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Labour Relations - Certification

Table of contents

    Certification is the formal recognition by the Canada Industrial Relations Board of a union as the bargaining agent for a defined group of employees included in a bargaining unit. 

    What is a union or a bargaining agent?

    • A union is an organization formed by employees to negotiate terms and conditions of employment with their employer. 
    • Unions can be certified by the Board to represent all or some of the employees of an employer. 
    • The Board only has jurisdiction over federally regulated employers in the private sector, not the public sector. For a complete list, please visit our page on federally regulated businesses. 
    • If a union wants to be certified to represent employees of a provincially regulated business, the application must be made to the labour board in the province where the business is located.
    • Once certified, the union becomes the bargaining agent for the group of employees. The group of employees are in the bargaining unit that is represented by the union. 
    • Employers can agree to recognize a union as the bargaining agent for a group of its employees without the union having to be certified by the Board. This is called voluntary recognition of the union. 

    What is certification, and what does it do?

    • The certification of a union as the bargaining agent for a group of employees (bargaining unit) gives the union the exclusive right to negotiate terms and conditions of employment for that unit. 
    • Collective bargaining is the term used to describe the act of negotiation between the union and the employer. 
    • A collective agreement is the result of the collective bargaining process. It contains the terms and conditions of employment that were agreed to by the union and the employer. 
    • The certification lasts until it is terminated by the Board after a successful application for revocation by bargaining unit members. 

    When can an application for certification be made?

    • The Canada Labour Code contains the rules surrounding certification. 
    • It sets out the time periods during which applications for certification can be made. 

    When there is no collective agreement   

    • If a group of employees is not already represented by a union, an application to certify a union as the bargaining agent for the group of employees can be made at any time. 
    • If a group of employees is represented by a union but the union has not yet negotiated a first collective agreement, an application for certification can be made after 1 year has passed since the Board certified the union.
    • Where a collective agreement has expired, an application for certification can be made at any time up until a new collective agreement is entered into. 
    • NO application for certification can be filed during a legal strike or lockout without the Board’s consent. 

    When there is a collective agreement 

    • If the collective agreement has a term of 3 years or less, another union can apply to be certified to represent the bargaining unit starting three months before the expiry of the agreement up until a new collective agreement is signed.      
    • If the collective agreement has a term of more than 3 years, another union can apply to be certified to represent the bargaining unit during the three-month period before the end of the third year of the agreement, and in the three-month period at the end of every year thereafter. Once the agreement has expired, an application can be made at any time up until a new collective agreement is signed.  
    • NO application for certification can be filed during a legal strike or lockout without the Board’s consent. 

    How do I file an application for certification?

    • It is strongly recommended that you use the Application for Certification form to file your application. The form contains the information that the Board needs to make a decision, and helps you make sure that the information that you are filing is complete.
    • If you do not file all of the information that the Board needs, it will take the Board longer to process your application. 
    • In some cases, not filing all of the information that the Board needs can result in your application being dismissed without the opportunity to make any further submissions. After such a dismissal, you may have to wait 6 months before filing a new one. 
    • All documents, including applications and all supporting documents, are filed using the Board’s E-Filing Web Portal. This is the fastest and most accurate way to file documents with the Board.  
    • You do not need to send the Board a paper copy of documents that have been e-filed with the Board. If you need assistance with the E-Filing Web Portal, you can contact the Board directly using its 1-800 line or online inquiry form. The Board’s contact information can be found here.   

    What does a union need to do to be certified?

    • To be certified as the bargaining agent for a group of employees (bargaining unit), the union must:
      • file an application for certification with the Board; 
      • propose a bargaining unit appropriate for collective bargaining; and 
      • prove that a majority of the employees in the bargaining unit wish to have the union represent them as their bargaining agent in negotiations with their employer. 
    • If the union has not previously been certified by the Board, it must also file a copy of its constitution, its bylaws and charter, and the minutes from certain union meetings.

    What are the criteria that the Board uses to determine whether a bargaining unit is appropriate for collective bargaining?

