Review is a chance to beef up workers’ rights
Labour code is tilted toward bosses, say Bethany Hastie and Daniel Mare.
An independent panel is reviewing the B.C. Labour Relations Code, presenting a meaningful opportunity to strengthen workers’ rights under the code, which have been consistently eroded in past decades.
Among a number of issues raised, many related to the ineffectiveness of existing protections for workers within unionized environments. These include negative effects to certification votes and first agreement arbitrations due to administrative delays, as well as a lack of robust successorship rights. These factors diminish workers’ ability to effectively exercise their rights, and create a context ripe for employers to dissuade union activity in the workplace.
Lengthy delays for certification votes and first agreement arbitrations at the B.C. Labour Relations Board provide a window of opportunity where unscrupulous employers might engage in unfair practices to dissuade unionization in the workplace. A certification vote — a vote by employees to form a union in the workplace — is administered through the board. Delays create a longer period of time during which there is potential for employer interference in the unionization process. Existing research establishes that delays in union certification votes correspond with lower success rates. As such, delay at the board inhibits the effective exercise of the right to unionize.
In cases where arbitration is required to conclude a first collective agreement, delays at the board can similarly create a window of opportunity for employer interference. Delays in scheduling an arbitration often exceed the “statutory freeze period” — a four-month window after certification during which employers cannot alter employment contracts. Delays beyond this period create a particularly vulnerable period of time where employers can readily engage in unfair tactics, such as penalizing or terminating pro-union workers. Delays can even result in decertification of the union where sufficient pressure is placed on workers, or a high number of workers are terminated. Extending the statutory freeze period until a collective agreement is reached, coupled with enhanced funding and resources for the board, would provide workers with greater security during certification and initial bargaining.
A lack of robust successorship rights — which bind a subsequent employer to the collective agreement already in place in a unionized workplace — is another pressing issue where contracting out takes place. Where an employer decides to contract out part of its operations, workers often lose the rights they previously obtained under a collective agreement.
In a labour market increasingly marked by short-term contract work, the current legislation provides a loophole that employers can use to undermine unions in the workplace. In fact, it provides an incentive for employers to privatize and contract out operations to avoid obligations under a collective agreement or dismantle a unionized workplace.
Many submissions made on behalf of employers and business associations advocated against reforms that would enhance worker protection under the code, positioning these interests at odds with increasing demand for flexibility and individual employee choice in labour markets.
However, the collective power workers derive through unionization supports them to exercise choice in the workplace. The reforms discussed above further that goal, not undermine it. It is the power given to employers through the delays and loopholes under the code that inhibits workers’ rights and choice. Remedying these issues should be the central focus moving forward.
Strengthening workers’ rights is a fundamental concern of labour law. Past reforms and amendments to the B.C. Labour Relations Code have neglected that fundamental purpose. In doing so, the code and its administration have become ineffective in protecting and promoting workers’ rights. The current review process provides a meaningful opportunity to reclaim this goal. In doing so, it will enable workers to reclaim their power in the workplace.