In the summer of 2014, the staff at Credit Valley Oral Surgery voted in favour of unionization, becoming the first ever dental practice to become unionized and sending chills down the spines of dentists across Ontario.
Since then, there has been no reported case involving the unionization of staff at dental practices. It remains to be seen if unionization in the dental industry will be a growing trend or a passing fad.
Regardless, the buzz and the fear surrounding the topic of unionization remains, so in this blog I will attempt to answer the question: “What would unionization mean for me?“
What is a Union?
A union is the vehicle for collective bargaining between the union (on behalf of employees) and the employer. Unions are regulated by federal and provincial legislation. In Ontario, the relevant legislation is the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “LRA“). Members of a workplace may become part of an already existing union – there are many already existing and established unions in Canada and Ontario that a workplace can join; or they may form their own union by meeting certain standards.
Why Do Employees Unionize?
Normally, unions are formed by unsatisfied employees who feel powerless to bargain with their employer. Some of the reasons staff might feel unsatisfied or powerless include unreasonable pay and benefits, lack of management or unreasonable management and inadequate communication between employer and employees.
Theoretically speaking this means that if you, the dentist employer, treat your staff right, provide them with what they are legally entitled to and employ the right management style, there will be no incentive for your staff to unionize. Unfortunately, in practice this may not always be the cure to unionization, especially where it is too-little and too-late.
How Is a Union Created?
A unionized workplace may be created when 40% of workers in a particular workplace sign membership cards to join a trade union. Such action leads to the union applying to the Ontario Labour Relations Board (commonly called the “OLRB“) to hold an anonymous vote of the employees. If the majority of the workers who cast a ballot voted for unionization, the union becomes certified by the OLRB and sends notice to the employer of its desire to bargain.
In the case of Listrom Hodgson Kienie Ho Barakat Leung Dentistry Professional Corp. v. UFCW, Local 175, over 50% of the staff voted in favour of unionizing. There, the unit of employees had been described as: “all employees of Listrom Hogdson Kienie Ho Barakat Leung Dentistry Professional Corporation operating as Credit Valley Oral Surgery located in the City of Mississauga, City of Milton, City of Oakville and the City of Burlington, save and except supervisors and persons above the ranks of supervisor, Clinical Coordinator, Administrative Coordinator, General Manager, Controller/finance”.
What Role Will You Play in the Unionization Process?
Before and During Certification
You, as the employer, may express your opinion about unionization but you may not interfere with the unionization process. Threatening employees with the loss of their job if the union is successful, promising them higher wages or better benefits if the union is unsuccessful or any other attempts at unduly influencing the unionization process is considered “interference”. Where employer interference is suspected, the OLRB may order another vote.
The LRA also prohibits employers from supporting a union (section 15, LRA) or being involved in the union (section 70, LRA). This is because involvement in the union by the employer could be tantamount to gaining control over the bargaining process – essentially it is a conflict of interest which is not permitted.
You will also be required to cooperate in the unionization process by posting copies of the Notice to Employees of Application for Certification and the copy of the application in conspicuous places around the workplace. You will also be required to do follow up postings of voter eligibility, vote details and OLRB meetings and hearings. This ensures all employees are aware of the certification process and allows them to participate in the proceedings, if they wish.
If you believe that the overwhelming majority of your employees are for union representation, you have the option of voluntarily recognizing the union, which means that you are foregoing the vote for certification held by the OLRB (Section 16, LRA). Once voluntary recognition is made, there’s no turning back.
The Negotiation Process
If the union has been certified, you are obligated to meet with the union within 15 days of their notice for a meeting, unless mutually agreed to some other time period (Section 17, LRA).
During union / employer negotiations, also known as “collective bargaining” what is being negotiated is a “collective agreement”. A collective agreement is a written contract of employment covering all the employees represented by the union which includes provisions governing the employees’ terms and conditions of employment as well as the duties, rights and privileges of the union, the employer and the employees.
Both you and the union must bargain “in good faith”. This means being forthcoming, honest and making a bona fide effort to negotiate the collective agreement. Some issues that may be seen as “bad faith” bargaining include:
- refusing to meet with the union within 15 days of getting the notice;
- often missing procedural steps or scheduled meetings or being unprepared for same;
- being dishonest;
- refusing to provide information;
- making proposals which are illegal;
- attempting to negotiate directly with employees;
Failure to negotiate in good faith could result in an application with the OLRB, and if the LRB determines that the negotiations have not been undertaken in good faith, it can make whatever orders it deems necessary to ensure good faith negotiations.
In the case where you and the union legitimately cannot agree on the terms of a collective agreement, either party can ask the Minister to appoint a mediator (Section 19, LRA) a conciliation officer (Section 18, LRA) or a conciliation board (Section 21, LRA) to help in reaching an agreement.
The employees may legally strike and you may legally lock them out only after the conciliation provisions of the LRA have been exhausted. Additionally, in order for a strike to be legal more than 50% of the employees must have voted “yes” in a strike vote. A strike or a lock-out normally ends when a collective agreement has been reached. Illegal strikes or lockouts can be remedied by an application to the OLRB.
In the event that a collective agreement is still not attained, either party can apply to the OLRB for a direction that the agreement be settled by arbitration (which is a form of negotiation that ends in a binding agreement entered by the arbitrator).
After a Collective Agreement Has Been Reached
Once a collective agreement has been reached, the LRA imposes certain prohibitions on an employer’s conduct. The following actions may be considered unfair labour practices:
- trying to make it a condition of employment that a person not join the union;
- changing the terms of employment without the union’s approval;
- using intimidation or coercion to compel an employee to stop exercising any of their rights under the LRA or penalizing them for exercising their rights;
In some instances, unfair labour practices may lead to criminal or quasi-criminal proceedings against the employer.
Effects on the Sale of Your Dental Practice
According to Section 69(2) of the LRA any successor employer (i.e. anyone you sell your dental practice to) will be bound by the collective agreement you have reached with the union.
Some sneaky employers have tried surreptitiously selling their businesses prior to certification of a union in order to thwart any effort on the part of the employees to become unionized. However, successor employers are also bound to negotiate a collective agreement once given notice of certification.
Ownership of More than One Dental Practice
If you own more than one dental practice and each practice is operating under a different corporate name, you cannot shield each practice’s employees form being exposed to unionization efforts or becoming unionized. Under Section 1(4) and (5) of the LRA an application can be made to the OLRB to classify another person or entity a “related employer”. This allows related or associated employers or corporations to be treated as one employer for the purposes of the LRA.
Please note that the information provided herein is not legal advice and is provided for informational and educational purposes only. If you need legal advice, contact us today – we are your legal dental team.