Canadian Lawyer InHouse

7 CANADIANLAWYERMAG.COM/INHOUSE JULY/AUGUST 2019 A roundup of legal department news and trends I n Western Canada, labour and employment law is evolving along two distinct paths, with governments in British Columbia and Alberta both in the process of passing labour law reforms. In B.C., the NDP government's Bill 30, the Labour Relations Code Amendment Act will make remedial certification easier for unions, restrict what employers can say to employees about unions and give succes - sor rights to certain types of contractors. The B.C. government is also amending the Employment Standards Act, raising the age a child can work and instituting unpaid leave for victims of domestic abuse, among other changes. From Alberta and the new United Con - servative Party comes Bill 2, An Act to Make Alberta Open for Business, which un- does labour-law changes made by the UCP's NDP predecessors. The bill passed first reading May 27 and its changes include re- storing a mandatory secret ballot for union certification votes, changing the period for unions to give evidence of support for a union to 90 days from six months, elimi- nating holiday pay if the holiday lands on an off day and lowering the minimum wage for workers between 13 and 17 years old. "It's a ping pong effect. As the govern - ments continue to change, they seem intent on lots and lots of legislative reform in this area," says Gary Clarke, a partner and head of Stikeman Elliott LLP's Western Canada employment and labour group. The most significant aspect of B.C.'s La - bour Relations Code Amendment Act is the changes to employer speech, says Clarke. Since 2003, the language of the act allowed an employer the freedom to express their views to their employees on any issue — including trade unions — as long as they did not use intimidation or coercion, says Clarke. The amendments allow an employ - er any statement of fact or opinion relating to the business that is reasonably held. The language "reasonably held" is significant, says Clarke. "Expressing views critical to unions gener - ally could be considered to be 'unreasonably held' beliefs. . . . To me, that's a dangerous phrase," Clarke says. "The employer may say something, the union takes a view that that's an unreasonably held belief and then they file an unfair labour-practice complaint; whereas, right now, the way it's structured, the thresh - old to make a complaint on employer speech is quite a bit higher." Employer speech provisions relate to what Clarke says is the second biggest change — the enhanced ability to order remedial cer - tifications. If an employer commits an alleg- edly unfair labour practice and the union complains successfully to the board, the union can become certified without an em- ployee vote. He adds that the amendments say that the union does not need to establish "that requisite support for the certification would have been obtained had the unfair act not occurred." "Takeaway for employers will be that they're going to need to be extra careful, if you will, when communicating views about unions and union affairs, especially in the context of an organizing campaign," Clarke says. "If you have a non-unionized workforce, and there is a union drive underway, say - "As the governments continue to change, they seem intent on lots and lots of legislative reform in this area." – Gary Clarke B.C. and Alberta take starkly different approach to labour reforms BY AIDAN MACNAB ing the wrong thing could potentially end up putting you in hot water with an unfair labour practice that could, in turn, lead to a remedial certification," he says. Since similar rules were instituted in Alberta by the former NDP government, there have been two remedial certifications, says Clarke. British Columbia's labour relations code changes were based on recommenda- tions from a review panel consisting of Mi- chael Fleming, former associate chairman of the B.C. Labour Relations Board, Sandra Banister of Banister & Company and Barry Dong, a partner at Harris & Company LLP. Mike Hamata, a partner at Roper Greyell LLP Employment + Labour Lawyers in Vancouver, says the most surprising chang - es were provisions making successorship au- tomatic on the retendering of a contract for certain industries. Currently, if a company contracts work to a separate operator whose workforce is unionized and that contract is eliminated and given to another company, the union does not follow the contract. "Historically, that's not been a successor - ship," Hamata says. "So, if there was a union under the previous operator, then the new operator historically would not have inherited that union. That's changing in the new act." The contractors included in these chang - es are building cleaning services, security, bus transportation, food services or non- clinical health services, and the change was meant to protect vulnerable workers, Ha- mata says. Dong, a panelist on the Labour Relations Code Review Panel, says the successorship changes were a response to what they heard from the public during their review. "We heard from over 80 presenters and there was a fairly consistent theme of people coming forward saying they were concerned that their rights had been di - minished — adversely affected — simply because the service provider for an owner or business had changed through the bid- ding process," says Dong. Dong says that although there is division across the country on the issue, the B.C. panel decided to retain the secret ballot vote for union certification. IH Gary Clarke says with B.C.'s new Labour Relations Code amendments, employers need to be wary of statements they make to employees during a union drive.

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