Rights, Duties and Unfair Labour Practices
4 (1) Every employee is free to be a member of a trade union and to participate in its lawful activities.
(2) Every employer is free to be a member of an employers' organization and to participate in its lawful activities.
5 (1) A person must not
(a) refuse to employ or refuse to continue to employ a person,
(b) threaten dismissal of or otherwise threaten a person,
(c) discriminate against or threaten to discriminate against a person with respect to employment or a term or condition of employment or membership in a trade union, or
(d) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that the person may testify in a proceeding under this Code or because the person has made or is about to make a disclosure that may be required of the person in a proceeding under this Code or because the person has made an application, filed a complaint or otherwise exercised a right conferred under this Code or because the person has participated or is about to participate in a proceeding under this Code.
(2) If no collective agreement respecting a unit is in force and a complaint is filed with the board alleging that an employee in that unit has been discharged, suspended, transferred or laid off from employment or otherwise disciplined in contravention of this Code, the board must forthwith inquire into the matter and, if the complaint is not settled or withdrawn, the board must
(a) commence a hearing on the complaint within 3 days of its filing,
(b) promptly proceed with the hearing without interruption, except for any necessary adjournments, and
(c) render a decision on the complaint within 2 days of the completion of the hearing.
6 (1) Except as otherwise provided in section 8, an employer or a person acting on behalf of an employer must not participate in or interfere with the formation, selection or administration of a trade union or contribute financial or other support to it.
(2) Despite this section, an employer may permit an employee or representative of a trade union to confer with the employer during working hours or to attend to the trade union's business during working hours without deducting time so occupied in computing the time worked for the employer and without deducting wages for that time.
(3) An employer or a person acting on behalf of an employer must not
(a) discharge, suspend, transfer, lay off or otherwise discipline an employee, refuse to employ or to continue to employ a person or discriminate against a person in regard to employment or a condition of employment because the person
(i) is or proposes to become or seeks to induce another person to become a member or officer of a trade union, or
(ii) participates in the promotion, formation or administration of a trade union,
(b) discharge, suspend, transfer, lay off or otherwise discipline an employee except for proper cause when a trade union is in the process of conducting a certification campaign for employees of that employer,
(c) impose in a contract of employment a condition that seeks to restrain an employee from exercising his or her rights under this Code,
(d) seek by intimidation, by dismissal, by threat of dismissal or by any other kind of threat, or by the imposition of a penalty, or by a promise, or by a wage increase, or by altering any other terms or conditions of employment, to compel or to induce an employee to refrain from becoming or continuing to be a member or officer or representative of a trade union,
(e) use or authorize or permit the use of the services of a person in contravention of section 68, or
(f) refuse to agree with a trade union, certified under this Code as the bargaining agent for his or her employees who have been engaged in collective bargaining to conclude their first collective agreement, that all employees in the unit, whether or not members of the trade union, but excluding those exempted under section 17, will pay union dues from time to time to the trade union.
(4) Despite subsection (3), except as expressly provided, this Code must not be interpreted to limit or otherwise affect the right of the employer to
(a) discharge, suspend, transfer, lay off or otherwise discipline an employee for proper cause, or
(b) make a change in the operation of the employer's business reasonably necessary for the proper conduct of that business.
7 (1) Except with the employer's consent, a trade union or person acting on its behalf must not attempt, at the employer's place of employment during working hours, to persuade an employee of the employer to join or not join a trade union.
(2) If employees reside on their employer's property or on property to which the employer or another person has the right to control access or entry, the employer or other person must on the board's direction permit a representative authorized in writing by a trade union to enter the property to attempt to persuade the employees to join a trade union and, if the trade union acquires bargaining rights, after that to enter the property to conduct business of the trade union.
(3) If directed by the board and on request by the trade union representative, the employer must provide the representative with food and lodging at the current price and of a similar kind and quality as that provided to the employees.
