Submission to the LRC Section 3 Review

RE: SECTION 3 – LABOUR RELATIONS CODE REVIEW

Submission by: The Kamloops & District Labour Council

The Kamloops and District Labour Council represents approximately 13,000 working people, from 19 affiliates, including provincial, national and international public and private sector unions, covering the region from Valemount to Merritt, and Chase to Lillooet.

The Council would like to thank the committee along with the Labour Relations Board for the opportunity to make a submission on this important matter. The fact that stakeholders, such as our Council and its affiliates, are being given this opportunity, shows the current Government’s willingness to listen and learn about issues within the code and how they affect working people.

Our submission will be broken down into five parts starting with a brief history, general, organizing, successorship and the construction industry.

Brief History:

The Labour Relations Code and its Board handle all matters related to Unionized workplaces that are provincially regulated, commonly referred to as “the Code” and the “LRB”. Both are a reflection of the current government in power, policies of those governments and the administration of such. This is evident by each change in government in 1973(NDP), 1984(So-Cred), 1987(So-Cred) and 1991(NDP).  Following the victory of the BC Liberals in 2001 and the passing of their Bill 18 in August of that same year, the continued trend and further escalation of de-unionization in this Province is well known. We intend to provide evidence of such and recommend changes that are not only wanted by Unions, but needed to protect and strengthen working class people in BC.

Although “flavour of the day” changes to labour relations aren’t unique to BC, what are unique are the lasting effects that the previous BC Liberal Government was able to establish in the last 16 years. Bill 18 made significant changes, none of which had greater impact than the elimination of both card-based certification and sectoral bargaining in construction, along with establishing education as an essential service. These changes created the situation that makes BC unique today. Although national Union density dropped through the 1980’s and 90’s, BC is the only province where this trend continued into the 2000’s. Unionization in BC by the end of 2016 was approximately 30%, which is below the national average, and is likely even less today.

General:

The Labour Relations Board has wide discretion over the rights of workers and how those rights are accessed.  But during the BC Liberal’s time in government, with chronic underfunding and understaffing, there had been a slow and steady drift towards irrelevance for the LRB.

Ongoing reviews and consultations with the labour relations community at large, such as the one being conducted now, had become non-existent under the previous regime. At one time the board used to hold meetings with Employers and Unions, which it stopped doing for a long period time.  Additionally, the use of part-time members with expertise in various sectors of the economy tapered off and stopped.

This shift over the last 16 years is consistent with the BC Liberal’s animosity towards workers. Furthermore, the undervaluing of the services the Board provides, such as mediation, has led parties to seek mediation outside of the Board, for example. This is not to say that there are not competent and hardworking individuals at the Board, but the lack of resources has effectively isolated the Board from the very community it seeks to represent.

Furthermore, there is a need for continuing reviews of the Code to reflect the evolution of the work environment in our province. There hasn’t been a review in BC since 2003, despite significant changes to union rights, which were extended and clarified by the Supreme Court of Canada and now protected in the Canadian Charter of Rights and Freedoms.

Recommendation:

 Encourage Government to restore greater levels of funding to the LRB. The lack of funding during the previous regime calls into question worker’s ability to access their rights in a timely way or at all. Adequate funding would allow greater consultation with the labour relations market and the ability to reinstitute the use of Members. Lack of funding has led to major staffing shortfalls which, subsequently, result in greater delays in acquisition of workers’ rights. Some of which we will continue to discuss below, including delays in mandatory votes or mail-in ballots. We believe that the Section 3 Review Committee should be instituted on a permanent basis to ensure that the Code is evaluated and updated continuously.

Organizing (Acquisition of Bargaining Rights):

Nowhere did the changes to the Labour Code by the BC Liberals have a greater impact than on the workers who are attempting to gain certification rights, or what is commonly referred to as the practice of Union Organizing. The abolishment of the card check system and a move to a mandatory vote system has always affected the number of annual unionized workers:

1974 – 1983 (NDP/Card-Check): 7411 average/year

1985 – 1992 (Socred/Mandatory Vote): 4106 average/year

1994 – 2000 (NDP/Card-Check): 8762 average/year

However, the desired impact of the BC Liberal changes was quite effective:

2002 – 2015 (BC Liberal/Mandatory Vote): 2526 average/year

Equally as disturbing, is the number of certifications granted by the board, which dropped from an average of 394/year from 1993 – 2000 to 85 per year from 2002 – 2015.

