On November 7, 2024, major amendments to The Labour Relations Act (LRA) were proclaimed in force, significantly altering the labour relations balance between Management and Labour.

 

The amendments related to three main areas:

  • 50% + 1 card check system
  • Ban on Replacement Workers
  • Essential Services

Notably, the amendments were contained in a much larger piece of legislation known as Bill 17, The Budget Implementation and Tax Statutes Amendment Act 2024 (BITSA).  Because the labour amendments were contained in this legislation, no opportunity was provided to the public to make presentations to members of the legislative assembly in public hearings which must be conducted with all other forms of pending legislation.

 

50% + 1 CARD CHECK SYSTEM

 

Allowing automatic certification without a secret ballot vote if the Union demonstrates the support of more than 50% of the employees of the bargaining unit.

 

Automatic Certification, Representation Vote or Dismissal

 

The BITSA amendments make changes concerning representation votes in section 40(1) of the LRA. Essentially, the changes require that the Manitoba Labour Board (the “Board”) automatically certify a union as a bargaining agent for the unit if the union receives support from more than 50% of employees in the unit. Normally support is demonstrated by an application for membership signed by the employee, but the Board also will accept evidence of membership in good standing with the Union which may derive from previous employment. If the union receives support of at least 40% but fewer than 50% of employees in the unit, then the Board must conduct a vote by secret ballot of all employees in the unit. If the union receives support from fewer than 40% of the employees in the unit, the Board will dismiss the union’s application for certification unless an unfair labour practice complaint has been filed.

 

Interim Certification

 

The Manitoba Legislature amended the LRA to change the process used by the Board when certifying a union as a bargaining unit on an interim basis. Specifically, the amendment allows the Board to certify a union (that has applied for certification) on an interim basis even if there are disputes surrounding the composition of that unit, so long as the Board is satisfied that those disputes cannot affect the union’s right to certification. Once a union is certified on an interim basis, the certified union or the employer may give notice to commence collective bargaining under section 60 of the LRA. The Board shall issue a final certificate once it determines the composition of the unit.

 

Notably, when a union is certified on an interim basis, the amendment states that the time period referred to in subsection 35(1) does not begin to run until the date of final certification. This means that when a union is certified on an interim basis, another union is not required to wait before applying for certification. Once the interim union is granted final certification, the other union is required to abide by the time frames outlined in subsection 35(1) before applying for certification.

 

BAN ON REPLACEMENT WORKERS PREVENTING EMPLOYERS FROM REPLACING EMPLOYEES WHO ARE ON STRIKE OR LOCKED OUT

 

Replacement workers and others are prohibited during strikes or lockouts.

 

Schedule D of BITSA amends the LRA to prohibit the use of replacement workers during a strike or lockout except in strictly limited circumstances.

 

Part V of the LRA is amended to add new sections prohibiting the use of replacement workers and other individuals during a legal strike or lockout.

 

Specifically, an employer is not allowed to use the services, paid or unpaid, of the following persons, as replacement workers to perform the work of an employee in a unit that is on strike or locked out, or to perform the work normally performed by an employee in the unit that is on strike or locked out:

  • a person hired or engaged after the date on which notice to start collective bargaining has been given
  • a person who ordinarily works at another workplace of the employer, other than a person who performs management functions primarily, or who is “employed in a confidential capacity in matters relating to labour relations”
  • a person transferred, after the date on which notice to start collective bargaining has been given, to the workplace where the strike or lockout is occurring
  • a person who is employed, engaged or supplied to the employer by another person
  • an employee at the workplace where the strike or lockout is occurring who is in a unit that is not on strike or locked out

 

During a legal strike or lockout that is intended to involve the cessation of work by all employees in the bargaining unit, the employer is not allowed to use the services of any employee in that unit except to comply with an order relating to essential services, such as a return to work order, or to attend to situations where there exists a threat to life, safety or health; of destruction or damage to employer property; or environmental damage.

 

An employer or a person acting on behalf of an employer who fails to comply with the prohibition on the use of replacement workers during a legal strike or lockout commits an unfair labour practice.

 

Exceptions to prohibition on replacement workers

 

Very limited exceptions are made for employers to use replacement workers or others during a strike or lockout.

 

Persons hired or provided to the employer before notice to commence collective bargaining was given, to perform the work of or similar work to employees who are on strike or locked out, may continue to be used by the employer throughout the strike or lockout involving the unit.

 

The employer may use the services of persons prohibited as replacement workers strictly to deal with a workplace situation that presents or could present:

  • a threat to the life, health or safety of anyone
  • a threat of destruction or serious damage to the employer’s property or premises
  • a threat of serious environmental damage

 

The exception to the prohibition of the employer to use replacement workers only applies in dealing with the three noted types of threats if there are no other means available to the employer to deal with a given threat. The exception for dealing with actual or imminent threats does not include using replacement workers for the purpose of continuing the supply of services, operation of facilities or production of goods, except if they are considered “essential services”.

