The North American model of labour relations is based on the National Labor Relations Act (NLRA), better known as the “Wagner Act”, enacted in the United States in 1935. The essential features of the Wagner Act model have been described as follows:
The Wagner Act model of labour relations permits a sufficiently large sector of employees to choose to associate themselves with a particular trade union and, if necessary, to decertify a union that fails to serve their needs. The principles of majoritarianism and exclusivity, the mechanism of “bargaining units” and the processes of certification and decertification – all under the supervision of an independent labour relations board – ensure that an employer deals with the association most representative of its employees.
In 1943, Ontario enacted the Collective Bargaining Act, which adopted certain Wagner Act features (such as a process for union certification). The Collective Bargaining Act was in effect for only six months before being displaced by the federal Wartime Labour Relations Regulations – Order in Council P.C. 1003 – which was introduced in early 1944 under the War Measures Act. This federal cabinet order contained a comprehensive framework for recognizing unions, which informs our laws to this day. Influenced by the Wagner Act, the central features of this framework were the following:
- non-managerial employees (other than excluded categories) were given the right to form and join unions;
- actions by employers against employees exercising the right to unionize were prohibited;
- labour boards, not courts, were authorized to certify unions as bargaining representatives for appropriate bargaining units, on proof of majority support;
- once certified, a union became the exclusive bargaining representative of all employees in the bargaining unit, whether or not they were union members;
- employers had to bargain in good faith;
- before resorting to economic sanctions, the parties were required to participate in government-sponsored conciliation; and
- during the term of a collective agreement, the parties could not engage in strikes or lock-outs, but instead were required to submit differences arising under the collective agreement to a neutral third party for grievance arbitration.
Following WWII, each province introduced its own legislation, based on the P.C. 1003 model. In 1950, Ontario introduced the Labour Relations Act. This legislation, building on P.C. 1003, established the legal foundation for collective bargaining in the province.
Post-war, labour relations in Canada tried to balance the interests of capital and labour within a free market system. The resulting legal compromises, sometimes controversial, provided the foundation for expanded workers’ rights. Generally the approach after 1950 featured incremental changes.
Initially, the Ontario Labour Relations Board (OLRB) had no enforcement mechanism, other than to grant consent to prosecute. In 1960, however, amendments to the Act gave the OLRB authority to order the reinstatement of employees terminated as a result of unfair labour practices. In 1970, further reforms included the union’s duty of fair representation and the OLRB’s accompanying remedial power to respond to complaints that a union had breached this duty. The level of support required for unions to obtain certification without a vote was increased at this time from 55% to 65%.
In 1975, legislative amendments included:
- a reduction in the membership evidence requirements for card-based certification (to 55% from 65%);
- provision for interim certification;
- the reversal of the legal onus in unfair labour practice complaints;
- the reversal of the evidentiary onus in successor and related employer applications;
- an expansion of the OLRB’s remedial authority in dealing with unfair labour practices and unlawful work stoppages; and
- an extension of bargaining rights to dependent contractors.
In the early 1990s, a former Chair of the OLRB observed that up to then “Ontario [had] never been the leader of labour law reform and has been content to let other jurisdictions do the experimentation. On the other hand, once it was clear that such experiments did not result in industrial chaos, Ontario was prepared to move reasonably quickly to adopt such reforms.”
Although prior to 1993, there were occasional amendments addressing specific issues, major changes to the LRA were introduced in 1993 and 1995 and, most recently, in 2005. Over this period, the most significant changes to the legislation have accompanied changes in the governing political party.
Following the 1990 election, the Ontario government announced that it planned to reform labour legislation to “ensure that workers can freely exercise their right to organize”. An outside committee of advisors representing management and labour, and chaired by a neutral arbitrator, was formed. The committee was asked to consider a number of issues within a one-month time frame. The management and labour representatives on the committee were not able to reach consensus. As a result, separate reports were filed. Subsequently, the government released a Discussion Paper on labour law reform, which included 41 preferred options for reform, as well as additional options that were set out for discussion, without indicating a preferred position. The Minister of Labour then held hearings in 11 cities, meeting over 300 groups and receiving 447 written briefs. Legislation was introduced in June 1992 and took effect in January 1993.
In the 1993 amendments, the key features were:
- the LRA’s coverage was expanded to include domestic workers and certain professionals (e.g., lawyers, architects, dentists);
- full- and part-time employees were to be included in the same bargaining unit at the time of certification;
- the OLRB was given the power to consolidate bargaining units of the same employer represented by the same union;
- expedited hearings were provided for complaints arising from discipline or discharge during organizing campaigns, and the OLRB was given the power to issue interim orders;
- limited access to third party property (e.g., shopping malls, industrial parks) for organizing and picketing purposes;
- access to remedial certification was expanded, whereby the union no longer had to demonstrate adequate collective bargaining support in order to trigger the remedy in circumstances where the employer, through a violation of the Act, had made it unlikely that the true wishes of the employees could be ascertained;
- the use of replacement workers was prohibited;
- employees were given just cause protection in cases of disciplinary action or dismissal before the effective date of a first collective agreement following certification;
- employees were given just cause protection during strikes, lock-outs, or the open period until a renewal collective agreement was in operation or until the union was decertified;
- employers and unions were required to bargain an adjustment plan in cases of mass terminations or plant closures; and
- after a strike, employers were required to reinstate returning employees to their former positions, giving striking employees priority over anyone who performed the work during the strike.
Following the change in government in 1995, the LRA was again extensively revised. A letter was sent to union and employer stakeholders asking them to respond in writing to a limited number of issues. Subsequent legislation repealed all of the substantive changes introduced in 1993 and introduced significant amendments including:
- replacing the card-based certification process by compulsory certification votes;
- lowering the threshold for employees to apply to decertify a bargaining agent;
- introducing requirements for strike and ratification votes; and
- removing successor rights for crown employees (restored in 2006).
Further Amendments in 1998 and 2000
In 1998, additional changes were made that:
- removed the OLRB’s power to grant remedial certification and remedial dismissal and added the power to order a second representation vote;
- permitted employers, in an application for certification, to challenge a union’s estimate of the number of employees in a proposed bargaining unit; and
- amended the OLRB’s interim order powers to oust the application of the Statutory Powers and Procedure Act.
In 2000, changes to the LRA were made that:
- required employers to post and distribute information on the decertification process;
- introduced union salary disclosure for all union officials and employees earning more than $100,000 annually;
- created a mandatory certification bar of one year, applicable to any union, with respect to the same jobs or positions;
- extended the “open period” for decertification;
- required the OLRB to deal with decertification applications before dealing with, or continuing to deal with, applications for first contract arbitration; and
- required separate strike and ratification votes in first contract situations.
After a change in government, amendments to the LRA in 2005 included:
- reintroducing the OLRB’s power to certify a union where an employer has violated the LRA during a union organizing campaign;
- reintroducing the OLRB’s power to make certain types of substantive interim orders; and
- repealing the union salary disclosure provisions of the LRA and the requirement that unionized employers post and distribute information on the decertification process to their employees.
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