The Trade Union Act Certifications

Transcription

1 The Trade Union Act Certifications THE CERTIFICATION PROCESS I. JOINING OR FORMING A TRADE UNION In Saskatchewan, like the rest of Canada, employees have the right to join or form a trade union and to have that trade union represent their collective interests. If Saskatchewan Labour Relations Board (The Board) determines it is appropriate, the workplace will be considered an organized workplace, which is legally created through a Certification Order, issued by the Board under its authority as contained in The Trade Union Act. That Certification Order is unique to the organized workplace and confirms the certified union as legally responsible to represent all employees for the purposes of negotiating agreements, representing and enforcing the terms and conditions of their employment relationship and any other matters deemed appropriate by that union. A trade union must be independent of the employer in order to qualify for a Certification Order under The Trade Union Act. If the employees decide that they wish to form their own association, they must be careful not to invite or allow their employer to influence the organization of that association so as to have it viewed as not independent. In considering a Certification Order request, the Board will determine if the bargaining unit is "appropriate. In other words, do the types of employees in the proposed unit have enough common interest that it would make sense for the purpose of collective bargaining with that employer. Before the issuance of a Certification Order, there are two distinct events that must occur; a. The Application b. The Vote II. THE APPLICATION If employees decide that they wish to be represented by a trade union they have the right to participate in the creation of an Application for Certification (Form 1) to the Board. In doing so, the employees may either contact an established trade union or form an employee association of their own. The application is advanced by the trade union or employees association to the Board Registrar. The application must contain support evidence that indicates the support of at least 45% of the employees in the workplace.

2 - 2 - This support evidence forms the basis of the application. Support evidence for an application is normally a document commonly referred to as a "support card" and that support card must be advanced to the Board with the application for certification. There are a number of important aspects to the support evidence ; The evidence of support card must be an original and not a copy There must be a separate card for each person The signed support card must be personally signed and dated. The cards must be signed no more than 90 days prior to the application being filed with the Board. Once filed with Board, the Board Registrar reviews the support evidence and the application. The support evidence is kept confidential to insure the identity of those employees indicating support for the application is not disclosed to the employer or to any other employees. The application, exclusive of the support evidence, is provided to the employer and if deemed necessary by the Board Registrar, any other trade unions directly affected. The certification application must contain the following information: 1. the legal name of the trade union or association (applicant) 2. the name and address of the contact person for the trade union; 3. the name and address of the employer; 4. a description of the proposed bargaining unit the trade union is asking to represent. (The bargaining unit is a description of the group an/or occupations of the employees the union will be seeking to represent); 5. an estimate of the number of employees currently in the proposed bargaining unit; 6. an indication if there is any other trade union which might claim to represent the same group of employees; 7. an indication if the applicant union is part of a national or international organization; and 8. a certified copy of the Constitution or Bylaws of the applicant trade union (unless one is already filed with the Board) or there are certification orders held by that trade union in the province of Saskatchewan. The application for certification contains a statutory declaration, which means that it must be signed and sworn by the person representing the trade union, before a Commissioner for Oaths in the Province of Saskatchewan, a Notary Public or a Justice of the Peace. In addition, there must be an original and two copies advanced to the Board. Processing of the Application when filed: An application is considered filed when a stamp form the Board is placed on the document. That stamp can be secured at the locations designated by the Executive Officer. There are two types of situations which will determine the processing utilized by the Board; A. Uncontented B. Contested When the application is filed, the Board Registrar or his/her designate will contact the Employer and advise them of the application.

3 - 3 - A. If the Employer has no objection to the application and there are no other Unions directly affected by the application, the matter will be considered as uncontested and the process is as follows; i) The Employer is directed to provide a list of all employees and their occupations, in regard to the proposed bargaining unit. That information can be provided electronically or by facsimile, directly to the Registrar. ii) Once the list of employees is received, the Registrar compares the list of names to those provided by the applicant and determines if the statutory threshold is achieved. iii) In addition, the list of names and occupations are also provided to the applicant union to review. Any discrepancies between the application list and those provided by the Employer are addressed with the parties, by the Registrar. iv) If the parties agree to the names, the matter is advanced for an Order directing the vote be taken. If the parties do not agree with the names, then the direction for vote may provide a further direction that may include that the vote be taken and sealed, or that certain persons in dispute have their ballots double enveloped, or some other direction deemed appropriate, until the matter is resolved by agreement or Order of the Board. v) The vote is set down by the Board Registrar, in consultation with the union and the employer. The vote usually occurs within a few days and time is of the essence to capture the wishes of the employees. vi) vii) The Board Registrar will invite both the union and the employer to have a scrutineer present during the taking of the vote and the tabulation if so ordered. Once the vote is completed, there is an objection period of three days, and if no objection and no further issues have arisen, the matter will be placed before an in camera panel, without the need of a formal hearing. B. If the Employer or some directly affected Union has an objection or has filed an Notice of Intervention, the matter will require a public hearing. As such, the matter is considered as a contested application and processed as follows; a. The Employer is directed to provide a list of all employees and their occupations through the production of a Statement of Employment. This requires the taking of signatures with a Union representative being allowed to be present, or in the alternative, sample signatures of all employees in the proposed bargaining unit, through copies of TD1 forms or other acceptable documents. That information must be contained in the Statement of Employment, duly sworn and provided in triplicate as a filing at the Board. The Employer is provided a period of ten (10) days from the date upon which the Registrar notifies the Employer of the Application. b. In addition, it is imperative that a Reply (Form 14), be filed. The Reply must be sworn and an original and two copies provided to the Board, within ten (10) days of the Board Registrar s notification. If a party, which is not directly affected, wishes to object, they must file a formal Notice of Intervention with the Board. They do not have the right of Reply, but will be provided the opportunity to make a

