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Looking at Legislation

The past month has seen labour issues present in the news cycle in ways many haven’t observed in decades as BC puts forward revisions to the Labour Code and Employment Standards Act. From raising the minimum working age to 16 to protection against contract flipping the proposals promise to help restore fairness to a wide range of workers.

These are much needed changes considering that legislation surrounding labour has been left unchanged over 16 years of Liberal government. Since that time, the rise of project jobs and a “gig economy” has risen – terms that were not a part of our social lexicon when the legislation was last reviewed. Moreover, the lack of balance and fairness have given employers carte blanche to prevent workers from being able to fully exercise their constitutional right to bargain collectively within union structures.

There have been numerous inputs from labour and the general public throughout the process. The BC Federation of Labour had put forward an action plan and list of recommendations that represent the views of more than 500,000 affiliated union members across the province of British Columbia. A 3-person governmental panel of experts from labour also contributed perspectives through a 154-page report that held 29 wide-ranging recommendations. This has resulted in Bill 8, Employment Standards Amendment Act, 2019. This tabled Bill contains significant updates to the Employment Standards Act (British Columbia) (ESA). It is the first of what is anticipated to be two stages of amendments.

It is also important, as we move forward, to look at back the original intent of the Labour Code and how it was intended to protect and support workers. The legislation rose out of the 1940s, when a shifting and exploited workforce was involved in a surge of strike activity culminating in more than a third of the workforce being involved in job action in 1944. This was resolved through amendments to the War Measures Act, RSC 1927, c 206 which provided legal recognition of unions as bargaining agents if a majority of employees signed union membership cards. The employer was then required to engage in good faith collective bargaining.

This legislation guided the protection workers (or not, depending on your perception of this legislation) until the B.C. Code was enacted in 1973. The Code represented a new labour relations approach including creating the Labour Board, an expert tribunal with exclusive jurisdiction to determine many issues previously decided by the courts. The Board was given a central role in administering the Code and effecting its legislative goals through its policy making authority. The 1973 Code established a collective, problem-solving approach to labour relations through extensive use of informal processes and mediation. In looking at this early labour legislation, the heart of it seems to be rooted in creating collaborative relationships between workers and employers, with collective bargaining viewed as the most important way of achieving workers’ “voice” in the workplace and unionization as an expression of collective power in greater society.

A number of revisions to the Labour Code have occurred since (1975, 1976, 1977, 1984, 1987, 1992, 1997, 2001, and 2002). Many of these changes have revolved around the union certification through “card check” (in place in the original Code) or through secret ballot. The secret ballot (which was originally introduced to the legislation by a conservative Social Credit government), implemented a two-step certification process whereby workers who wish to join a union must first sign a union card and after a waiting period, during which the employer typically campaigns against unionization, must reiterate their vote through a secret ballot. This 10-day period of certification balloting often includes employer’s anti-union campaign activities that often include open threats to worker’s job security either in their personal position or as a workplace as well as retaliation against union organisers. In sectors where unionization is the lowest, such as retail and service, the majority of workers are women, students or youth, Indigenous, or racialized individuals working multiple jobs. This level of job insecurity and marginalization creates greater opportunity for employer manipulation in the case of secret balloting. 

This may the most debated aspect of the current proposed revisions, with the BC Greens adamantly opposed to the return of card check. The tabled legislation. This would not be precedent setting, given that 7 other other Canadian jurisdictions have a streamlined process and this has proven to increase unionization. However, the NDP government has backed off on this much-needed revision, keeping the secret ballot process (though halving it to 5 days) due to lack of support from the BC Greens and fears it would stall other much needed changes. This is particularly disheartening due to steep decreases in unionization provincially and nationally, and worker exploitation is on the rise. This two-step process is seen to mainly work in suppressing worker’s rights to join a union, which are protected by the Canadian Charter of Rights and Freedoms.

BC Federation of Labour promises this is not the end of the public discussion on the issue of card check vs. the secret ballot.

“During that five days we are concerned that imbalance of power can still end up with coercion and intimidation that affects their rights. So we’ll be watching that closely.”

The revisions to legislation include a mandatory review of labour legislation every three years to ensure another 16 years does not go by without an opportunity to provide enhanced fairness for BC workers. It will also provide opportunity to continue exploring more and new ways to provide workers power within current structures (is there more we can do outside of collective bargaining? is that truly the apex of our ultimate power?)

What is also important to consider is the strength and accountability of the Code and Employment Standards Act, as implementation is as equally important as the legislation itself. Due to the fact that workers continue to labour under a capitalist system and government that shifts to the pendulum swing of our provincial governments, no matter what reforms are made to legislation, the benefit will always go to those that hold the capital rather than those that create it. Upholding these revisions will require an enhanced role of the Labour Board in ensuring employers meet the new standards, particularly surrounding the changes in the certification process.

These changes come forward at a time when workers in BC face low-wages, precarious labour, high cost of living province, with severe rates of poverty and economic inequality. In the face of this, what will these tabled recommendations look like on the ground? How will they effect BC workers in all aspects of their lives? Perhaps, most importantly, how will it allow workers to the make the larger societal changes necessary for a more equitable society (as this is the heart of labour organising). This is what we, as workers, should be watching in the coming months as this legislation defines our relationship to our labour.

Students, as member of the general public of BC, have the right to have their voices heard by the provincial government as these conversations continue, as well as in workplaces. These changes around union certification provide new opportunities for workers to join or start unions in your workplace. Contact local Labour Councils (West Kootenays & East Kootenays) and get to know your revised labour code to know how to protect yourselves. Students and the student movement have long stood in solidarity with fellow workers in recognition of shared exploitation, lived experiences, and desire for more equitable societies – reach out and find out how you can take part.