Preparing for the 2016 Construction “Open Period” in Ontario

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By Erin R. Kuzz

April 30, 2016 marks the expiry of the majority of Ontario’s construction industry collective agreements. The Ontario Labour Relations Act, 1995 provides for a two month “open period” at the end of each collective agreement’s term during which employees may apply to decertify the union, or a rival union can apply to displace the current union through a process known as a raid. For agreements that expire on April 30, 2016, the “open period” started 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.

Prior to an Application Being Filed:

Before an application is filed, an employer is allowed, 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 within its legal rights to request that employees and unions not address decertification or raid issues during active work time or on the jobsite.

Following the Filing of an Application:

The response to a raid or decertification application is due two (2) business days after the application is served on the employer.

This is just one of a number of tight timelines involved in the process and if the employer does not file its response in a timely fashion it can lose its ability to participate in the process, meaning it loses the right to influence the outcome in the way that’s best for its business.

In the event of a decertification or raid, the Labour Board will generally order a supervised secret ballot vote, usually five (5) business days after the application was served on the employer.

In the weeks following the vote, the employer must file detailed submissions, documents and legal argument with the Labour Board on any outstanding issues (including which employees’ votes ‘count’). 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:

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

Erin Kuzz
Erin Kuzz

This is a complex and fast-moving process and it is advisable that any response to an application be undertaken with the assistance of labour counsel experienced in the area of construction labour relations.

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.

Erin Kuzz is a lawyer with Sherrard Kuzz LLP, one of Canada’s leading employment and labour law firms, representing management. Erin can be reached at (416) 603-0700 (main), (416) 4200-0738 (24 Hour) or by visiting www.sherrardkuzz.com.

The information contained in this article is provided for general information purposes only and does not constitute legal or other professional advice. Reading this article does not create a lawyer-client relationship. Readers are advised to seek specific legal advice from Sherrard Kuzz LLP (or other legal counsel) in relation to any decision or course of action contemplated.

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