Ontario’s labour minister says he’s restoring balance with the introduction of a labour relations bill last month, one that undoes some Conservative measures but stops short of restoring NDP-era pro-union rules.
Labour relations academic Frank Reid isn’t so sure balance is being achieved; but what he does see is a return to moderation after more than a decade of one-sided lawmaking by both the NDP and the Conservative governments.
Bill 144, introduced early last month, would:
•restore a card-based union registration system for the construction sector;
•remove the requirement for employers to put up posters telling employees how to decertify;
•remove the requirement for unions to disclose the names and salaries of union officials earning more than $100,000 a year; and
•restore to the labour relations board the power to remedy “the worst breaches” of labour law on the part of employers and unions by granting automatic certification or dismissing a certification application.
“Over the two previous governments, we’ve had a polarization of labour relations in Ontario, which is not desirable and healthy,” said Reid, referring to the legislative see-saw that started when the NDP government in the early 1990s passed pro-union measures such as banning the use of replacement workers. Then a Conservative government followed suit with anti-union laws, which replaced the card-based registration system with a vote-based system and eliminated remedial powers to grant automatic certification.
“Whether they were extreme or not is a subjective matter, but when the NDP made changes, every single change was pro-labour, and when the Conservatives came in, every change was pro-management,” said Reid, director of the Centre for Industrial Relations at the University of Toronto.
Reid considers it “sensible” that the labour relations board be restored with remedial powers, including the power to reinstate workers who lose their jobs during a certification drive.
The absence of such remedial power “defeats one of the main purposes of the labour relations board,” said Reid, adding that he would have liked to have seen the return to a card-based registration system as existed in Ontario until 1995.
At Queen’s University’s law department, assistant professor Sara Slinn said just as a card-based system gives unions a chance to pressure workers into signing cards, a vote-based system is intimidating to workers. “I don’t think a mandatory vote is the answer. It’s substituting one type of influence for another,” said Slinn, whose research has shown that the chance of success of certification applications falls by 22 per cent under the vote system.
“What we need is truly secret voting so that employees can express their wishes,” such as an off-site and web-based voting system, she said.
Slinn welcomes the restoration of remedial powers, because “right now, it’s a rational choice for employers to retaliate and to do unlawful things to disrupt an organizing campaign because the penalties are practically nothing,” said Slinn, noting that while automatic certifications are rarely granted as a remedy, the mere possibility of it keeps employers in line.
In Slinn’s view, many employment law firms would agree that remedial certifications are necessary. “I don’t think we want to encourage unfair labour practices, which are a distortion of what employees really want.”
On management’s side, however, employment lawyer Erin Kuzz, of Sherrard Kuzz, invoked workers’ democratic rights to protest the return of remedial powers.
“When you read the actual language (of the bill),” said Kuzz, “you could end up in a situation where you’ve got employees who are genuinely not interested in a trade union, and because of employer conduct, those employees get certified without having had a chance to express their wishes.”
Kuzz also took issue with the proposed elimination of the decertification poster, also enacted into law by the Conservatives. “My concerns are not with the removal of the posters themselves but with the language, the way it was drafted.” Rather than simply repealing the old law requiring the posters, the bill says employers complying with the old law 30 days after the repeal is in effect are said to contravene the law.
“The language of the bill isn’t simply, ‘Eliminate the poster and revert to the status quo.’ It’s, ‘If you keep it up, you’re violating the act,’” said Kuzz. She added that this language could easily be interpreted as, “if you explain to employees what their rights are under the act, you are violating the act. And to be frank, I don’t think this is much of a stretch.”
Stuart Johnston, vice-president policy and government relations at the Ontario Chamber of Commerce, said he was still polling the chamber’s 57,000 members on their reaction to the bill.
“It appears at first blush that some of the choices are taken away from employees as to whether they could be certified or not,” said Johnston. “A couple of months back, when changes were being made to mandatory retirement, the underlying premise was to provide more choices to employees. And now this seems to reverse that trend and remove that choice.”
While Kuzz said she has already heard from several large clients that they would reconsider before investing further in the province, U of T’s Frank Reid said he hears this kind of dire forecasting every time the law is changed.
“I don’t think there’s any evidence that Bill 40 (of the NDP) drove any employers away from Ontario or caused investment to plummet, so these little moderate changes that the Liberals are making won’t have any consequences.”