8 Subject to the regulations, a person has the freedom to express his or her views on any matter, including matters relating to an employer, a trade union or the representation of employees by a trade union, provided that the person does not use intimidation or coercion.
9 A person must not use coercion or intimidation of any kind that could reasonably have the effect of compelling or inducing a person to become or to refrain from becoming or to continue or cease to be a member of a trade union.
10 (1) Every person has a right to the application of the principles of natural justice in respect of all disputes relating to
(a) matters in the constitution of the trade union,
(b) the person's membership in a trade union, or
(c) discipline by a trade union.
(2) A trade union must not expel, suspend or impose a penalty on a member or refuse membership in the trade union to a person, or impose any penalty or make any special levy on a person as a condition of admission to membership in the trade union or council of trade unions
(a) if in doing so the trade union acts in a discriminatory manner, or
(b) because that member or person has refused or failed to participate in activity prohibited by this Code.
(3) If a trade union charges, levies or prescribes different initiation fees, dues or assessments in respect of a person according to whether the person applies or has applied for membership in the trade union before or after an application for certification by the trade union to represent the person as bargaining agent, the fees, dues or assessments are deemed to be discriminatory for the purpose of subsection (2) (a).
11 (1) A trade union or employer must not fail or refuse to bargain collectively in good faith in British Columbia and to make every reasonable effort to conclude a collective agreement.
(2) If a trade union and the employer have concluded a collective agreement outside British Columbia, it is invalid in British Columbia until a majority of the employees in British Columbia covered by the agreement ratify it.
12 (1) A trade union or council of trade unions must not act in a manner that is arbitrary, discriminatory or in bad faith
(a) in representing any of the employees in an appropriate bargaining unit, or
(b) in the referral of persons to employment
whether or not the employees or persons are members of the trade union or a constituent union of the council of trade unions.
(2) It is not a violation of subsection (1) for a trade union to enter into an agreement under which
(a) an employer is permitted to hire by name certain trade union members,
(b) a hiring preference is provided to trade union members resident in a particular geographic area, or
(c) an employer is permitted to hire by name persons to be engaged to perform supervisory duties.
(3) An employers' organization must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employers in the group appropriate for collective bargaining.
13 (1) If a written complaint is made to the board that a trade union, council of trade unions or employers' organization has contravened section 12, the following procedure must be followed:
(a) a panel of the board must determine whether or not it considers that the complaint discloses a case that the contravention has apparently occurred;
(b) if the panel considers that the complaint discloses sufficient evidence that the contravention has apparently occurred, it must
(i) serve a notice of the complaint on the trade union, council of trade unions or employers' organization against which the complaint is made and invite a reply to the complaint from the trade union, council of trade unions or employers' organization, and
(ii) dismiss the complaint or refer it to the board for a hearing.
(2) If the board is satisfied that the trade union, council of trade unions or employers' organization contravened section 12, the board may make an order or direction referred to in section 14 (4) (a), (b) or (d).
14 (1) If a written complaint is made to the board that any person is committing an act prohibited by section 5, 6, 7, 9, 10, 11 or 12, the board must serve a notice of the complaint on the person against whom it is made and on any other person affected by it.
(2) The board may appoint an officer to inquire into the complaint and attempt to settle the matter complained of, and the officer must report the results of his or her inquiry and endeavours to the board.
(3) If an appointment is not made under subsection (2), or the officer is unable to settle the matter, the board may inquire into the complaint.