    • The Board is responsible for determining whether the bargaining unit proposed by the union is appropriate for collective bargaining purposes. The Board will consider the positions of the union and the employer on the issue and then decide based on the facts of each case. 
    • The Board will look at the duties and functions of the positions proposed for inclusion by the union and at whether the employees in the proposed bargaining unit share a community of interest. It will also look at past Board decisions in similar industries and involving similarly sized employers. To learn more, please visit our page on Board decisions.
    • Employees who perform management functions or who work with confidential labour relations information are excluded from the bargaining unit.  

    What proof does the Board require to show that a majority of employees in the bargaining unit want to be represented by the union?

    • The Board will require the signed membership card of each employee who joined the union and proof that each member has paid at least five dollars towards a membership fee in the 6-month period before the application for certification was filed.
    • The Board accepts copies of membership cards; however, the originals must be kept by the union as the Board may ask to see them.

    What do I need to include in my application?

    • Unions seeking to be certified by the Board as the bargaining agent for a group of employees need to file the following information:
      • A completed application for certification. It is strongly recommended that you use the application form, which asks for all the information that the Board needs to make a decision. If there is information missing, it may take longer for the Board to make a decision.
      • A copy of the membership cards of each employee who joined the union.
      • Proof that each employee who signed a membership card paid the union five dollars or more.
      • A statement of the number of employees in the proposed bargaining unit that the union represents (this is called a Confidential Statement of Membership). 
      • An attestation by the union that the documents provided to the Board are accurate. This can be done by completing and signing the Certificate of Accuracy that is part of the application for certification.
      • If it is the first time that the union has applied to be the certified bargaining agent before the Board, it will also need to file:
        • a copy of its constitution and bylaws;
        • its charter (if it has one); and 
        • the minutes from:
          • its first meeting; 
          • the meeting where the constitution and bylaws were adopted; and 
          • the meeting where officers were elected (the President, Vice-President, Secretary and Treasurer).  

    What happens after the certification application has been filed?  

    • When the Board receives an application for certification, it sends a letter to the employer and—if the bargaining unit is already represented by a union—to the union, acknowledging receipt of the application.  
    • The letter also includes a copy of the application for certification, a Certificate of Posting, a Notice to Employees, and a schedule for the filing of documents that the parties must follow.  
    • The employer must post the Notice to Employees and the application for certification in the workplace for 15 calendar days in a place that can be seen by all employees affected by the application. For more direction on how and where to post the Notice, please contact the Industrial Relations Officer assigned to the file.
    • The employer must also complete the Certificate of Posting and send it to the Board along with a current list of employees and an organizational chart within 5 calendar days of receiving the Board’s letter. For more information on the employer’s responsibilities, see the section entitled “What Does the Employer Have to Do Once an Application for Certification Has Been Filed,” below. 
    • The employer and the union that already represents the bargaining unit that the new union wants to represent, if there is one, will have 10 calendar days to respond to the application. These are called responses. The response should address the appropriateness of the bargaining unit, whether any positions should be excluded, the number of employees in the bargaining unit, and any other information that these parties think is relevant.
    • The applicant will have 5 calendar days to reply to any responses received. This is called a reply.
    • The Board tries to make decisions on applications for certification within 3 months of receiving them and only agrees to extend these timelines in exceptional cases.

    Investigation and Mediation

    • The Board will appoint an Industrial Relations Officer (IRO) to complete an investigation and oversee the conduct of the file. 
    • The IRO will contact the parties to review the information, obtain additional information, review time limits, and answer questions.  
    • The IRO may meet with the parties to resolve any disagreements they may have about the proposed bargaining unit, such as its scope and the list of employees, including whether any employees should be excluded from the unit. 
    • The IRO will contact some of the employees covered by the application to confirm the validity of the membership evidence.
    • The IRO will provide the parties with a letter setting out the IRO’s understanding of the proposed bargaining unit and any disputed positions. This is called a Letter of Understanding. 
    • Parties must provide their comments on the Letter of Understanding within 24 hours of receiving it.
    • The IRO will submit a separate Confidential Report to the Board summarizing, based on the information on file and their investigation, the membership evidence and whether the employees wish to be represented by the union. The Report also talks about whether those employees gave free and voluntary consent.
    • As the name suggests, the information in the Confidential Report is kept confidential and is reported privately to the Board. It is not disclosed to the parties. 
    • The IRO may also help the parties come to an agreement on the application. 
    • While the Board will seriously consider any agreement reached between the parties, such an agreement is not binding on the Board. The Board will make its own determination about the appropriateness of the bargaining unit for collective bargaining.