It is important to note that these stats, as harrowing as they are, are due to more than just the card-check system being abolished. In 2002, the BC Liberals made further amendments with Bill 42 which widened the ways Employers could communicate with employees during an Organizing campaign. These two changes have had the outcome the BC Liberals wanted and have slowed the rate of unionization in this province, while increasing the number of unfair labour practices significantly: From 0.89 per certification application (1992 – 2000) to 1.22 per certification application (2002 – 2015).

The real world application of this means that hiring a Union Organizer is a rare, and an expensive proposition for any labour organization to take on. In fact, organizing has become an expensive endeavour altogether; which in turn, has dissuaded smaller Locals over time. Even the larger Locals suffer; although organizing is a necessity, it has become a situation of trading excessive short term pain for the eventual long term gain.

An organizing campaign can be expensive even in Labour friendly environments, depending on a range of reasons including: the nature of the work, accessibility and locations of the job sites, the number of employees, etc. Add the likelihood of strong Employer resistance, dragged out over a minimum period of ten days, and it becomes certain that there will be at least one unfair labour practice complaint, resulting in a hearing, and most likely with counsel.

We would like to emphasize the “minimum” of ten days, from our experience. Lack of funding at the board has resulted in ten days being the standard, excluding those situations where statutory holidays or weekends cause an extension. Additionally it is becoming common place that rural locations (which can include cities such as Kamloops) are subject to mail-in ballots with 3 – 4 week delays in vote results. This situation was created to build tension and disruption in the workplace and ultimately impede a workers’ fundamental right to choose to unionize. Akin to other jurisdictions in North America, such as those with Right-to-Work laws, which blatantly attack Union purse strings, the attacks are business driven in an attempt to drive out competition.

To make matters worse, there have been several cases regarding Employer speech, which have rendered organizing campaigns completely unbalanced. Convergys Customer Management Canada Inc. was the first of such cases which, among other things, established that while outright lies were not permitted, statements that were incorrect or unreasonable would be. Another was RMH Teleservices International Inc. in which the Board found that bringing in additional management, holding meetings to speak about the Union organizing campaign, awarding gifts with anti-union messaging and blatantly displaying anti-union imaging at the workplace was permissible under sections 6(1) and 8 of the code.

This ultimately means that virtually all speech is allowable, unless the Union can prove it is intimidation or coercion.  Even when they can, the very likely result is the Employer attempting to settle the dispute rather than refer to a Board decision. A blatant threat to an individual that they will be laid off is not likely permissible, but statements about broader lay-offs, cost cutting measures and other methods of intimidation and veiled threats are likely to be permissible. Alternatively spreading false information about the Organizing Union is likely to be permissible, by simply pleading ignorance.

The final nail in the coffin is that regardless of everything that occurs during an organizing campaign, the likelihood of the Union applying and receiving remedial certification is remote. The committee would only have to look at the number of remedial certifications granted in recent years to understand this, but the average is less than two per year.

Recommendations:

 The KDLC submits that the LRC must reinstitute a card-check certification system in lieu of the current mandatory vote system. Card-check is the most equitable way of proving the bargaining unit’s desire to unionize their workplace.

We further submit that the Code be restored with section 6 & 8 language to its 1992 levels. Broadening Employer speech provisions has done nothing but intensify Employer resistance to organizing campaigns and the frequency of unfair labour practices. The system is already unbalanced in regards to which party has greater access and influence over the bargaining unit, and the two noted features above would only help to balance the scale.

We recommend an increase in the use of remedial certifications. Only then will there be deterrence to the ever growing trend of unfair labour practices.

Under a different organizing stream, we would like to draw your attention to the raiding periods within Section 19 of the Code. Employer dominated Unions of convenience are becoming an ever growing entity, particularly in the construction industry. These same Unions use the variable language in Section 19 as a means to restrict workers from selecting a Union of their choice.

In the construction industry, the most common scenario is where employer organized Unions align their raid periods with winter months, where work is either sparse or non-existent. During these periods, the Employers ensure that only a core group of supportive workers are employed and rely on the economics of all the laid-off employees to deter any organizing activity. This makes a difficult campaign almost impossible considering the frustrations in organizing already mentioned.

