A fundamental change to the employer-employee relationship happens when there is a certification of a union as the exclusive bargaining agent for employees at the workplace. Once an employer receives an application for certification from the workforce, both the union and employer’s next steps can become crucial.
In most Canadian jurisdictions, depending on the nature of the industry, certification of a union can occur by either submitting a sufficient number of membership cards to the labour relations board or by winning a representation election. In Ontario (with the exception of the construction sector), a representation election is mandatory, although the process can be relatively expedited.
Once an employer has received an application for certification, they have very short deadlines to respond. In the cases where the employer fails to respond, in Ontario, the Labour Relations Board will consider the application for certification based only on the union’s filings. The decision made by the Board will bind the employer, regardless of their absence in the process.
A unionized employer no longer has the ability to negotiate the terms and conditions of employment individually with their employees. Rather, the terms and conditions are provided through a binding contract between the employer and union, known as the collective agreement [link to collective agreement].
Once a union is certified, then the collective bargaining phase starts. This phase must be done in “good faith” to ensure that there are genuine negotiations to create a collective agreement.
Similar to certification, in Ontario the Labour Relations Board may cancel a certification at any time, given that certain circumstances are met. A de-certification occurs where the majority of employees no longer support the union, or in circumstances where they do not want the union to represent them anymore. Where it is shown that the union has in fact lost the support of the employees, then in these cases it may become possible to decertify the union under certain conditions.
An application for decertification of a union cannot be brought until certain statute-mandated timelines and conditions are met.
During the de-certification process, it is important that employers do not interfere with the procedure.
Employers are not allowed to initiate or assist employees in a decertification application.
Where there is improper interference by an employer or another person, a board can refuse to count a vote and dismiss the application for the decertification of a union. Similarly, when a group of employees seeks to organize, and the employer interferes, in Ontario, the Labour Relations Board has the power to certify the workplace without the vote taking place.
How can Zeilikman Law help?
As experienced labour lawyers, we can provide guidance and legal advice during difficult circumstances to try to avoid a duty of fair representation application being brought. Our experienced lawyers are also able to provide the legal advice and guidance that is needed during the process when a duty of fair representation application is made.
At Zeilikman law, we understand the difficulties that can arise throughout the complex process, from when an application is being filed to the full hearing if necessary.
Call us at 905-417-2227 to get started!