    What does the employer have to do once an application for certification has been filed?

    • Once the employer is notified by the Board of the application for certification, it may not change the terms or conditions of employment for the employees in the proposed bargaining unit, unless the Board gives its consent in writing. 
    • To prevent the employer from influencing employees’ wishes, it must conduct “business as before” while the application is before the Board. 
    • The employer has an opportunity to respond to the Board regarding the application, for example, with comments on the proposed bargaining unit or job titles or positions that must be included or excluded.  
    • The employer must ensure that the employees are aware of the application by posting the Notice to Employees along with a copy of the application for certification at the workplace. For more direction on how and where to post the Notice, please contact the Industrial Relations Officer assigned to the file.
    • Within 5 days of receiving a copy of the application for certification from the Board, the employer must do the following:
      • Complete and return the Certificate of Posting to the Board as proof that it has posted the Notice to Employees and the application for certification in the workplace. 
      • Send, to the Board only, an alphabetical and confidential list of all people affected by the application and employed by the employer. The list must be current as of the date that the application was filed and must identify managerial and supervisory staff as well as casual or part-time employees. The list must be in Excel format and include:
        • the full name of each employee;
        • their job classification or title;
        • their home address; and
        • their telephone number.
          • This information will not be disclosed to the union.
      • Send to the Board the same list as indicated above but without the employees’ addresses and telephone numbers.
      • If applicable, send a record of the weekly hours worked by any casual or part-time employees during the three-month period before the date of the application.
      • Send an organizational chart showing the relationship of the employees in the proposed bargaining unit to other employees excluded from the proposed bargaining unit.
        • This chart must be accurate as of the date of filing.
        • The chart must also show the lines of authority between management, supervisors, and subordinate employees. 
      • Send a detailed description of the nature of the employer’s business and operations.
      • Send a confirmation of the employer’s legal name in both official languages.
    • The employer may not interfere with the union by trying to persuade employees to not join the union, by intimidating them, by threatening them with disciplinary action or taking disciplinary action against them, or by discriminating against an employee who is thinking about joining the union or participating in the formation of a union. 

    Will there be a vote to determine certification?

    • If the union can show that a majority of employees support it, then the Board may grant the application and certify the union without holding a representation vote. This is especially the case when the application is not disputed.  
    • A majority means the support of more than 50 percent of employees. For example, if the proposed bargaining unit has 40 employees, the union must have the support of 50 percent of those employees (20), plus 1, for a total of 21 employees. 
    • If there is no union already in place and the applicant union can show that between 35 and 50 percent of employees support it, then the Board will order that a representation vote be held. 
    • If the Board orders a vote, it will designate a Returning Officer, usually the Industrial Relations Officer (IRO) assigned to the case, to conduct and supervise the vote. The vote is held either at the workplace location or electronically. The IRO works with the parties to determine the best way to hold a vote.   
    • After the representation vote, the Returning Officer will communicate the results to the Board. The Board will then decide the application and may: 
      • schedule a hearing;
      • grant the application and issue a certification order; or  
      • dismiss the application for lack of support. 

    When will the Board hold a hearing to decide on certification?

    • Hearings are usually not held in certification matters. In most cases, the Board can make a decision based on the documents on file without holding a hearing. This is part of the reason why written submissions should be as complete as possible. 
    • The Board has the discretion to decide whether to hold an oral hearing, even if the parties request one.  
    • If the Board decides to hold an oral hearing, the parties will be informed of the date and location in advance. If possible, the parties will be consulted regarding scheduling. 

    Is the certification process public?

    • Documents provided to the Board will be placed on the public record. 
    • Information and documents that could reveal the membership of any employee in the union are confidential and are not disclosed to the employer or the public.  
    • Other documents that are not exchanged with the parties or disclosed to the public are:
      • the alphabetical list containing employees’ home addresses and telephone numbers; and 
      • the completed Certificate of Accuracy.