Nova Scotia construction workers can no longer file applications for union certification on weekends or statutory holidays. A new regulation under the provincial Trade Union Act responds to an unique aspect of the construction sector’s dealings with the Nova Scotia Labour Board (NSLB). However, labour law specialists argue that quirky rules continue to disenfranchise some construction workers.
Prospective bargaining units are still subject to the so-called snapshot rule, which applies only in the construction industry. This conveys union certification without need for a vote if, on the day the application is filed, more than 50 per cent of the on-site workforce agrees. Construction workers are simply not counted if they are absent on the day an application is filed.
For all other sectors, the NSLB includes employees who are not working due to a scheduled day off, vacation, parental leave or long-term disability for a period of less than two years as part of the representative workforce. Supporters would have to number more than 50 per cent of this entire group to gain certification on the day the application is filed.
The new regulation decrees that construction workers must file applications during the regular workweek so that smaller weekend or holiday shifts cannot trigger automatic certification.
“This change is about striking the right balance and increasing the likelihood that the majority of the workforce is represented,” Derek Mombourquette, Nova Scotia’s Minister of Energy and Mines, said as the regulation went into force in late April.
Critics suggest it hasn’t gone far enough.
“The government’s rationale for this regulatory change is that ‘employees have a right to a fair workplace where they can have their voices heard’,” observes Rick Dunlop, a partner with Stewart McKelvey Lawyers in Halifax. “Therefore, it is difficult to understand why employees who take a day off due to illness, disability or vacation on a date that a union files an application that is not captured by this regulatory change, are also not entitled to a fair workplace where they can have their voices heard.”