Can An Employer Stop Employees from Unionizing?
In Ontario, employees usually have the ability to form a union. Employees may seek to do so for a variety of reasons, including but not limited to poor working conditions, disrespect from management, or a lack of job security. Once a union is formed, it can negotiate a collective agreement which can restrict the employer’s authority over its employees and force them to go through the union over certain issues. Many employees fear that their employer may reprise against them for forming a union, so the question is, can employers stop employees from unionizing without engaging in unfair labour practices?
The Union Certification Process
The process to certify a union is set out in Ontario’s Labour Relations Act. Employees will first gather support for the unionization and then file an application for certification with the Ontario Labour Relations Board containing a description of the proposed bargaining unit and the proposed number of members. A copy of the application will be provided to the employer, who will then have two business days to file a response.
At this point, the Labour Relations Board will hold a hearing and determine if a certification vote can be held. This will be granted if the support of 40% of the proposed bargaining unit can be demonstrated. If over 50% of employees who cast a ballot vote in favour of unionization, the union will be certified.
The employer normally cannot interfere with the certification vote, risking an application against them for unfair labour practices if they do so, which can have costly consequences.
How can the Employer take part in the Process?
While employers may be at risk of an unfair labour practices application if they cross the line in opposing the union’s formation, there are some options available to the employer. The employer can still communicate with employees during the proposed union’s attempt to organize. While the employer cannot coerce or threaten employees, the employer can state its position on the matter, correct inaccurate statements made by the proposed union, explain disadvantages of union membership, or explain that benefits promised by the proposed union may not occur.
The employer can also expect the workplace to continue operating in a “business as usual” manner while the proposed union is organizing. The employer can expect employees to be performing their duties on company time, upholding workplace standards, and preventing outside organizers from trespassing.
Once an application for certification has been filed, the employer can provide a response within two business days disputing the proposed description of the union and/or the number of proposed members.
It is important to note, however, that what an employer can and cannot do regarding the formation of a union is not always clear, and employers should consult with a labour lawyer before taking any action to ensure they are not opening themselves up to liability for damages or other penalties.
Contact Achkar Law
If you are an employer and have questions related to the union certification process or your employees are attempting to form a union, or an employee and have questions pertaining to whether employers can stop employees from unionizing, our team of experienced labour lawyers at Achkar Law can help.