In what will come as a relief to unionized employers in British Columbia, the BC Labour Relations Board (the “Board”) has issued its reconsideration decision in BC Rapid Transit Company Ltd. and Canadian Union of Public Employees, Local 7000, 2022 BCLRB 84, confirming that section 54 of the BC Labour Relations Code (the “Code”) did not apply to the employer’s introduction of a mandatory vaccination policy. The decision involves an important reaffirmation of the traditional principles applied by the Board underpinning the application of section 54 of the Code, which requires employers to provide unions with 60 days’ notice of certain changes which impact the terms, conditions or security of employment of a significant number of employees in the bargaining unit. These principles had been thrown into doubt by the Board’s original decision in this case.
In November 2021, the Board decided in BC Rapid Transit Company Ltd. and Canadian Union of Public Employees, Local 7000, 2021 BCLRB 185 (the “Original Decision”) that the employer had breached section 54(1)(a) of the Code because it failed to give its unionized employees 60 days’ notice before introducing a mandatory vaccination policy. This determination appeared to be a marked departure from the existing jurisprudence establishing that section 54 generally did not apply to an employer’s introduction of new policies that might only have employment consequences if employees chose not to comply.
In the Original Decision, the Board decided that a mandatory vaccination policy was distinct from the types of policies to which section 54 had historically been found not to apply to, because it was “not directed towards individual behaviour assessed against a measure of expected performance” (para. 65). The outcome of the Original Decision left employers concerned that the Board was expanding the scope of section 54 and imposing an obligation on employers to give the union 60 days’ notice whenever it intended to introduce a policy that could only affect security of employment if employees chose not to comply. In practical terms, the Original Decision seemingly indicated that section 54 would apply to the introduction of almost all workplace policies.
The Board’s Reconsideration of the Original Decision
The Employer sought reconsideration of the Original Decision, and on August 3, 2022, the Board released its decision. The reconsideration decision quashed the Original Decision and dismissed the Union’s application alleging breach of section 54. In the reconsideration decision, the Board affirmed that a mandatory vaccination policy is indistinguishable from the other types of policies to which section 54 has historically not been found to apply (para. 44). This decision is good news for employers, who no longer have to worry that they will invariably need to give unionized employees 60 days’ notice whenever they introduce a new policy.
For more information, please contact David Woolias.