The Fair Workplaces, Better Jobs Act, 2017 (Bill 148), introduced on June 1, 2017, proposed adding a new section 6.1 to provisions in the Ontario Labour Relations Act, 1995 ("LRA") that address union campaigns to establish bargaining rights. Headed "Establishment of Bargaining Rights by Certification", the new section (which does not apply to the construction industry) sets out the process unions must follow to apply for, obtain and use an employee list in the context of an organizing campaign. More specifically, the new section permits a union to apply to the Ontario Labour Relations Board ("Board") for an order directing the employer to provide the union with a list of employees in a unit that the union claims to be appropriate for collective bargaining.

The union's application to the Board must include: (a) a description of the proposed bargaining unit, including the estimated number of individuals in the unit; and (b) a list of the names of the union members in the proposed bargaining, along with evidence of union membership. The copy of the application delivered to the employer does not include a list of union members or evidence of union membership.

If the employer disagrees with the union's description of the proposed bargaining unit or the estimated number of individuals in it, the employer may file a notice of disagreement with the Board within 2 days after it receives the application. The notice of disagreement must state: (a) whether the employer agrees with the description of the proposed bargaining unit; and (b) if not, why the employer believes the proposed unit is not appropriate for collective bargaining. If the employer disagrees with the union's estimate, the notice of disagreement must also include the employer's statutory declaration setting out the number of individuals in the bargaining unit described in the union's application.

If the employer does not file a notice of disagreement, and the Board determines that 20% or more of the individuals in the proposed bargaining unit "appear to be members of the union" when the application was filed, it must direct the employer to provide an employee list to the union. If the Board determines that there is less than 20% support, it must dismiss the union's application.

If the employer does file a notice of disagreement, the Board must determine whether the union's description of the bargaining unit "could be appropriate" for collective bargaining. If it could not be appropriate, the Board must dismiss the union's application. If the Board finds it could be appropriate for collective bargaining, and determines that 20% or more of the individuals in the bargaining unit "appear to be members of the union" when the application was filed, it must direct the employer to provide an employee list to the union. If the Board determines the percentage to be less than 20%, it must dismiss the application.

If the employer is directed to provide an employee list to the union, that list must include each employee's name, along with his/her phone number and personal email, if the employee has provided that contact information to the employer. The union can use the list only for the purpose of a campaign to establish bargaining rights, and must keep it confidential and not disclose it to anyone other than the appropriate union officials.

In situations where the union makes an application for certification in respect of the employer and the employees on the list, and the application is dismissed less than one year after the Board's direction to provide the list, the list must be destroyed on or before the day the application is dismissed. Otherwise, the list must be destroyed within a year of the date of the Board's direction to provide the list.

When Bill 148 was introduced in June, many employers and privacy advocates expressed concern that new section 6.1 favoured the union's right to access and use employee personal information over the individual employees' privacy interests, and did little to ensure the security and confidentiality of the list. The amended version of Bill 148 contains provisions that appear to be designed to address such concerns.

Under Bill 148, as amended, if the Board directs the employer to provide an employee list to the union, the employer must "ensure that all reasonable steps are taken to protect the security and confidentiality of the list, including protecting its security and confidentiality during its creation, compilation, storage, handling, transportation, transfer and transmission." Likewise, the union must ensure that "all reasonable steps are taken to protect the security and confidentiality of the list and to prevent unauthorized access to the list."

Bill 148, as amended, was ordered for Second Reading on September 11th and debated for the following two days. We expect that it will pass Second and Third Reading and receive Royal Assent over the next few weeks, particularly since many of its amendments to the Employment Standards Act, 2000 are intended to come into effect by January 1, 2018. Note, however, that the proposed changes to the LRA, if enacted, will not come into effect until 6 months after The Fair Workplaces, Better Jobs Act, 2017 comes into force.

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