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Labour Code Review Leaves Precarious Workers Out in the Cold

The government announced one positive change today, but more could be done to help workers exercise their right to bargain collectively.

By Bethany Hastie 8 Nov 2018 | TheTyee.ca

Bethany Hastie is an assistant professor at the Peter A. Allard School of Law at the University of British Columbia.

The report from the B.C. government’s Labour Relations Code Review Panel fails to address the critical issue of improving access to unionization for the increasing number of precarious workers.

The report recommends some promising reforms to strengthen unions, including expanding successorship protections. Those ensure that if new owners take over a business, they are required to recognize and bargain with an existing union in the workplace.

But those rights don’t apply in situations where work is contracted out and a new company takes over the contract.

In these circumstances, the workplace is effectively decertified, and workers lose their bargaining rights. Workers at seniors’ care facilities, for example, have formed unions and bargained collective agreements, only to see their efforts wiped out when the facility awards the contact to a new company.

The report, from a three-person panel that included a former associate chair of the B.C. Labour Relations Board and two labour lawyers representing employers and unions, recommends extending successorship protections if contracts are re-tendered in the building cleaning, security, bus transportation and health care sectors, which will better protect these workers. On Thursday, the government introduced legislation to restore successor rights in the health care sector, but more needs to be done.

However, the panel’s recommendations fall short for the growing number of precarious workers not represented by a union, who face significant barriers in unionizing.

For many workers in precarious jobs — jobs characterized by low-wages, part-time or casual hours, and minimal job security in industries like food services and retail — unionization is not a viable option due to the length and complexity of certification procedures and requirement to organize by individual worksite. Organizing workers in a single fast food outlet, for example, faces many challenges arising from the large percentage of part-time and casual workers and high employee turnover.

B.C. law currently requires a “two-step” process to certify a union: first, demonstrating sufficient support through signed membership cards; second, holding a secret-ballot vote.

The report acknowledges the problems created by this process, and that most Canadian provinces allow certification based on signed membership cards without a vote, yet it does not recommend change.

Unlawful employer interference is a real concern under the secret-ballot vote system, which allows time between the application based on the cards and the supervised vote. The success rate of unionization is lower under this system, as opposed to card-check certification.

While arguments against card-check certification focus on the need to protect employee choice, allowing both models enhances workers’ options.

For example, in Alberta a worksite may unionize by card-check alone where 65 per cent of eligible employees sign membership cards. Where support is less than 65 per cent and more than 40 per cent, a secret-ballot vote is held.

The B.C. Labour Relations Code should be amended to provide similar choice to workers, and it will help reduce some of the barriers to unionization for workers in precarious jobs.

The issue of sectoral organizing — allowing workers to unionize by industry instead of by individual workplace — was also considered by the panel, though no recommendations were made.

Workers’ advocates have long called for sectoral organizing in difficult-to-organize industries like food services and retail as an important reform to enhance access to unionization. Instead of requiring employees in each small workplace to apply for union certification, they could unionize as a multi-location group and negotiate a common agreement with employers.

The B.C. government has concrete options available to do this. First, sectoral organizing is already used in B.C. in the construction industry, health care and film production. Second, a special advisors’ report provided to the B.C. government in 1992 set out a model to expand this to the industries in need of it today.

The review of the B.C. Labour Relations Code has the potential to make positive change to increase access to unionization, a way to ameliorate the negative impacts of precarious work and rising inequality.

However, without a return to card-check certification and expansion of sectoral organizing, the reforms will do little to improve the wages and working conditions for the vast majority of precarious workers in B.C.  [Tyee]

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