For employers in Ontario, understanding the union certification process is crucial, particularly in light of recent legislative changes that affect how workers form unions. While union organizing drives have long been governed by procedures designed to balance employee choice with labour stability, the methods by which a union can become certified have evolved significantly in recent years. One of the most consequential changes has been the move from secret ballot votes to card-based certification in certain sectors.

This blog examines the distinctions between secret ballot and card-based certification, the legislative history that has shaped the current law, and what employers need to know to navigate union organizing drives in compliance with the Ontario Labour Relations Act (OLRA). With union activity on the rise in several sectors, especially in the wake of pandemic-era labour concerns, Ontario employers must be well-versed in the rules that apply to certification and the legal boundaries of their response.

The Union Certification Process in Ontario

Union certification refers to the process by which a trade union becomes the exclusive bargaining agent for a group of employees. Under the OLRA, a union must demonstrate sufficient employee support to be certified to represent a proposed bargaining unit. Certification allows the union to negotiate a collective agreement with the employer on behalf of the employees.

Historically, Ontario has utilized both secret ballot and card-based certification systems, depending on the prevailing legislation. In a secret ballot vote system, employees cast confidential votes to determine whether they want union representation. In contrast, a card-based system allows certification if the union collects signed membership cards from a required percentage of employees, eliminating the need for a vote.

Card-Based Certification & Changes

In 2022, the Ontario government passed Bill 88, the Working for Workers Act, 2022, which reintroduced card-based certification for specific sectors, including the construction industry, the home care and community services industry, and the building services sector. This change marked a departure from the prior requirement for a secret ballot vote in all union applications, except those in construction.

Under the amended OLRA, unions in these designated sectors can now obtain automatic certification if they submit membership cards signed by at least 55% of employees in the proposed bargaining unit. If the union obtains cards from 40% to 54% of employees, a secret ballot vote is still required. This hybrid approach aims to streamline the certification process in sectors that often feature transient or precarious work arrangements.

For employers outside these specified sectors, however, the traditional secret ballot vote remains the primary method of certification.

Secret Ballot Votes: Core Principles and Procedures

When a union applies for certification and does not meet the 55% card threshold (or falls outside of the card-based sectors), the OLRA mandates a secret ballot vote to confirm employee support. The Labour Relations Board (OLRB) administers the vote, which typically occurs within five business days of the union’s application.

The vote is confidential, meaning that neither the union nor the employer knows how individual employees voted. This system is intended to protect employees from coercion or undue influence during the unionization process.

Employers are entitled to participate in the proceedings, raise objections to the proposed bargaining unit, and receive notice of the vote. However, they must tread carefully: any attempt to interfere with employee decision-making may constitute an unfair labour practice and could result in the OLRB certifying the union without a vote, or even declaring the vote invalid.

Comparing the Two Models: Rights and Risks for Employers

Card-based and secret ballot systems each present distinct considerations for employers.

Card-Based Certification

Under card-based certification, the union may approach employees individually to sign cards, often without the employer’s knowledge until the application is filed. This can catch employers off guard, especially in workplaces without an established union presence. The lack of a formal vote means there is little opportunity for employers to communicate their perspective before certification occurs. As a result, employee education about unionization must be proactive and ongoing, rather than reactive.

Secret Ballot Vote System

In contrast, the secret ballot vote system provides a short window of time during which the employer may legally communicate its position on unionization, provided it does so without threats, coercion, or promises of reward. The voting process also allows employees to make a private choice, free from peer pressure or targeted persuasion.

Each system is designed to address different types of risks. Card-based certification is intended to reduce delays and prevent employer interference. On the other hand, secret ballot voting seeks to ensure that union certification reflects the true and voluntary will of the majority of employees.

What Constitutes an Unfair Labour Practice?

Regardless of which certification process applies, employers must be cautious to avoid committing an unfair labour practice. The OLRA prohibits employers from intimidating or coercing employees regarding their union activities. Common examples of prohibited conduct include:

• Threatening to fire or discipline employees for supporting a union;
• Offering promotions, raises, or other inducements to discourage union support;
• Spying on employees’ union meetings or discussions; or
• Attempting to question employees about their union membership or preferences.

Employers are permitted to communicate factual information about unionization, express opinions (so long as they are not coercive or misleading), and respond to union claims. However, these communications must be carefully crafted to remain within legal limits.

If the OLRB determines that an employer has committed an unfair labour practice that undermines the integrity of the certification process, it may automatically certify the union, without a vote, even in cases where card support falls below 55%. Employers that engage in such conduct also risk reputational damage, strained employee relations, and future difficulties during collective bargaining.

Preparing for a Union Application: Best Practices for Employers

Employers concerned about the risk of unionization should take a proactive approach to workplace relations. This includes:

• Maintaining competitive compensation and benefits;
• Offering channels for employee feedback and addressing concerns promptly;
• Training managers on legal rights and restrictions during union campaigns; and
• Conducting regular audits of employee morale and workplace policies.

Employers in card-based certification sectors face unique challenges due to the possibility of being certified without ever knowing which employees support the union. As such, prevention is key. If a certification application is filed, employers should immediately seek legal advice to assess their rights, respond to the application, and ensure that all communications and conduct comply with the OLRA.

Vigilance and Compliance Are Essential

The union certification process in Ontario is shaped by evolving laws that reflect both political priorities and labour market realities. For employers, understanding whether the secret ballot or card-based model applies to their workplace is not merely a legal formality—it is a crucial aspect of managing risk and maintaining positive employee relations.

Card-based certification can result in a union being certified before an employer is even aware of the organizing activity. In contrast, secret ballot votes provide a brief opportunity for lawful engagement. In either case, employers must act within strict legal boundaries and avoid any conduct that could be deemed an unfair labour practice.

Staying informed, seeking legal counsel early, and fostering a healthy workplace culture are the most effective ways for employers to navigate the certification process and minimize disruption.

Contact Grosman Gale Fletcher Hopkins LLP for Robust Labour Law Support in Toronto

Union certification drives can move quickly and carry serious legal risks if mishandled. If your organization is facing a potential organizing campaign or wants to proactively understand its rights and obligations under the Ontario Labour Relations Act, experienced legal guidance is essential. At Grosman Gale Fletcher Hopkins LLP, our employment and labour lawyers advise Ontario employers on union certification processes, unfair labour practice risks, and lawful workplace communications. Contact us online or call (416) 364-9599 to book a confidential consultation.