Publications

Information Circulars

No. 10-10

The following is one in a series of information circulars prepared by the administration staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.

---

APPLICATION FOR REVOCATION

Under the Canada Labour Code (Part I - Industrial Relations) (the Code), employees have the right to join together and choose a union that will represent them and negotiate with their employer the determination of their wages and other terms and conditions of employment. By the same token, if a majority of these employees no longer wish to be represented by a union, they can apply to have the union's rights annulled. The process is called revocation, which is also referred to as decertification or cancellation of bargaining rights.

Any person who claims to represent a majority of the employees in a bargaining unit can apply to the Canada Industrial Relations Board (the Board), within specified timeframes, for a revocation order. If the application is successful, the collective bargaining relationship between the union and the employer will be terminated and the employees will no longer be represented by a union.

Who Can Apply

You can apply for revocation if you are represented by a union that is recognized as the bargaining agent to deal with your employer. You must be covered by the "scope of the bargaining unit" – that is, you occupy a position that is included in the bargaining unit and not "excluded" from that unit. If there is more than one bargaining unit or more than one union in your work place, you are only permitted to apply for the revocation of the bargaining rights of your own unit. You can not file or participate in an application for revocation if you hold a managerial position.

When to Apply

The Code is very specific about the time period during which an application for revocation can be filed.

Where a collective agreement is in force:

• if a collective agreement is for a term of three years or less, an application for revocation can be filed during the last three months of the collective agreement (or any time after the date the collective agreement expired until a new collective agreement is signed);
• if a collective agreement is for a term greater than three years, an application for revocation can be filed during the last three months of the third year, or during the last three months of any year thereafter;
• if the employer has voluntarily recognized the union, an application for revocation can be filed at any time during the first year of the term of a collective agreement. After the first year, the same timing rules as set out above apply;

Where no collective agreement is in force:

• an application for revocation can be filed if it has been one year since the union was certified and no collective agreement has been entered into. However, in order to grant the revocation, the Board must be satisfied that the bargaining agent failed to make reasonable efforts to enter into a collective agreement in relation to the bargaining unit.

Where there is a legal strike or lockout:

• an application for revocation cannot be filed during a legal strike or lockout, except in very limited circumstances with the consent of the Board.

Majority Support

If you are applying to have your union's bargaining rights revoked, you must represent a majority of the employees included in the bargaining unit. If not, the application will be rejected.

Proof Required

The Code requires that the applicant in a revocation show evidence that a majority of the employees in the bargaining unit no longer wish to have the union represent them. This is most often done by filing individual employee statements or petitions. The signatures in support of a revocation application must be dated within six months of the date of the filing of the application. If you use a petition form, the top of each page must clearly indicate the reason for the petition (i.e., you want to have the union's bargaining rights revoked), and the name of the union that is affected by the revocation application. A petition should include at the very least the following elements:

• the signature of each petitioner;
• the name of the petitioner printed directly beside the signature;
• the date on which the petitioner signed the petition (within six months of the date of the filing of the application);
• a statement authorizing the applicant, by name, to act on behalf of the petitioner.

In determining an application for revocation of bargaining rights, the Board may look at whether there was any employer involvement that would raise questions as to the voluntariness of the application. If there is the appearance of overt or tacit support or interference by the employer, the Board could invalidate the claimed support and dismiss the application for revocation. For example, if it is proven that management offered a reward or benefit for starting or continuing the revocation application, or if it is found that management threatened an employee for not supporting the application, the Board will dismiss the application. It is also prudent not to collect names on petitions or other evidence of this type on company time or at the work site.

Confidentiality of Employee Wishes

In accordance with section 35 of the Canada Industrial Relations Board Regulations, 2001, information concerning an employee's wish to be represented by or not to be represented by a trade union is considered confidential and is not made known to the union, the employer, or the public. As such, the petition or the employee statements in support of a revocation application are not accessible to the other parties.

Where to File

An application for revocation may be filed at any of the Board's regional offices. The application for revocation form is available in PDF format and MS-Word format.

If you hand deliver, fax or send the application by regular mail, the date of filing is the date that the application is received at the Board's office. If you send the application by registered mail, the date of filing is the date you mailed the application to the Board.

The Application Process

Initially, the Board will send a copy of the application to the union and to the employer. In order to protect the confidentiality of employee wishes, the names of the employees supporting the application are not included; only the applicant's name appears on the application.

The employer is always instructed to post the application in the workplace. The Board will also ask the employer to provide it with a list of employees in the bargaining unit prepared as of the date of the application to allow the Board to determine whether a majority of the affected employees support the application. The union is requested to file submissions explaining its position in response to the application.

The Board appoints an investigating officer to gather factual background information pertaining to the application and to examine the employee support as well as any other submissions filed. The investigating officer contacts the parties to discuss any matter that may arise during the investigation and then prepares a report for the Board. A copy of the report is transmitted to the applicant, the union and the employer. The investigating officer also submits a separate confidential report to the Board setting out only employee wishes and a calculation of employee support for the application.

Representation Vote

If the Board's investigation confirms that a majority of the employees included in the bargaining unit have supported an application for revocation, the Board usually orders a "representation vote." This means that all employees in the bargaining unit have the opportunity to vote and determine whether or not the union will continue to represent them. The Board will appoint a returning officer to conduct the vote; normally, the returning officer is the investigating officer assigned to the case.

In limited instances, the Board may issue a revocation order without conducting a representation vote. This would occur when the union confirms in writing that it does not oppose the application for revocation. Ordinarily, unless the investigating officer uncovers evidence that an application for revocation is not supported by a majority of employees, a representation vote will be ordered by the Board.

The representation vote is conducted by secret ballot, by ballot box in the work place. Occasionally, if the employer's operation is geographically spread out, the vote may be conducted by mail or by other electronic means, using telephone or Internet technology. Regardless of the voting method used, the Board ensures the integrity of the voting process and the secrecy of every employee's ballot.

After the Representation Vote

Once the results of the vote are counted, the Board will determine whether or not the application for revocation succeeds. Where the Board revokes the bargaining rights of a union, the collective agreement is terminated. If the Board dismisses an application for revocation, no new application may be made for a period of six months. The Board generally will issue its decision to the parties in writing within a week of the vote.