Labour relations academic Frank Reid isn’t so sure balance is being achieved; but what he does see is a return to moderation after more than a decade of one-sided lawmaking by both the NDP and the Conservative governments.
Bill 144, introduced early last month, would:
•restore a card-based union registration system for the construction sector;
•remove the requirement for employers to put up posters telling employees how to decertify;
•remove the requirement for unions to disclose the names and salaries of union officials earning more than $100,000 a year; and
•restore to the labour relations board the power to remedy “the worst breaches” of labour law on the part of employers and unions by granting automatic certification or dismissing a certification application.
“Over the two previous governments, we’ve had a polarization of labour relations in Ontario, which is not desirable and healthy,” said Reid, referring to the legislative see-saw that started when the NDP government in the early 1990s passed pro-union measures such as banning the use of replacement workers. Then a Conservative government followed suit with anti-union laws, which replaced the card-based registration system with a vote-based system and eliminated remedial powers to grant automatic certification.
“Whether they were extreme or not is a subjective matter, but when the NDP made changes, every single change was pro-labour, and when the Conservatives came in, every change was pro-management,” said Reid, director of the Centre for Industrial Relations at the University of Toronto.
Reid considers it “sensible” that the labour relations board be restored with remedial powers, including the power to reinstate workers who lose their jobs during a certification drive.
The absence of such remedial power “defeats one of the main purposes of the labour relations board,” said Reid, adding that he would have liked to have seen the return to a card-based registration system as existed in Ontario until 1995.
At Queen’s University’s law department, assistant professor Sara Slinn said just as a card-based system gives unions a chance to pressure workers into signing cards, a vote-based system is intimidating to workers. “I don’t think a mandatory vote is the answer. It’s substituting one type of influence for another,” said Slinn, whose research has shown that the chance of success of certification applications falls by 22 per cent under the vote system.
“What we need is truly secret voting so that employees can express their wishes,” such as an off-site and web-based voting system, she said.
Slinn welcomes the restoration of remedial powers, because “right now, it’s a rational choice for employers to retaliate and to do unlawful things to disrupt an organizing campaign because the penalties are practically nothing,” said Slinn, noting that while automatic certifications are rarely granted as a remedy, the mere possibility of it keeps employers in line.
In Slinn’s view, many employment law firms would agree that remedial certifications are necessary. “I don’t think we want to encourage unfair labour practices, which are a distortion of what employees really want.”
On management’s side, however, employment lawyer Erin Kuzz, of Sherrard Kuzz, invoked workers’ democratic rights to protest the return of remedial powers.
“When you read the actual language (of the bill),” said Kuzz, “you could end up in a situation where you’ve got employees who are genuinely not interested in a trade union, and because of employer conduct, those employees get certified without having had a chance to express their wishes.”
Kuzz also took issue with the proposed elimination of the decertification poster, also enacted into law by the Conservatives. “My concerns are not with the removal of the posters themselves but with the language, the way it was drafted.” Rather than simply repealing the old law requiring the posters, the bill says employers complying with the old law 30 days after the repeal is in effect are said to contravene the law.
“The language of the bill isn’t simply, ‘Eliminate the poster and revert to the status quo.’ It’s, ‘If you keep it up, you’re violating the act,’” said Kuzz. She added that this language could easily be interpreted as, “if you explain to employees what their rights are under the act, you are violating the act. And to be frank, I don’t think this is much of a stretch.”
Stuart Johnston, vice-president policy and government relations at the Ontario Chamber of Commerce, said he was still polling the chamber’s 57,000 members on their reaction to the bill.
“It appears at first blush that some of the choices are taken away from employees as to whether they could be certified or not,” said Johnston. “A couple of months back, when changes were being made to mandatory retirement, the underlying premise was to provide more choices to employees. And now this seems to reverse that trend and remove that choice.”
While Kuzz said she has already heard from several large clients that they would reconsider before investing further in the province, U of T’s Frank Reid said he hears this kind of dire forecasting every time the law is changed.
“I don’t think there’s any evidence that Bill 40 (of the NDP) drove any employers away from Ontario or caused investment to plummet, so these little moderate changes that the Liberals are making won’t have any consequences.”
