Board required to consider secret ballot vote amendments

Following employer's acquisition of other company, union brought application for review of bargaining unit pursuant to s. 18 of Canada Labour Code. Union sought to add 20 employees from newly acquired company whose job descriptions were akin to those found in description of bargaining unit. Union's application was granted by Canada Industrial Relations Board. Board noted its authority under s. 18 of Code to review existing bargaining unit and add new or previously excluded employees. Board did not address amendments to certification process under Division III of Code which came into effect in June 2015 as result of Employees' Voting Rights Act and introduced requirement for secret ballot representation vote. Employer brought application for judicial review of board's decision. Application granted. Board's decision set aside and union's application remitted to board for redetermination. Board directed to determine extent, if any, to which amendments made to Division III of Code affected union's application, and to determine whether union had demonstrated double majority support for proposed addition to bargaining unit. Board erred in continuing to apply interpretation of s. 18 of Code that was displaced by secret ballot vote amendments enacted as part of Employees' Voting Rights Act without providing any explanation as to how it reached its conclusion. Board did not explain why secret ballot requirement introduced into Division III of Code should not be read into s. 18 of Code.
Rogers Communications Canada Inc. v. Maintenance and Service Employees' Association (2017), 2017 CarswellNat 2788, 2017 FCA 127, Eleanor R. Dawson J.A., Yves de Montigny J.A., and J. Woods J.A. (F.C.A.).