” (i.e., without a vote) when an unfair labour practice has been committed;
- Extending the “statutory freeze” (during which an employer is very restricted from altering terms and conditions of employment) following certification, from four to twelve months;
- Making it easier for unions to have first collective agreements imposed by arbitration;
- Imposing union successorship (i.e. the transfer of union certification and existing collective agreement) upon the retendering of contracts in the health, cleaning, security, food services and bus transportation sectors, retroactive to April 30, 2019;
- Imposing new timelines and decision requirements on the expedited arbitration process under the Code, that significantly erode a party’s right to a fair hearing and a reasoned decision; and
- Education has been eliminated as an “essential service”.
FUNDAMENTAL RIGHTS UNDER THE CODE
Every employee is free to be a member of a trade union and to participate in its lawful activities. Employers are equally free to be members of employers’ organizations. One of the LRC’s primary purposes is to protect these fundamental freedoms, and it prohibits conduct that may interfere with anyone’s ability to exercise these freedoms. Such conduct is deemed to be an “unfair labour practice.”
Employees who wish to be represented by a union may seek certification. Certification provides a union with the right to bargain with the employer on behalf of the employees it represents (the bargaining unit) and, as the employees’ exclusive bargaining agent, to enter into a collective agreement that sets out the terms and conditions of their employment.
WHO IS COVERED?
The LRC applies to all employees and their employers in BC, including dependent contractors who are a party to a collective agreement, subject to certain exceptions.
Individuals who perform the functions of a manager or superintendent, or who are employed in a confidential capacity related to labour relations or personnel, are excluded from the collective bargaining provisions. However, such exclusions are applied very narrowly. For more information concerning managerial and confidential employee exclusions, see Labour Relations Board – Inclusion In and Exclusion from Bargaining Units.
In addition, labour-management relations for people employed in the provincial public service are covered by the Public Service Labour Relations Act rather than the LRC. Similarly, employees in the federal jurisdiction are covered by federal legislation (the Canada Labour Code).
It is important to note that employers who are not unionized, and thus not a party to a collective agreement, should not ignore the LRC’s provisions. There are many provisions that are important to non-unionized employers. In particular, the LRC governs and protects the right of non-union employees to seek unionization. It also proscribes certain employer behaviour in the context of a union-organizing drive, the certification process and collective bargaining. Should your employees seek union representation, it is critical that you understand the applicable provisions of the LRC in order to avoid running afoul of the law in this area.
SCOPE OF THE CODE
The LRC covers a variety of topics, including rights, duties and unfair labour practices; acquisition and termination of bargaining rights; collective bargaining procedures; strikes, lockouts and picketing; essential services; mediation; and arbitration procedures.
Not surprisingly, there are some complex regulations, exclusions and interpretations that can cause misunderstandings and unintentional breaches of the law. It is not possible to provide a comprehensive explanation of each of the provisions on this website. Accordingly, employers are encouraged to seek legal advice prior to making important decisions in this area.
Nevertheless, the board provides a variety of valuable resources on its website in the form of a Code Guide, as well as various interpretative guidelines and bulletins. Visit their website for more information: Labour Relations Board – British Columbia.
Information provided by Ryan Anderson, an employment lawyer with Mathews Dinsdale & Clark LLP. The information provided in this article is necessarily of a general nature and must not be regarded as legal advice. For more information about Mathews Dinsdale & Clark LLP, please visit mathewsdinsdale.com.