Wednesday, October 12, 2011

Variation of a certification--common and not-so common objections

In the recent decision Canadian Corps of Commissionaire v. PSAC  , Vice Chair Bruce Wilkins dismissed the employer's objections to PSAC's application to vary its multi-site certification to include alarm response drivers who worked out of the Commissionaires' headquarters in Victoria and ordere that the votes be counted.
The employer had three objections to the application to vary.  The first was an uncommon objection.  The employer argued that there was a clause in the collective agreement that provided these employees would be excluded and could not be organized.  Although the Board ruled that the provision did not mean what the employer suggested, Vice Chair Wilkins went on to comment that  the right of employees to access collective bargaining takes precedence over collective agreement provisions.   
The second objection was that the unit sought to be varied into the existing certification was not appropriate as it did not include other employees in the response centre.  In dismissing this objection the Vice Chair applied the test in Island Medical Labs B308/93.  This decision is a nice and clear application of  what is often a counfounding and elusive test.
The final objection had to do with the number of employees who cast their vote in the variation.  The employer argued that because less than 50% of employees had turned out to vote, the results would not represent the will of a majority of the employees and a new vote should be ordered.  Vice Chair Wilkins reviewed the applicable law that indicates that a low voter turnout is not enough.  There must be other factors present, such as lack of adequate notice, in order to satisfy the test for the ordering of a new vote.
The Board ordered that the ballot box be unsealed and the vote be counted. (Note:  when there is an objection to a certification or variation of a certification this is usually heard after the vote has been held)

No comments: