Bill 148 Overhauls Many of Ontario’s Outdated Labour Laws

Ontario’s Bill 148, Fair Workplaces, Better Jobs Act, 2017, has been the source of much controversy.

Polarized employer/small business groups and labour organizations continue to wrestle over whether the changes to Ontario’s employment standards laws will help or hurt workers, and the economy.

But nearly unnoticed in the mainstream debates are the significant changes to the Labour Relations Act that were also included in Bill 148. This law determines how workers get unionized. It also governs how unions and employers must conduct themselves, and how they’ll negotiate and administer a collective bargaining agreement.

Changes to Ontario’s labour law will also improve protection for workers in low wage, precarious work environments. The Labour Relations Act updates could be of even greater impact than the improvements to Ontario’s minimum employment standards.

By unionizing, groups of workers get access to the protection of collective agreements: they can negotiate better wages, benefits, retirement savings plans, and can insist on greater stability and predictability of work. Most importantly, unionizing also gives workers access to grievance and arbitration rights so that, regardless of their personal financial position, their union can insist on their workplace legal and contractual rights.

The Labour Relations Act amendments create an easier and more stable path to unionizing.

Here are some of the changes that will make unionizing easier, and that will better protect workers who do decide to unionize.

• Better participation in union organizing — The decision to join a union can be a difficult one, and one in which all workers should have a voice. As a result of Bill 148, a union that can demonstrate support from 20 percent of a non-union workforce may request a copy of the entire employee list. This allows the union to know how many workers there are (something that can be difficult to determine in a typical organizing campaign), and guarantees that all affected workers can join the conversation. Bill 148 protects the privacy of workers on the employee lists and ensures confidential information given to the union is used for the purpose of the organizing campaign at that workplace, and nothing else.

• Certification for contravention of the law — In the past, if an employer was found to have interfered with workers attempting to form a union, the Ontario Labour Board could consider several remedies. With the new amendments to the law, the only remedy available to the labour board when an employer significantly interferes an organizing campaign is to automatically certify the union. This should cause employers to be more cautious before deciding to interfere with an organizing drive.

• Just cause – One of the biggest concerns for workers considering unionizing is the possibility of discharge or discipline after certification, but before the union has established a collective agreement with a grievance procedure. Some protection was available before, but only in severe cases where “anti-union animus” could be demonstrated. Workers now have protection during the transition period following a union certification but before a contract is in place. “Just cause” protection allows the union to represent workers who face punitive discipline or discharge. CLAC had lobbied for this protection and was very pleased to see that it was inserted to Bill 148 during the consultation period.

• Card based certification – Card based certification is not new in Ontario, but is now being expanded beyond the construction industry to include workers who have typically had a hard time unionizing. It provides that once 55 percent of affected workers have signed union member cards, the union is certified and no secret ballot vote is necessary.  This more simple form of unionizing will now be available to home care workers, building service providers (cleaners and security guards), and temporary help agencies. These workers are not part of a conventional workplace “community.” They often work in isolation from their co-workers, and are unable to come together to succeed in a union organizing campaign.

• First Contract Arbitration – Workers unionizing for the first time have historically been able to call on the Labour Board to get involved in negotiations only if the Board believes that one side had committed a substantial or egregious unfair labour practice. With the amendments in Bill 148, any first collective agreement can be referred to the labour board for adjudication, if the parties have failed to conclude bargaining after mediation.

In setting out these changes to the Labour Relations Act, the government has provided under-represented workers with more effective tools to come together in order to secure the benefits, the influence and the collective strength that comes through collective bargaining.

For workers in precarious employment for whom union activity has always been difficult, these changes will make a world of difference.