Recommendation:

Set the raid period in Section 19 of the code to a consistent timeline in a calendar year, ideally in the late spring or summer months, in order to allow greater fairness for workers to choose which Union they want to represent them.

Successorship Rights

Successorship rights under the Labour Code provide for labour stability by allowing the bargaining agent to continue representing the employees under the same collective agreement rights and provisions when a business or service is sold or transferred.  However, in 2002, the BC Liberals enacted the Health and Social Delivery Improvement Act (Bill 29) which not only allowed for mass contracting out of public health care services to private, for-profit contractors, but directly prohibited successorship rights from applying to contracts with a health sector employer.  In 2003, the BC Liberals then enacted the Health Sector Partnerships Agreement Act (Bill 94) which further excluded successorship rights from applying to private health care employers that sub-contracted out facility services or flipped the contract in its entirety.

As a result, over 8,000 workers lost their jobs. Despite many of them working in the same job for decades, they were required to reapply for the same job at a substantially lower wage rate. They lost their benefits and seniority rights and had to go through a probationary period.  Others weren’t rehired at all.   In the private long term care sector, this has resulted in job insecurity, wage suppression, and a complete lack of continuity of care for the residence particularly in the instances where a single facility has cycled through several contractors in a short period.

Recommendations:

To restore balance in the Labour Code and provide the basis for a work environment conducive to safe and continuous care of seniors, patients and residents, the KDLC recommends that Section 35 be expanded to provide for successorship rights in contracts covering building maintenance, food, security, health and long term care sectors, repeal Section 6 of Bill 29, of the Health and Social Services Delivery Improvement Act, and repeal Sections 4 and 5 of Bill 94, the Health Sector Partnerships Agreement Act.

Construction Industry:

The LRC is largely structured around workers within fixed industries, locations with steady workflow. In reality, the construction industry cannot be defined as one of those industries. Worker and Employer mobility is frequent and circulates around one particular project or sub-contracting specialty. The industry has minimal barriers to employment, but also minimal levels of stability. Organizing in construction is difficult due to the short duration of work and concluding Collective Agreements succinct to the completion of a project is largely unaccomplished. Add to this, the high use of Employer dominated Unions and the underground economy, and one can see the lack of construction related provisions within the Code.

The last comprehensive review of the construction industry was in 1998 by Stephen Kelleher and Stan Lanyon. This report is largely accepted by the Building Trades Unions within BC. Regardless of the details the report, the BC Liberals repealed most of the legislation recommended in order to re-establish the flawed system prior to this report.

This has led the current system to become inflexible and has become largely unworkable for most Trade Unions.

Recommendation:

In conjunction with ongoing reviews of the Labour Relations Code, we would submit that the panel recommend an independent and comprehensive review of construction labour relations.

Conclusion:

 In conclusion we call on the panel to simply look at the evidence that is presented here, and in the multitude of other submissions that are likely to be presented. It is clear that the decline in Union density in BC is having a detrimental impact on the working class of this Province. The BC Liberals’ systematic attack on Unions was effective, but yet we continue to fight on and survive.

The current NDP Government is making real and substantive changes that will make life more affordable for British Columbians, but we would suggest that giving people fair access to Union representation is one of the easiest and most effective solutions in making people’s lives better. Acquiring bargaining rights, the subsequent job security, fair wages and benefits, can all have a huge impact on people’s well-being.

We commend again, the panel and the current Government’s willingness to review the code, and hope that these recommendations will be instituted. We ask simply that the Code be adjusted in a manner to level the balance of power that is currently clearly weighted in favour of Employers. Labour Unions have the ability to fix the problem; we just need to the tools to get it done.

Respectively submitted.

 

Resources:

Restoring Fairness and Balance in Labour Relations: The BC Liberals’ Attacks on Unions and Workers 2001-2016. John MacTavish and Chris Buchanan

Looking to the Future: Taking Construction Labour Relations into the 21st Century, Stephen Kelleher and Stan Lanyon

Other:

On the ground stories, reports and experiences of local Union workers and representatives.

KDLC Submission to the LRC Review

 

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