4 - 4 - submission. There is a time frame of ten (10) days in which a Reply must be filed, unless a request is made for extension and consideration is given to such a request. c. Once the Statement of Employment is filed, that statement is provided to the Union and the Registrar compares the list of names to those provided by the applicant and determines if the statutory threshold is achieved. d. If it is determined that the statutory threshold is achieved in regard to the application, the matter is advanced for an Order directing the vote be taken and sealed, subject to any disputed persons/positions/classifications, which may be ordered to be double enveloped, or some other direction deemed appropriate, until the matter is resolved by an Order of the Board. III. THE VOTE ORDER Once the Order for Vote is issued, the Board Registrar will advance the Order and shortly thereafter, the notice of vote instructing the employer to post that notice for the application for certification and that it is being considered for that workplace. The employer is required to post the notice in each work site affected by the application and to post in a location that is easily accessible to all employees. The notice of vote will include the Order for Vote, the list of those deemed eligible to vote and the proposed bargaining unit. In order to be eligible to vote the employee must have been an employee at the time of the application and still employed at the time of the taking of the vote Employers must also adhere to the following: 1. communications to employees is permitted but must be factual and avoid aligning the union or intimidating the participating employees; 2. employers are not permitted to restrain or coerce an employee from exercising their right to participate in unionization; and 3. employers must continue normal business practices. This means no unscheduled changes in rates of pay or other terms or conditions of employment can be made during this period without the Labour Relations Board's written permission. How the vote takes place; The certification vote will be conducted, usually within a few days of the Order, by an designated Board Agent, who may be the Returning Officer. They may appoint a Deputy Returning Officer or other election officials as necessary. The Board Agent will prepare a tentative "Voter's List" (a list of employees eligible to vote) based on the payroll records provided by the employer. The employer will be required by the Board Agent to post Notices of Vote (Form 16) - indicating the time, date and place at the workplace where the vote will be conducted and a copy of the Voter s List. Voting is conducted by secret ballot. The Board Agent will take all necessary steps to ensure the confidentiality of the vote and to maintain the neutrality of the polling place. Persons are not permitted to engage in electioneering nor advocate for one outcome or another at or near the polling place on the day of the vote.

5 - 5 - Both the union and the employer are entitled to have scrutineers present during the conduct of the vote. Scrutineers may challenge the eligibility of an employee to vote or the counting of the vote. In the event there is no agreement on the conduct of the vote, or an eligibility challenge on a particular voter, the ballot(s) will be double enveloped. This is done by the voter placing his/her ballot into an unmarked envelope provided and then placing that envelope into a larger second envelope which contains the name address and signature of that employee. It is then placed into the ballot box. After all eligible voters have voted the ballots will not be counted; rather the box will be sealed until further direction is received from the Board. Where the vote is conducted without issue, the ballots will be counted in accordance with the Direction for Vote, which is normally immediately following the balloting, by the Board Agent, who will confirm the results of the vote with the scrutineers for the parties. It is the responsibility of the scrutineers to relay the results to their respective principals. Should there not be a scrutineer for either the employer or trade union, the results will be reported to the Board and the parties by the Board Agent. Any person directly affected by the outcome of a certification vote may file an Objection (Form 19) with the Board if they have a concern regarding the conduct of the vote or the counting of the ballots. Such objections must be filed with the Board Registrar within three (3) days following the conduct of the vote. IV. THE HEARING PROCESS A Hearing may only be required if there is a contest to the application or to the vote s process. A successful Certification Vote requires both: 1. that a majority of eligible employees in the proposed bargaining unit cast ballots in the election; and 2. a majority of voters vote in favour of being represented by a trade union or employee association If this occurs without issue, the hearing will be cancelled and there will be an in-camera hearing (a confidential hearing with a three person panel of the board and no other participants) and a Certification Order may be issued. This Order has the legal effect of making the trade union the exclusive representative of all of the employees in the bargaining unit. The employer is required to bargain collectively with the trade union about the terms and conditions of employment of the employees, as well to negotiate for settlements with the trade union of any grievances or disputes. Alternately, if the vote was not in favour of a union, the application may be dismissed. However, if there is a problem, (e.g.: objections about the conduct or outcome of the vote), the hearing will proceed as scheduled. This will involve a court-like setting, process and rules. After the hearing, the Board will determine (decide) the matter and the decision will be provided in writing following the hearing. The length of time will depend on the complexity of the issues and the schedule of the Board, but the Board does make an effort to issue their decisions as quickly as possible.

6 - 6 - Please note that the Board has a policy of not considering evidence of support or withdrawal of support filed with it after an application for certification or rescission is received (see s.10 of The Trade Union Act.) This leaflet is meant to provide informal guidance and information only. It does not have legal status and is not a formal interpretation of The Trade Union Act or its Regulations. For inquiries, more information, please contact the Saskatchewan Labour Relations Board at (306) or see our website at Other possible resources: For Unions: For Employers: Saskatchewan Federation of Labour Saskatchewan Provincial Building and Construction Trades Council The Law Society of Saskatchewan