(4) If, on inquiry, the board is satisfied that any person is doing, or has done, an act prohibited by section 5, 6, 7, 9, 10, 11 or 12, it may
(a) make an order directing the person to cease doing the act,
(b) in the same or a subsequent order, direct any person to rectify the act,
(c) in the case of an employer, include a direction to reinstate and pay an employee a sum equal to wages lost due to his or her discharge, suspension, transfer, layoff or other disciplinary action contrary to section 6 (3) (a) or (b),
(d) in the case of a trade union, include a direction to reinstate a person to membership in the trade union and pay to that person
(i) a sum equal to wages lost due to his or her expulsion or suspension contrary to section 10, and
(ii) the amount of any penalty, levy, fee, dues or assessment imposed on him or her contrary to section 10,
(e) in the same or a subsequent order, direct the employer not to increase or decrease wages, or alter a term or condition of employment of the employees affected by the order for a period not exceeding 30 days without written permission of the board, and the board may extend this order for a further period not exceeding 30 days, and
(f) despite section 25 (3), if the employees affected by the order are seeking trade union representation and the board is of the opinion that the union would likely have obtained the requisite support had it not been for the act prohibited by section 5, 6, 7, 9, 10, 11 or 12, certify the trade union.
(5) The board may impose conditions it considers necessary or advisable on a trade union that is certified under subsection (4) (f), and if the conditions are not substantially fulfilled to the board's satisfaction within 12 months from the date of the certification, or in a lesser period ordered by the board, the certification is deemed to be cancelled.
(6) If in the board's opinion a complaint under subsection (1) is without merit, it may reject the complaint at any time.
(7) On an inquiry by the board into a complaint under section 6 (3) (a) or (b), the burden of proof that the employer did not contravene paragraph (a) or (b) lies on the employer.
15 (1) Nothing in this Code is to be construed as precluding the parties to a collective agreement from inserting in it, or carrying out, a provision
(a) requiring membership in a specified trade union as a condition of employment, or
(b) granting preference in employment to members of a specified trade union.
(2) Despite subsection (1), a trade union or person acting on its behalf must not require an employer to terminate the employment of an employee due to his or her expulsion or suspension from that trade union on the ground that he or she is or was a member of another trade union.
16 (1) An employer must honour an employee's written assignment of wages to a trade union certified as the bargaining agent for his or her employees under this Code, unless the assignment is declared null and void by the board, or is revoked by the assignor.
(2) The assignment must be substantially in the following form:
To [name of employer].
Until this authority is revoked by me in writing, I authorize you to deduct from my wages and to pay to [name of the trade union] fees and dues in the amounts following:
(1) Initiation fees in the amount $__________;
(2) Dues of $__________ per __________;
(3) Dues of _____% of hourly, weekly or monthly wages.
(3) Unless an assignor of wages revokes the assignment by written notice to the employer, or the board declares an assignment to be null and void, the employer must remit at least once each month to the trade union certified under this Code and named in the assignment the fees and dues deducted, with a written statement containing the names of the employees for whom deductions were made and the amount of each deduction.
(4) If an assignment is revoked, the employer must give a copy of the revocation to the assignee.
(5) Despite subsections (1), (2) and (3), the employer has no financial responsibility for the fees or dues of an employee, unless the employer owes the employee sufficient unpaid wages to pay the fees and dues assigned.
17 (1) If the board is satisfied that an employee, because of his or her religious conviction or belief
(a) objects to joining trade unions generally, or
(b) objects to the paying of dues or other assessments to trade unions generally
the board may order that the provisions of a collective agreement of the type referred to in section 15 do not apply to the employee and that the employee is not required to join a trade union, to be or continue to be a member of a trade union, or to pay any dues, fees or assessments to the trade union, if amounts equal to any initiation fees, dues or other assessments are paid by the employee to or are remitted by the employer to a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada) that may be designated by the board.
(2) Despite any other provision of this Code, a person exempted under subsection (1) is not entitled to participate in a vote conducted by a trade union or in a vote held for the purposes of this Code.
Part 3 — Acquisition and Termination of Bargaining Rights
Division 1 — Acquisition of Bargaining Rights
18 (1) If a collective agreement is not in force and a trade union is not certified as bargaining agent for a unit appropriate for collective bargaining, a trade union claiming to have as members in good standing not less than 45% of the employees in that unit may at any time, subject to the regulations, apply to the board to be certified for the unit.
(2) If a collective agreement is not in force and a trade union is certified as bargaining agent for a unit appropriate for collective bargaining, a trade union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining may, subject to the regulations, apply to the board to be certified for the unit if either
(a) 6 months have elapsed since the date of certification of a trade union for the unit, or
(b) the board has consented to an application before the expiry of the 6 months.
(3) Unless the board consents, a trade union is not permitted to make an application under subsection (2) during a strike or lockout.
(4) Despite this section and section 19
(a) a trade union that is a party to a collective agreement, but is not certified for the employees covered by it, may apply to be certified at any time, and
(b) a council of trade unions comprised of trade unions that are parties to collective agreements may apply to be certified at any time in place of those trade unions.
19 (1) If a collective agreement is in force, a trade union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining may apply to the board to be certified for the unit during the seventh and eighth months in each year of the collective agreement or any renewal or continuation of it.
(2) Despite subsection (1), an application for certification may not be made within 22 months of a previous application under that subsection if the previous application resulted in a decision by the board on the merits of the application.
(3) Unless the board consents, a trade union is not permitted to make an application under this section during a strike or lockout.
20 Two or more trade unions claiming to have together as members in good standing a majority of employees in a unit appropriate for collective bargaining may join in an application under this Part, and the provisions of this Code relating to an application by one trade union, and all matters or things arising from it, apply to the application and those trade unions as if one trade union were applying.
21 (1) If one or more employees belong to a craft or group exercising technical or professional skills that distinguish it from the employees as a whole, and they are members of one trade union pertaining to the craft or skills, the trade union may, subject to sections 18, 19, 20, 24 and 25, apply to the board to be certified as the bargaining agent for the group if it is otherwise an appropriate bargaining unit.
(2) A trade union claiming to have as members in good standing a majority of the employees in a unit for which a craft or professional trade union is the bargaining agent under this section may apply to the board to have the unit included in another unit, and sections 18, 19, 20, 24 and 25 apply.
(3) If an application is not made under subsection (2), the employees in the unit for which a craft or professional trade union is the bargaining agent under this section must be excluded from another unit for the purpose of collective bargaining and must not be taken into account as members of another unit for purposes of this Code.
22 (1) When a trade union applies for certification as the bargaining agent for a unit, the board must determine if the unit is appropriate for collective bargaining and may, before certification, include additional employees in or exclude employees from the unit.
(2) The board must
(a) make or cause to be made the examination of records and other inquiries including the holding of hearings it considers necessary to determine the merits of an application for certification, and
(b) specify the nature of the evidence the applicant must furnish in support of the application and the manner of application.
(3) Membership in good standing in a trade union must be determined on the basis of membership requirements prescribed in the regulations.
23 [Repealed 2001-33-3.]
24 (1) If the board receives an application for certification under this Part and the board is satisfied that on the date the board receives the application at least 45% of the employees in the unit are members in good standing of the trade union, the board must order that a representation vote be taken among the employees in that unit.
(2) A representation vote under subsection (1) must be conducted within 10 days from the date the board receives the application for certification or, if the vote is to be conducted by mail, within a longer period the board orders.
(3) The board may direct that another representation vote be conducted if less than 55% of the employees in the unit cast ballots.
25 (1) When a representation vote is taken, a majority must be determined as the majority of the employees in the unit who cast ballots.
(2) If after a representation vote is taken, the board is satisfied that
(a) the majority of votes favour representation by the trade union, and
(b) the unit is appropriate for collective bargaining,
the board must certify the trade union as the bargaining agent for the unit.
(3) If after a representation vote is taken, the board is
(a) satisfied that the majority of votes are not in favour of the trade union representing the unit as its bargaining agent, or
(b) not satisfied that the unit is appropriate for collective bargaining,
the trade union may not be certified as bargaining agent for the unit.
26 [Repealed 2001-33-5.]
27 (1) If a trade union is certified as the bargaining agent for an appropriate bargaining unit,
(a) it has exclusive authority to bargain collectively for the unit and to bind it by a collective agreement until the certification is cancelled,
(b) if another trade union has been certified as the bargaining agent for the unit, the certification of that other trade union is cancelled for the unit, and
(c) if a collective agreement binding on the unit is in force at the date of certification, the agreement remains in force.
(2) Despite subsection (1) (c) and except if the trade union party to the collective agreement obtains the certification, the rights and obligations that were conferred or imposed by the collective agreement on the trade union party to the collective agreement cease in so far as that trade union is concerned, and are conferred or imposed on the trade union certified as the bargaining agent.
28 (1) If an application for certification is made for a unit consisting of, or including, dependent contractors, and the application meets the requirements of sections 24 and 25, the board must
(a) if there is no other certified unit of employees of the same employer, determine whether the unit applied for is appropriate for collective bargaining and, if so, certify that unit, or
(b) if there is a certified unit of employees of the same employer, determine whether inclusion of the dependent contractors in the existing unit would be more appropriate for collective bargaining and, if so, require that an application be made to vary the certification.
(2) If the board has determined under subsection (1) (b) that a variance of the existing bargaining unit would be more appropriate for collective bargaining and an application for variance is made, the board must
(a) determine what rights, privileges and duties have been acquired or are retained, and for this purpose the board may make inquiries or direct that a representation vote be taken as it considers necessary or advisable,
(b) ensure that reasonable procedures have been developed to integrate dependent contractors and employees into a single bargaining unit,
(c) modify or restrict the operation or effect of a collective agreement in order to determine the seniority rights under it of employees or dependent contractors, and
(d) give directions that the board considers necessary or advisable as to the interpretation and application of a collective agreement affecting the employees and dependent contractors in a unit determined under this section to be appropriate for collective bargaining.
29 If a trade union applies for certification as the bargaining agent for a unit consisting of
(a) employees who supervise other employees, and
(b) any of the other employees,
the board may certify the trade union for the unit, for a unit consisting only of employees who supervise or for a unit composed of some or all of the other employees.
30 If the trade union is not certified as the bargaining agent under section 25, or a cancellation of certification is refused under section 33 (4) (b), the board may designate the length of time, not less than 90 days, that must elapse before a new application by the same applicant may be considered.
31 An organization or association of employees
(a) the formation, administration, management or policy of which is, in the board's opinion, dominated or influenced by an employer or a person acting on his or her behalf, or
(b) that discriminates against a person contrary to the Human Rights Code,
must not be certified for the employees, and an agreement entered into between that organization or association of employees and the employer is deemed not to be a collective agreement.
32 (1) If an application for certification is pending, a trade union or person affected by the application must not declare or engage in a strike, an employer must not declare a lockout, and an employer must not increase or decrease rates of pay or alter a term or condition of employment of the employees affected by the application, without the board's written permission.
(2) This section must not be construed as affecting the right of an employer to suspend, transfer, lay off, discharge or otherwise discipline an employee for proper cause.
Division 2 — Revocation of Bargaining Rights
33 (1) If at any time after a trade union has been certified for a unit the board is satisfied, after the investigation it considers necessary or advisable, that the trade union has ceased to be a trade union, or that the employer has ceased to be the employer of the employees in the unit, it may cancel the certification.
(2) If a trade union is certified as the bargaining agent for a unit and not less than 45% of the employees in the unit sign an application for cancellation of the certification, the board must order that a representation vote be conducted within 10 days of the date of the application or, if the vote is to be conducted by mail, within a longer period the board orders.
(3) An application referred to in subsection (2) may not be made
(a) during the 10 months immediately following the certification of the trade union as the bargaining agent for the unit,
(b) during the 10 months immediately following a refusal under subsection (6) to cancel the certification of that trade union, or
(c) during a period designated by the board under section 30 following a refusal under subsection (4) (b) of this section to cancel the certification of that trade union.
