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DCN INDUSTRY PERSPECTIVES: PREPARING FOR THE 2016 CONSTRUCTION "OPEN PERIOD" IN ONTARIO

09/03/2016
by KEITH BURKHARDT April 30, 2016 marks the expiry of the vast majority of Ontario's...
Published on: 09/03/2016

by KEITH BURKHARDT 

April 30, 2016 marks the expiry of the vast majority of Ontario's construction industry collective agreements, and negotiations for new collective agreements are already underway for many construction trades.

As many construction employers know, the Ontario Labour Relations Act, 1995 provides for a two month "open period" at the end of each collective agreement term.

During this open period an incumbent union can lose its right to represent employees in one of two ways: Employees governed by an agreement may apply to decertify the union; or a rival union can apply to displace the incumbent union through a process known as a raid.

For agreements that expire on April 30, 2016, the "open period" will start on March 1, 2016.

Under the Labour Relations Act an employer is not permitted to initiate a decertification application or facilitate a raid by another union. However, that does not mean an employer does not play an important role if a decertification or raid application is filed. To the contrary, a proactive employer can participate in the process with a view to achieving a result in the best long-term interests of the company.

Actions an Employer May Take Prior to an Application Being Filed
Prior to an application being filed, an employer is permitted, within certain legal limitations, to answer questions from employees and make statements about existing terms and conditions of employment and the current bargaining relationship. An employer or an employee is not obligated to speak with a union representative and representatives of a rival union are not granted unfettered access to jobsites. Further, an employer is well within its legal rights to request that employees and unions not address decertification or raid issues during work time or on the jobsite.

Actions an Employer May Take Following an Application Being Filed
Once an application has been filed, an employer is placed under very tight timelines to file with the Ontario Labour Relations Board a response and full legal submissions. The response to a raid or decertification application is due two business days after the application is served on the employer. If not filed, or not filed in a timely fashion, the employer can lose its ability to participate in the process.

An employer that intends to file a response will need to consider several critical matters and do so quickly. Some are entirely factual, while others require careful consideration of company objectives and strategy.

Following the filing of a response, it is likely the labour board will order a secret ballot vote be conducted within a few days (often five business days after the application was served on the employer).

The secret ballot vote, which is overseen by a representative of the labour board, will usually be held at the employer's office or jobsite.
If there is disagreement between the employer and union over matters such as whether an employee should "count" for the purposes of voting, the scope of the bargaining union, timeliness, etc. it is possible (and in fact likely) some or all of the ballots will be "segregated" and not counted until the labour board has addressed the outstanding issues.

In the weeks following the filing of an application, the employer must file comprehensive submissions and legal arguments with the labour board.

Failure to file complete submissions (including a range of information regarding payroll, time sheets, etc.) could result in the board making a decision without considering the employer's position.

What an Employer Can Do Now to Prepare
The complexity of the process and speed at which it moves means it advisable that any response to an application or the subsequent submissions be undertaken with the assistance of labour counsel experienced in the area of construction labour relations.

It is also prudent to take steps now to ensure that record keeping is complete and easily accessible (for example, payroll is properly administered, daily site records provide meaningful and useful information, etc.), and site supervisors and managers are trained on the decertification, raid processes and an employer's legal obligations and limitations.

In this delicate framework in which every minute counts, it is important to do everything possible to ensure those minutes count for the employer, not against it.

Keith Burkhardt is a lawyer with Sherrard Kuzz LLP, one of Canada's leading employment and labour law firms, representing management. He can be reached at 416-603-0700 or by visiting www.sherrardkuzz.com.

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