Unfair Labour Practices
Unfair Labour Practices
The Labour Relations Code guarantees employers, employees and trade unions the right to free collective bargaining and establishes a system to make collective bargaining work. To protect these rights, and keep the system functioning fairly, the Code prohibits certain types of unacceptable conduct.
Complaints that the Code has been breached can be filed with the Labour Relations Board by any affected party. The Board refers to such complaints as "unfair labour practice complaints." One party is complaining to the Board that another party has breached a provision in the Code. Such complaints may involve trade unions, employers, employers' organizations, employees or persons acting on their behalf.
Freeze Periods
There are certain sensitive times during the certification and bargaining cycle when the Code prohibits unilateral changes in rates of pay and terms and conditions of employment.
- From the day an application for certification is filed until it is refused, or until 30 days after it is granted
- For a further 60 days, if a notice to bargain is served in respect of a newly certified employer within 30 days of the certification (Section 147)
- Once a notice to bargain is served at the end of a collective agreement. Like the "bridging provision" that extends the collective agreement, this freeze prevents changes during the negotiations. It ends once an agreement is reached, the bargaining rights are terminated or a strike or lockout occurs.
The Code permits changes to employment terms during these freeze periods, but only when the change is based on an established practice, when it is allowed by the collective agreement or when the employer has the union's consent to the change.
Giving Evidence
The Code prohibits the practice of taking discriminatory or retaliatory action against people who have testified at a Board hearing, filed a complaint, made an application under the Code or otherwise taken part in the proceedings provided for in the Code. This prohibition applies to employers and trade unions, as well as to people acting on their behalf (Section 22).
Internal Trade Union Affairs
The Code offers protection for union members when participating in the activities of their trade union. At the same time the Code recognizes that the trade union is an organization free to govern its own affairs.
While a trade union, acting under its constitution, can take disciplinary action against union members, the Code requires certain steps be taken in cases other than non-payment of dues (Section 26). The Code requires service of charges in writing, a reasonable time to prepare a defence, a full and fair hearing including the right to use counsel, and a reasonable time to pay any fine imposed.
The Code provides protection from discriminatory discipline and membership practices by trade unions (Section 152). The Board will not usually deal with any such complaint until the individual has first used the trade union's internal appeal procedures. The Board will deal with the complaint right away if the employee is denied ready access to a reasonable appeal procedure.
The Code protects a union member from union discipline for engaging in work in accordance with the collective agreement or for refusing to do something contrary to the Code. It also prohibits discipline for working "non-union" unless the union makes alternative unionized work available or the employee's work is affected by a lawful strike (Section 151(i)).
Employer Involvement in Trade Union Activities and Employer Free Speech
It is an unfair labour practice for an employer to participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union (Section 148). The employer must not contribute financial or other support to a trade union because this undermines the union's independence. However, certain common types of co-operation are permitted. When a union is the bargaining agent for the employer's employees, the employer can allow employees to perform union tasks on company time or allow company premises to be used for union business.
These prohibitions on employer interference still allow the employer to express opinions, as long as coercion, threats, promises or undue influence are not used (Section 148(2)(c)).
Examples of Prohibited Practices
These actions are examples of prohibited practices by employers:
- Terminating or disciplining an employee for joining or organizing a trade union (Section 149(a))
- Bargaining with one trade union for a unit that is represented by another union (Section 149(e))
- Making it a condition of employment that a person not join a trade union (Section 149(b))
- Denying employees their entitlement to pension rights or benefits because of their participation in a strike or lockout (Section 155)
These actions are examples of prohibited practices by trade unions:
- Bargaining collectively or signing a collective agreement where another union is known to be the bargaining agent (Section 151(a)(b))
- Interfering with or participating in the formation of an employers' organization (Section 151(c));
- Attempting to organize on the employer's premises during an employee's working hours without the consent of the employer (Section 151(d))
- Using coercion, intimidation, threats, promises or undue influence to encourage trade union membership (Section 151(f))
- Interfering with the performance of work because certain employees are not members of a particular trade union (Section 151(e))
These are only examples of prohibited practices; any contravention of the Labour Relations Code can result in a complaint.
When an unfair labour practice complaint is made, what happens?
Usually, the Board appoints an officer to look into the complaint and try to assist the parties to resolve it between themselves. If the complaint remains unresolved, the Board may hold an informal or formal hearing, at which the parties will have an opportunity to present evidence and arguments.If the Board finds the complaint is justified, it may take whatever interim or final action it feels is necessary to rectify the breach of the Code complained about, including ordering that:
- The practice be stopped
- An employee suspended or discharged be reinstated and compensated
- An employee be reinstated or admitted as a member of a trade union
- An unfair disciplinary action or penalty be lifted, and compensation paid (Section 17)
In extreme cases, the Board may remedy an unfair labour practice by granting or revoking a registration or certification. However, any such order is subject to a vote by the affected employers or employees.