Ch 3.pdf

lOMoARcPSD|2779689 Unions Mana 479 Chapter 3 - The Certification Process Certification Recognition of representative character of an association of employees that allows a union to establish a collective employment relationship w/ the employer. Employees’ Association The QLC has not specific requir...

lOMoARcPSD|2779689 Unions Mana 479 Chapter 3 - The Certification Process Certification Recognition of representative character of an association of employees that allows a union to establish a collective employment relationship w/ the employer. Employees’ Association The QLC has not specific requirements for the association to be a legal person; the alt can recognize a simple association as long as its controlled exclusively by its own members. § Must be formed for the purpose of representing the economic/social/educational interests of employees. § Must exist and function: - Have members who have signed membership cards - Hold meetings of formation - Collect dues from members - Adopt a constitution and elect union leadership Most associations are constituted under the provisions of the Professional Syndicate Act and benefit from separate legal personality. Petition for Certification Petition Requirement An association wishing to represent a bargaining unit (BU) must follow precise rules to petition the Minister of Labour to be certified. § Identification of an appropriate bargaining unit. § Recognition that the association requesting certification is representative of the absolute majority of employees in the BU. Conditions for Filling § There is no minimum number of employees that must be members of a union, as long as it represents the majority of the bargaining unit. § Employer must be an existing enterprise. § Can be a business which has not yet begun operations as long as the petition includes the necessary majority that will eventually be part of the enterprise Art. 25 A petition can only be submitted by an employees’ association, excluding management and independent contractors. (accidental inclusion of ineligible employees does not invalidated the petition if it was made in good faith) Art. 27.1 First to File Once a petition is filed and is pending, any subsequent petition is inadmissible. § Must be validly filed and must meet QLC admissibility rules. § The fact that it may be subsequently dismissed is irrelevant to the rule. § The fact that the second petition covers a larger group. Two petitions filed the same day are considered concurrent and will both be treated and considered. § A petition is deemed as filed the day of its deposit at the alt offices. § Either petition may be subsequently withdrawn or dismissed. 8 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 New Petitions Art. 40 An association whose petition is rejected or withdrawn must wait 3 months before presenting a new petition. Exceptions: The 3-month waiting period does not apply to a petition which has been dismissed/withdrawn as a result of: § The first to file rule § A procedural defect § An association which has ceased to exist or no longer comprises the absolute majority § The merger of municipalities and school boards, integration of personnel within urban communities, or establishment of transit authorities. Unions will often avoid this waiting period by creating a new association w/ a new name and new board of directors, to file their petition from. (many members and officers will remain the same) § A different local of a larger union can be considered a different association. Art. 22 Petition Deadlines Status Prescription Condition Not represented by an association Any time Not already contemplated, in whole or in part, in an application for certification. An association w/o a collective agreement 12 months after date of certification or 12 months after the decision of the Tribunal on the description of the BU § A dispute has not been submitted for arbitration. § They are not the object of a strike or lockout. 9 months after the date of expiration of a collective agreement § A new collective agreement has not been made and a dispute has not been submitted for arbitration. § They are not the object of a strike or lockout. An association w/ an expired collective agreement As association w/ an active collective agreement As association w/ an active collective agreement 90 - 60 days prior to the date of expiration or renewal of a collective agreement 180 - 150 days prior to the date of expiration or renewal of a collective agreement The term of the collective agreement is ≦ 3 years The term of the collective agreement is > 3 years Petition Formalities Identify: The petition must § The group of employees subject to the petition. § The employer and address of the targeted establishment. § The specific establishment(s) represented. § The entities which make up the employer. Be Accompanied By: § Employee membership application forms. § Other documents required by regulation. Be Authorized By: § A resolution of the association, not by an individual or group of employees. § The resolution can be adopted at a general assembly of all members, or by the executive according to the association’s by-laws. § The resolution must be a certified true copy. 9 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 The alt will communicate a copy of the petition to the employer who must: § Post the petition in a conspicuous place on or before the first working day following the day its received. § Keep the petition posted for at least 5 consecutive days. § Post the complete list of employees concerned by the petition, and their functions. - In a conspicuous place - Within 5 days of receiving the petition § Send a copy of the list to the petitioning association § Make the list available to the Labour Relations Officer of the alt. Evaluation of Petitions The petition for certification is exclusively examined by a Labour Relations Officer. § Process is largely administrative. § LRO investigates by gathering info, documents, and positions of parties. § Process is investigative not adversarial. § May grant or refuse certification. § Regular