In Canada a union must be “certified” by a Labour Relations Board to be the sole bargaining agent for a group of employees. The Board looks for two things when certifying a union to be the representative of a company’s employees:
- Is there evidence of majority support (50% plus 1 person) through signed cards or through a board ordered [ntd – and supervised?]vote; and
- Is the union a legitimate labour organization?
What is a “legitimate” labour organization? Simply it is an entity, usually a recognized union, who independently wants to represent your employees. What it is not is an entity that is controlled by or influenced by the employer. So an Employee Association unique to your company can potentially be certified as a bargaining agent provided the employer does not control that Association or have influence over it.
A company could conceivably bargain with a non-certified bargaining group. There are examples of companies facilitating the formation of employee associations to negotiate an agreement with. So what’s the difference if it is certified or not?
Firstly, any negotiated agreement with a non-certified association is non-binding. These means the employer can opt out of it unilaterally at anytime. Similarly, the employer is not legally obliged to negotiate so can choose to extend the agreement without having to re-negotiate.
As well, all collective agreements with a certified bargaining agent assume a dispute resolution system where the union can take a matter it disagrees with to a third party arbitrator for resolution. This could conceivably be written into any agreement with a non certified group, but is rarely seen outside of collective agreements under a Labour Relations Act. For clarity an agreement negotiated with a non certified employee association is not governed by the Labour Relations Act
This may leave you asking… “why wouldn’t an employer simply agree to have the employee association certified?”. There are two reasons why this does not typically happen. Firstly, as we said above, if an employer sponsored (or encouraged an employee association to certify, it would not fit the test of independence. A second reason that a company should not ask the association to seek certification is that the employee association, once certified then becomes vulnerable to being “”raided” and organized by an established union. This could happen during what is called the “open period” at the end of a collective agreement immediately prior to expiry date through a decertification process or during the life of the collective agreement simply by the certified Association electing to join a pre-existing union.