What does "Termination of Bargaining Rights" mean?
Termination of Bargaining Rights, also known as "decertification", essentially means getting rid of a union.
It should come as no surprise, that employers do not want unions. That said, many employees feel the same way; particularly those who are unionized. With all the protections given to employees under Canadian labour and employment laws, many employees perceive unions to have declining value. Many more employees see a union as merely big business taking monthly dues and, giving very little in return. Of course, not all unionized employees feel this way, but for those who do, there is a way out of the union. That said, there are specialized rules to follow for employees who wish to terminate bargaining rights to get rid of their union.
The first thing of note is, usually only bargaining unit employees who are members of the union can get rid of the union through this process. With some exceptions, if an employee is not a member of the union, for the most part, he or she can have no say in getting rid of it.
Can an employer take any steps to terminate bargaining rights?
Management can in no way be involved in the termination of bargaining rights. Management cannot provide financial aid, advice or assistance of any kind to employees who wish to get rid of the union. To do so, would constitute an "unfair labour practice" and the Labour Board would refuse to entertain the application for decertification.
The process of getting rid of a union can appear daunting. It is. It is so much easier for employees to unionize than it is to get rid of the union. Special rules set out within labour relations legislation (for example the Ontario Labour Relations Act), establish the framework required for the termination of bargaining rights.
The first thing to recognize is, the termination of bargaining rights can only occur at set times during the life of a collective agreement. Usually, this timeframe is called the "Open Period". In Ontario, there is a distinction here between non-construction and construction industries.
What is the process of decertification in non-construction industries?
In businesses like manufacturing, food services, colleges etc., an application for the termination of bargaining rights can only occur during the Open Period. Usually, this is in the last three months of the term of a three-year collective agreement. The law also provides other opportunities to get rid of a union. For example, if a union has been certified to represent the employees of a company, and there is still no collective agreement entered into after one year, employees within the bargaining unit can apply subject to certain requirements, to terminate bargaining rights. There are also other opportunities to decertify if a collective agreement is for a term greater than three years.
For employees wishing to terminate the bargaining rights of their union, they must collect evidence that at least 40% of employees within the bargaining unit want to get rid of the union. Usually, each employee will sign a card that says they no longer wish to be represented by their trade union. Sometimes this will be done by way of petition. It is important however that employees do not sign these cards on company time, in front of management, or use any of the company's resources to assist them.
In Ontario, the Labour Board has a specific application process for the termination of bargaining rights. Provided that the employees wishing to decertify include the necessary evidence that at least 40% do not want to be represented by the union, the labour board will order a secret ballot vote to take place usually within 5 business days of the application. The vote takes place in most cases at the company premises, and it is carefully monitored by a Labour Relations Officer appointed by the Labour Board to maintain both legitimacy and secrecy. If over 50% of the employees vote in favour of getting rid of the union, the Labour Board will terminate its bargaining rights.
What is the process of decertification in construction industries?
The termination of bargaining rights is marginally similar in the construction industry, at least to the extent that 40% of employees must give evidence of their desire to decertify, the vote will usually take place after five days, and bargaining rights will be terminated if more than 50% of employees vote in favour of getting rid of the union. That is where the similarities end.
First, the Open Period is only in the last 2 months of the collective agreement.
Second, only those bargaining unit employees who were at work on the date of the application are allowed to have their cards and petitions considered and, to take part in the vote. People who were not at work do not have a right to get involved in the process, but either way, they will be subject to the final outcome.
Third, those employees must be doing construction work in the sector subject to the collective agreement, on the application date. In other words, if the collective agreement is what is known as an ICI Collective Agreement (Industrial-Commercial Institutional), and the employees on the application date were doing residential construction, the application will fail.
What can Hyde HR Law do for my company?
The termination of bargaining rights is a complex process. For employers and employees, we recommend expert legal advice throughout, in order to get it right the first time. Hyde HR Law's attorneys are specialists in this area. We have helped countless employers and employee groups by successfully guiding them through this process. Contact us today.