courts cannot intervene except in cases of manifestly unreasonable decisions. If circumstances do not allow the LRO to grant or reject a request for certification, the case is referred to the alt who may exercise judicial function in case of disputes. Only the employer and the association are allowed to be involved in the process, not individual employees. Only the association and the employees themselves are involved in evaluating the representative character of the association. (the alt evaluates this as it deems fit, including holding a secret ballot) Employers CAN protest the admissibility of the petition based on: § The existence of the association’s resolution § Whether the required membership applications were produced § Whether the petition was filed within the proper deadlines Employers CANNOT: § Have access to membership applications § Have access to other evidence of representative character *Art. 36 prohibits revealing an employee’s adherence to a union. ↳ except in the course of a hearing The Bargaining Unit Strategically Choosing a BU A bargaining unit that’s too large may make it difficult to attain majority representation, therefore the union may seek to limit the group where it has most support. The proposed BU chosen by the union can include: § All employees of the employer. § Any identifiable group of the employees which constitutes a distinct group within the undertaking. § A group agreed up by the employer and the association which can be negotiated before petitioning. 10 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Criteria for an Appropriate BU 1. Common Interest Do the employees within the BU have common interests based on several factors. § Nature and functions of employees and their interrelationships § Qualifications required for employment § Hierarchy structure applied to the employees § How and by whom authority is exercised 2. History The employee/employer relationships among businesses in the same sector. § The alt tends to apply the same BUs to similar groups of employees in similar industries. § An association that wishes to further fraction the BU would have to justify why. § Residual employees left after creation of other BUs will usually be grouped together. 3. Preference Employee preference is measured based on their support for the proposed BU. 4. Geography Territorial activity of the employer. § The existence of several establishments. § The size of the territory over which several establishments are spread § The amount of mobility among the establishments § Whether a BU in one establishment can be easily managed separately § Whether the distance between establishments is a hinderance to a single BU 5. Promotion of Labour Peace Avoiding a multiplicity of BUs within an enterprise mitigates cycles of strikes/lockouts that can occur when too many collective bargaining agreements need to be negotiated. Appropriateness as Applied by the ALT § A bargaining unit that includes all employees is usually deemed appropriate. - All things equal, the alt will favour a larger BU. - A relatively small BU must be strongly supported by employees. § Certification by individual establishments are considered natural BUs and are deemed appropriate. § Office workers are usually considered distinct within an enterprise. § Full-time and part-time workers are part of the same BU. § Casual workers (periodic) are not included in the BU, but can form a distinct group. § An agreement between employer and association may result in exceptions to other criteria. The BU must be limited to a single employer but can include several legal entities constituting a single employer. Bargaining Units in the Public Sector Public service workers can only be part of BUs identified in the Public Service Act. § Municipal police can only by part of a single unaffiliated union which can comprise of only constables from that municipality. § Health service workers can be part of 1 of 4 unions: 1. Nurses' union 3. Technicians and professionals union 2. Administrative union 4. Material and technical support staff union 11 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Modifications to the Bargaining Unit The alt has the power to modify and determine all issues relating the bargaining unit, whether on its own initiative or at the request of a union, employees, or employer. Art. 39 The alt may decide, either on its own initiative or on request, if a person is an employee and should be included in the bargaining unit. Modifications can also be made during the period that allows for new petitions (raiding period). § Can only be requested by the association § Must respect delays for filing petitions Representative Character of the BU An assessment of membership must be made on the day of filing the petition. By Calculation Counting the # of employees from the appropriate BU who: § Have signed an application for membership in the association § Have personally paid union dues for ≧ $2 This excluded casual employees, but includes employees on leave/vacation and temporarily laid off workers. By Secret Ballot A secret ballot vote is required when: § Membership in the association comprises 35% - 50% of the employees in the BU. § There is more than 1 association petitioning, and neither have absolute majority. § There is an agreement between the employer and the association for the BU and there is 1+ petitions. § If there has already been a secret ballot and 2 or more associations together make up a majority of employees. Art. 32 (3) A secret ballot can be ordered by the ALT/LRO at any time, and will be conducted by the LRO. Assessment of Petition by the LRO The LRO can grant certification in undisputed cases when: § There is an agreement regarding the BU § There is only 1 petition and majority representation is met The LRO can grant certification in disputed cases when: § There is a dispute on the inclusion of some employees but majority is still attained w/o them. § There is a dispute on the BU but the LRO is convinced that majority will be maintained regardless. 12 Downloaded by Savannah Amber ([email protected])