 

Anti-Replacement Worker Legislation is Complex and Untested

 

The legislation is complex and untested and, because violation is an unfair labour practice, an employer who runs afoul of the legislation risks significant financial and other penalties.  Accordingly, expert advice prior to a strike or lockout is recommended.

 

ESSENTIAL SERVICES

 

Essential services which must be maintained during a strike or lockout – a two-part test

 

Requirement for Essential Services Agreement, if applicable

 

The BITSA amendments to the LRA also require essential services in all Manitoba unionized employment environments to be maintained and determined in an agreement between an employer and a bargaining unit and filed with the Board.  At the same time, the BITSA amendments repeal other legislation dealing with essential services, namely The Essential Services Act (Government and Child and Family Services), CCSM c E145, and The Essential Services Act (Health Care), CCSM c E146.

 

Essential services to be addressed

 

Part V of the LRA is amended to add a new provision to require the matter of essential services to be addressed before a strike or a lockout may be declared or imposed. The bargaining agent and the employer must either enter into an Essential Services Agreement (ESA) filed with the Board, or they must file a determination with the Board that no ESA is required, or if the parties do not enter into an ESA they are subject to a determination of essential services, if any, by the Board or by an Arbitrator and filed with the Board.

 

Meaning of “essential services”

 

An employer and the employees in a given unit are considered to provide “essential services” if the employer and the bargaining agent for the unit have entered into an ESA or a determination has been made by the Board or an Arbitrator, that requires one or more employees continue to supply services, to operate facilities or to produce goods in the event of a lockout or strike.

 

Definition of essential services

 

New sections 94.3 to 94.6 added to Part V of the LRA relate to the determination of and maintenance of essential services in the event of a legal strike or lockout. The employer, the bargaining agent and the employees in the unit affected must continue to provide essential services including the supply of services, the operation of facilities or the production of goods which are necessary:

  • to prevent a threat to the health, safety or welfare of Manitobans
  • to maintain the administration of justice
  • to prevent a threat of serious environmental damage

 

(The new LRA sections 94.3 to 94.5 relating to essential services during a strike or lockout do not apply to employees in a unit who are prohibited from striking and to the employer and the bargaining agent of those employees).

 

Notice of strike or lockout re essential services

 

A bargaining agent for an employee unit that provides essential services must provide the employer with written notice at least three days before it intends to declare or authorize a strike of those employees.

 

Likewise, an employer that provides essential services must advise the bargaining agent representing its employees with at least three days’ notice, in writing, of the date it intends to commence a lockout of the employees.

 

If the strike or lockout for which notice has been given does not commence on the date indicated in the respective notice, a new notice under the same LRA provision must be issued if a strike or lockout is still intended and is to start on a different date.

 

Determination re necessity for ESA by parties or Board order (Step 1)

 

Within 180 days of the expiry of a collective agreement, the parties must determine whether there are essential services that must be continued in the event of a lockout or a legal strike involving the affected unit. The Manitoba Labour Board may issue a guideline to assist the parties in determining whether such an essential services agreement (“ESA”) is required. The determination of the parties, in writing, must be filed with the Board and has the same effect as an order of the Board.

 

If the parties are unable to come to an agreement on whether an ESA is required, or if they determine none is necessary but the Minister disagrees, either party or the Minister may make an application for the Board to make a determination on whether an ESA is required.

 

The Board may make an order to designate the supply of essential services or other measures it considers necessary in the event of a legal strike or a lockout. Though the amendments to the LRA require the Board to make its determination within 30 days of having received an application by either party or the Minister, the Board’s failure to meet the deadline does not affect its jurisdiction to continue to make a determination nor the validity of the determination.

 

Essential Services Agreement (Step 2)

 

If the parties to a collective agreement or the Board determine an ESA is required, the parties must enter into an ESA within 90 days of the expiry of the collective agreement and immediately file it with the Board, at which time it will have the same effect as an order of the Board.

 

The ESA must indicate details of the manner and the extent to which the essential services must be continued, including the number of employees that are required to maintain the provision of essential services, in the event of a legal strike or a lockout.

 

If the parties do not enter into the required ESA within 90 days of the expiry of the collective agreement, the Board must determine, upon application by either party, any question relating to the ESA. Likewise, the Minister may refer to the Board any question about whether the ESA is sufficient to maintain essential services. The Board must make a determination about a question by the parties or by the Minister within 30 days of its receipt, but again, if the Board does not meet the statutory deadline, it retains jurisdiction to continue to make a determination and its validity is not affected by the delay.

