Application for Union Certification in Ontario
When faced with a union organizing campaign, Ontario employers are often confronted with short deadlines and terms they may not have encountered before. One such term is the application for union certification, which can significantly impact the relationship between employers and employees. Employers should be prepared to address the issue proactively while protecting their legal interests.
What is an Application for Union Certification?
In Ontario, an application for certification is a formal request submitted by a proposed union to the Ontario Labour Relations Board (OLRB), seeking to be recognized as the exclusive bargaining agent for a group of employees (the bargaining unit). If the application is successful, the union becomes the sole representative of those workers, and the employer must negotiate employment terms with the union collectively rather than with employees individually.
The application requires the union to provide a description of the proposed bargaining unit and to show evidence that it has the support of at least 40% of the employees in that unit through signed membership cards. While this is the minimum requirement to apply for certification, other forms of evidence (e.g., employee affidavits or electronic documents) may also be accepted, particularly if there are issues with paper membership cards.
Once the 40% threshold is met, the OLRB may schedule a vote on unionization. If more than 50% of the employees in the bargaining unit vote in favour of unionization, the union is certified, and collective bargaining begins.
How does the Application for Union Certification work?
The unionization process begins with an organizing campaign, where employees may meet outside working hours to discuss the benefits of unionization. Existing unions may also approach employees directly. Employers may become aware of this campaign and should be cautious in how they respond.
It is illegal for employers to retaliate or interfere with union organizing efforts. Any attempt to influence employees’ decision to join or not join the union, such as threats of dismissal or adverse treatment, can result in the Ontario Labour Relations Board finding the employer guilty of committing an unfair labour practice. In such cases, the OLRB may order remedial actions, including certifying the union without a vote.
If the proposed union can demonstrate 40% support among the employees in the bargaining unit, the employer is notified and has two business days to respond to the certification application. The employer must identify the employees in the proposed bargaining unit and may challenge the inclusion of certain employees if they believe they were improperly included.
Special rules apply for the construction industry. If the union has sufficient support within this sector, it can apply for certification without the usual requirement for a vote, based on the membership cards alone.
Once both sides have submitted their responses, the OLRB reviews the materials and may request additional information or hold a hearing if necessary. If no significant issues remain, the OLRB typically schedules a certification vote, usually within one week of the application, but the timing may vary depending on the case’s complexity or whether additional hearings are required.
Factors that Can Prevent Certification
Applications for union certification can fail for several reasons, including insufficient employee support. For example, if employees listed in the certification application have resigned or if the proposed bargaining unit improperly includes management employees (who are not eligible to unionize under Ontario law), the application may be rejected.
Other factors that could prevent certification include:
- Employer or employer organization involvement in the formation, administration, or financing of the certification application, including any involvement from management. However, the OLRB will investigate to determine if the proposed bargaining unit initiated the request for the union or if the employer is improperly intervening to prevent unionization.
- Discriminatory bargaining units that violate the Ontario Human Rights Code or the Canadian Charter of Rights and Freedoms. The OLRB will not certify a unit that excludes employees based on prohibited grounds of discrimination, such as race, sex, or disability. Additionally, the bargaining unit must represent employees with a “community of interest,” meaning they share common interests and job functions.
- Failed representation votes: If the certification vote fails and another application is made for the same bargaining unit within one year of the failed vote, the OLRB may dismiss the application. However, a new application may be allowed if there have been substantial changes in the workplace, such as a significant number of new employees or restructuring.
Key Considerations for Employers
Due to the tight deadlines and potentially high stakes of union organizing campaigns, it is crucial for employers to seek competent legal advice as soon as they become aware of unionization efforts. A lawyer specializing in labour law can help employers navigate labour practices, assist in disputing the inclusion of employees, and advise on how to comply with OLRB procedures.
Christopher Achkar, employment lawyer at Achkar Law, emphasizes the importance of compliance in these situations:
“Employers must be extremely cautious during a union organizing campaign. Failure to comply with the rules set out by the Ontario Labour Relations Board can lead to serious consequences, including the union being certified without a vote, which severely limits an employer’s ability to negotiate terms directly with their employees. Additionally, employers found guilty of interfering with unionization efforts can face substantial legal costs, fines, and reputational damage. Proactive legal advice is key to ensuring employers remain compliant throughout the process and avoid making costly mistakes.”
In conclusion, union certification is a process that carries significant implications for both employers and employees. Employers must be aware of their legal obligations and the proper steps to take to either support or contest unionization efforts. By remaining informed and seeking professional legal counsel, employers can better manage union organizing campaigns and their legal responsibilities under Ontario’s labour laws.
Need Help with a Union Certification Campaign? Contact the Labour Lawyers at Achkar Law
If you are an employer facing a union organizing campaign or a potential application for union certification, it’s crucial to have experienced legal guidance. At Achkar Law, our labour lawyers specialize in advising employers through the complexities of unionization processes and ensuring compliance with Ontario’s labour laws.
Whether you’re navigating the early stages of union organization, dealing with potential interference issues, or responding to an application for certification, we are here to help you protect your business and legal interests.
Contact us today to speak with a labour lawyer and get the legal advice you need to navigate union certification with confidence.
Contact us toll-free: 1-800-771-7882 | Email: [email protected]
The article in this client update provides general information and should not be relied on as legal advice or opinion. This publication is copyrighted by Achkar Law Professional Corporation and may not be photocopied or reproduced in any form, in whole or in part, without the express permission of Achkar Law Professional Corporation. ©
Workplace Law Topics: Labour Law, Union Certification, Responding to Unfair Labour Practices, Common Employer Applications.