Every three years, Ontario’s construction industry is thrown into a frenzy as construction employees apply to decertify their union, and unions try to raid one another’s bargaining rights. Stuck in the middle between theses various parties are construction industry employers, who are often pulled into these legal proceedings before the Ontario Labour Relations Board (the “Board”), sometimes with little knowledge of what’s at stake.   

The Ontario Labour Relations Act, 1995 (the “LRA”) regulates many collective agreements in the construction sector in Ontario and mandates that those collective agreements expire on April 30th every three years. The last two months of the three-year cycle, often referred to as the “open period,” is when these collective agreements are renegotiated, and when decertification and raid applications are permitted to be filed. The open period of the current cycle of construction industry collective agreements in Ontario begins on March 1, 2025.

During the open period employees who are union members can apply to the Board to terminate the union’s bargaining rights with their employer – to essentially decertify the union – which would result in ending the application of the collective agreement that is in place. The process to terminate the union’s bargaining rights is similar to the process that a union undertakes to certify an employer, with one main and very important difference: a union applying for certification of an employer must have at least two employees in the bargaining unit who were at work on the date that the application was filed. A termination application may be brought and won by a single employee, if that employee was the only employee who worked on the date that the termination application was filed.

The other application which may be brought during the open period is a displacement application, through which one construction union tries to displace, or “raid,” another construction union, to essentially take over the second construction union’s bargaining rights with the employer.

In each one of these applications, the affected employer must be given notice that an application is being filed. While there is no obligation on the employer to participate in the process, it is advantageous to participate since the result of the application may have a significant impact on the company. A successful termination application would result in the employer becoming non-unionized, while a successful displacement application would result in the company being bound to a different collective agreement with a different union.

To participate, the employer must file an intervention (in the case of a termination application) or a response (in the case of a displacement application) within two days after the application was delivered to the company. Once the two-day deadline expires, it is unlikely that the Board will permit the company to participate in the proceeding if an intervention or a response was not filed. It is therefore very important to respond immediately upon receiving the application.

It is imperative to remember that the decision to terminate bargaining rights or support a rival union in displacing the current union, is the decision of one or more employees. It is not the employer’s decision. In fact, an employer cannot initiate or encourage a termination or displacement application. For example, an employer must not:

  • have any significant or influential involvement in filing the application; 
  • facilitate the filing of an application by hiring employees specifically to file or support such an application;
  • assist employees financially in funding legal fees for representation in an application;
  • allow employees to use the employer’s site trailer, office or office equipment to prepare and file an application;
  • discuss the benefits of termination of bargaining rights or of one union raiding another; or
  • allow a rival union to engage with workers during working hours.

Evidence of such conduct on the company’s part may end up in the dismissal of the application.

Termination and displacement applications can involve complex legal and evidentiary issues. If your company received delivery of a termination or displacement application, we encourage you to contact your Miller Thomson professional for advice and assistance in filing an intervention or a response to ensure that your company’s rights are preserved.