 

The employer and the bargaining agent may enter into an ESA and file it with the Board at any time before the Board has made its determination about an application by either party, and the Board will cease to be seized of the application.

 

Otherwise, if the Board determines in response to an application by either party or to a referral by the Minister that a proposed ESA could result in a failure to maintain essential services during a potential lockout or strike, the Board may make an order specifying terms it considers necessary for the ESA.

 

Arbitration re ESA

 

After filing an application to the Board to settle a question about the ESA, the parties have two days to serve notice to the Board if they choose instead to settle the issue through arbitration and naming the Arbitrator who has agreed to act. The Arbitrator has 30 days after notice is given to the Board to determine the matter and to file the decision with the Board, at which time it has the same effect as an order of the Board.

 

If a legal strike or lockout between the parties does occur, the same Arbitrator must settle any dispute about the self-same determined ESA within two days of application to do so by either the employer or the bargaining agent.

 

An Arbitrator retains jurisdiction to determine the terms of the ESA, or to settle a dispute relating to it, in the event of a lockout or strike even if the Arbitrator does not meet the indicated deadlines in either situation.

 

Only if the Arbitrator is unable or unwilling to act, and the parties are unable to agree on a new Arbitrator, may the parties defer to the Board to settle any dispute about the Arbitrator’s determination about the ESA during a lockout or a strike. During a lockout or a strike, upon request by either the employer or the bargaining agent, or by the Minister, the Board may confirm, amend or cancel an existing ESA or make any order it considers appropriate in the matter of the ESA.

 

Order of return to work

 

An employer and any employee affected by any determination relating to the LRA provisions about essential services that have the effect of an order of the Board must comply with such an order.

 

Regardless of whether the collective agreement between the employer and the bargaining agent has expired or has been terminated, the collective agreement continues while a Board order relating to essential services is in effect, except insofar that it is amended by the Board to enable the essential services order to be implemented.

 

During a legal strike or a lockout an employee required to return to work under a Board order to maintain essential services must be allowed to do so, and any employer, union or other person who fails to comply with the terms of the ESA or related orders of the Board commits an unfair labour practice. However, either the employer or the bargaining agent may apply the Board to determine that its order “substantially interferes” with “meaningful” collective bargaining, and if the Board finds it is so, it may make an order that all matters in dispute between the parties are to be settled.

 

Transitional provisions

 

Schedule D of BITSA, 2024, repeals The Essential Services Act (Government and Child and Family Services) and The Essential Services Act (Health Care).

 

However, an essential services agreement entered into under either of those Acts continues to be in force in accordance with the terms agreed to under the respective former Act, and if one of the parties to it files it with the Board before the agreement expires, it is considered to be an agreement filed with the Board under the new provisions relating to essential services in the LRA.

 

The new LRA sections relating to essential services in BITSA, 2024, Schedule D, came into force on 07 November 2024. If by that date a time period for applying to the Board about a matter relating to an essential services agreement under the new section 94.3 has already expired, a party to a collective agreement may proceed immediately to make an application to the Board.

 

Conclusion

 

As indicated, the coming into force of the BITSA amendments to the LRA dramatically change the balance between Management and Labour.

 

The provisions substituting automatic certification if a card check demonstrates 50% + 1 support for the Union, eliminates the secret ballot vote as the standard means of testing union support.  This means that employee wishes will be demonstrated as a result of face-to-face interactions or evidence of membership in good standing which could come as a result of employment elsewhere which has a collective agreement requiring membership as a condition of employment, rather than through a secret ballot vote.  This means that employers will have to be alert to “hard sell” union membership drives.

 

The ban on replacement workers goes well beyond what is traditionally considered to be a “replacement worker”, namely a person who is hired for the express purpose of replacing employees who are on strike or locked out.  How widely the net is cast, and the application of exceptions remains to be determined.

 

Essential Services legislation in Manitoba is now more extensive than the legislation which it replaced.  It is possible that the definition of an “essential service” may be met in the construction industry under certain circumstances (particularly relating to environmental damage).  Again, this will have to be worked out over the coming months and years.

 

When challenges arise, Pitblado Law can help you navigate the murky waters of general labour relations. Our Labour and Employment team works with you to ensure all workplace relations are conducted properly and that you comply with all labour legislation. For more information on the amendments to the LRA and how they impact your business, please contact:

 

William Gardner, K.C.
Partner
204.956.3560
[email protected]

 

Note: This article is of a general nature only and is not presented as a comprehensive review of the law or as being exhaustive of all possible legal rights or remedies. This article is not intended to be relied upon or taken as legal advice or opinion. Readers should consult a legal professional for specific advice applicable to their own circumstances. We do not undertake any obligation to update this article to reflect changes in law that may occur in the future.