(4) After a representation vote ordered under subsection (2) is held the board must,
(a) if the majority of the votes included in the count are against having the trade union represent the unit as the bargaining agent, cancel the certification of the trade union as the bargaining agent for that unit, or
(b) if the majority of votes included in the count favour having the trade union represent the unit as bargaining agent, refuse the application.
(5) The board may direct that another representation vote be taken if
(a) a representation vote was taken under subsection (2), and
(b) less than 55% of eligible employees cast ballots.
(6) If an application is made under subsection (2), the board may, despite subsections (2) and (4), cancel or refuse to cancel the certification of a trade union as bargaining agent for a unit without a representation vote being held, or without regard to the result of a representation vote, in any case where
(a) any employees in the unit are affected by an order under section 14, or
(b) the board considers that because of improper interference by any person a representation vote is unlikely to disclose the true wishes of the employees.
(7) Despite subsection (10), if the certification of a trade union as the bargaining agent for a unit is cancelled under subsection (6), that trade union must not, during the 10 months immediately following the cancellation, apply for certification as the bargaining agent for employees in the unit.
(8) Subject to subsection (9), if the certification of a trade union as the bargaining agent is cancelled under any provision of this Code, a collective agreement between the trade union and the employer of the employees in the unit for which the certification is cancelled is void with respect to that unit.
(9) Nothing in subsection (8) affects the operation of section 27 (1) (c) and (2).
(10) If the certification of a trade union as the bargaining agent for a unit is cancelled under any provision of this Code, no other trade union may apply for certification as bargaining agent for the employees within that unit until a period of 10 months or a shorter period specified by the board has elapsed.
(11) On receipt of an application for cancellation of certification the board may cancel the certification of a bargaining agent for a bargaining unit if it is satisfied that the bargaining agent has abandoned its bargaining rights in respect of the employees in the bargaining unit.
34 Section 33 applies to the revocation of bargaining rights if a trade union is a party to a collective agreement but is not certified for the employees covered by the collective agreement.
Division 3 — Successor Rights and Obligations
35 (1) If a business or a part of it is sold, leased, transferred or otherwise disposed of, the purchaser, lessee or transferee is bound by all proceedings under this Code before the date of the disposition and the proceedings must continue as if no change had occurred.
(2) If a collective agreement is in force, it continues to bind the purchaser, lessee or transferee to the same extent as if it had been signed by the purchaser, lessee or transferee, as the case may be.
(3) If a question arises under this section, the board, on application by any person, must determine what rights, privileges and duties have been acquired or are retained.
(4) For the purposes of this section, the board may make inquiries or direct that representation votes be taken as it considers necessary or advisable.
(5) The board, having made an inquiry or directed a vote under this section, may
(a) determine whether the employees constitute one or more units appropriate for collective bargaining,
(b) determine which trade union is to be the bargaining agent for the employees in each unit,
(c) amend, to the extent it considers necessary or advisable, a certificate issued to a trade union or the description of a unit contained in a collective agreement,
(d) modify or restrict the operation or effect of a provision of a collective agreement in order to define the seniority rights under it of employees affected by the sale, lease, transfer or other disposition, and
(e) give directions the board considers necessary or advisable as to the interpretation and application of a collective agreement affecting the employees in a unit determined under this section to be appropriate for collective bargaining.
An employee who’s been fired may be entitled to more than minimum standards. Damages for wrongful dismissal may be substantial and take into account the manner of termination. Manage the risk, know your rights and obligations – a practical results oriented approach to serious issues!
Ib S. Petersen Barrister & Solicitor
1700 – 808 Nelson Street
Box 12148
Vancouver, B.C. V6Z 2H2
Canada
Tel: 604.331.8555
Fax: 604.331.8556
Direct: 604.299.8440
Cel: 604.760.3293
Email: info@ispetersen.com
