Law:Public Service Labour Relations Act

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S.c. 2003, c. 22, s. 2

Assented to 2003-11-07

An Act respecting labour relations in the public service

(Enacted by section 2 of chapter 22 of the Statutes of Canada, 2003; preamble, sections 1 to 3 and Part 1, in force April 1, 2005, see SI/2005-22; Part 2, other than subparagraph 209(1)(c)(ii), paragraph 211(b) and section 231, in force April 1, 2005, see SI/2005-23; Parts 3 and 4 in force April 1, 2005, see SI/2005-24; subparagraph 209(1)(c)(ii), paragraph 211(b) and section 231 in force December 31, 2005, see Si/2005-123.)Preamble

Recognizing that

the public service labour-management regime must operate in a context where protection of the public interest is paramount;

effective labour-management relations represent a cornerstone of good human resource management and that collaborative efforts between the parties, through communication and sustained dialogue, improve the ability of the public service to serve and protect the public interest;

collective bargaining ensures the expression of diverse views for the purpose of establishing terms and conditions of employment;

the Government of Canada is committed to fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment;

the Government of Canada recognizes that public service bargaining agents represent the interests of employees in collective bargaining and participate in the resolution of workplace issues and rights disputes;

commitment from the employer and bargaining agents to mutual respect and harmonious labour-management relations is essential to a productive and effective public service;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:


Contents

Short Title

Short title

1. This Act may be cited as the Public Service Labour Relations Act.


Interpretation

Definitions

2. (1) The following definitions apply in this Act.

“adjudicator”

« arbitre de grief »

“adjudicator” means a member assigned to hear and determine a grievance referred to adjudication under subsection 209(1) or section 216 or 221 and includes, if the context permits, a board of adjudication established under paragraph 223(2)(c), a person named as an adjudicator in a collective agreement and a person otherwise selected as an adjudicator by the parties to the grievance.

“arbitral award”

« décision arbitrale »

“arbitral award” means an award made by an arbitration board in respect of a dispute.

“arbitration board”

« conseil d’arbitrage »

“arbitration board” means a board established under Division 9 of Part 1.

“bargaining agent”

« agent négociateur »

“bargaining agent” means an employee organization that is certified by the Board as the bargaining agent for the employees in a bargaining unit.

“bargaining unit”

« unité de négociation »

“bargaining unit” means a group of two or more employees that is determined by the Board to constitute a unit of employees appropriate for collective bargaining.

“Board”

« Commission »

“Board” means the Public Service Labour Relations Board established by section 12.

“Chairperson”

« président »

“Chairperson” means the Chairperson of the Board.

“collective agreement”

« convention collective »

“collective agreement” means an agreement in writing, entered into under Part 1 between the employer and a bargaining agent, containing provisions respecting terms and conditions of employment and related matters.

“core public administration”

« administration publique centrale »

“core public administration” has the same meaning as in subsection 11(1) of the pan class="XRefExFinancial Administration Act.

“council of employee organizations”

« regroupement d’organisations syndicales »

“council of employee organizations” means a council formed by two or more employee organizations.

“deputy head”

« administrateur général »

“deputy head” means a deputy head referred to in any of paragraphs (a) to (c) of the definition “deputy head” in subsection 11(1) of the Financial Administration Act.

“dispute”

« différend »

“dispute” means a dispute or difference that arises in connection with the entering into, renewal or revision of a collective agreement and in respect of which arbitration may be requested under subsection 136(1) or conciliation may be requested under subsection 161(1).

“employee”

« fonctionnaire »

“employee”, except in Part 2, means a person employed in the public service, other than

(a) a person appointed by the Governor in Council under an Act of Parliament to a statutory position described in that Act;

(b) a person locally engaged outside Canada;

(c) a person not ordinarily required to work more than one third of the normal period for persons doing similar work;

(d) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that force under terms and conditions substantially the same as those of one of its members;

(e) a person employed in the Canadian Security Intelligence Service who does not perform duties of a clerical or secretarial nature;

(f) a person employed on a casual basis;

(g) a person employed on a term basis, unless the term of employment is for a period of three months or more or the person has been so employed for a period of three months or more;

(h) a person employed by the Board;

(i) a person who occupies a managerial or confidential position; or

(j) a person who is employed under a program designated by the employer as a student employment program.

“employee organization”

« organisation syndicale »

“employee organization” means an organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purposes of Parts 1 and 2, and includes, unless the context otherwise requires, a council of employee organizations.

“employer”

� employeur »

“employer” means Her Majesty in right of Canada as represented by

(a) the Treasury Board, in the case of a department named in Schedule I to the Financial Administration Act or another portion of the federal public administration named in Schedule IV to that Act; and

(b) the separate agency, in the case of a portion of the federal public administration named in Schedule V to the Financial Administration Act.

“managerial or confidential position”

« poste de direction ou de confiance »

“managerial or confidential position” means a position declared to be a managerial or confidential position by an order made by the Board under subsection 62(1), section 63, subsection 74(1) or section 75.

“member”

« commissaire »

“member” means a member of the Board, whether full-time or part-time.

“membership dues”

« cotisations syndicales »

“membership dues”, in respect of employees represented by a bargaining agent, means the amount that the employer is required to deduct from the pay of the employees and remit to the bargaining agent under any collective agreement that is entered into between the employer and the bargaining agent.

“Minister”

« ministre »

“Minister” means the member of the Queen’s Privy Council for Canada, other than a member of the Treasury Board, designated by the Governor in Council as the Minister for the purposes of this Act.

“public service”

« fonction publique »

“public service”, except in Part 3, means the several positions in or under

(a) the departments named in Schedule I to the Financial Administration Act;

(b) the other portions of the federal public administration named in Schedule IV to that Act; and

(c) the separate agencies named in Schedule V to that Act.

“separate agency”

« organisme distinct »

“separate agency” has the same meaning as in subsection 11(1) of the Financial Administration Act.

“strike”

« grève »

“strike” includes a cessation of work or a refsal to work or to continue to work by persons employed in the public service, in combination, in concert or in accordance with a common understanding, and a slow-down of work or any other concerted activity on the part of such persons that is designed to restrict or limit output.

“Vice-Chairperson”

« vice-président »

“Vice-Chairperson” means a Vice-Chairperson of the Board.

Employment status preserved

(2) A person does not cease to be employed in the public service by reason only that the person ceases to work as a result of a strike or by reason only of the termination of the person’s employment contrary to this Act or any other Act of Parliament.

Persons who are not employees

(3) For greater certainty, a person is not an employee if

(a) the person is engaged under subsection 50(1); or

(b) the person’s compensation for the performance of the regular duties of the person’s position or office consists of fees of office or is related to the revenue of the office in which the person is employed.

Casual employment

(4) For the purposes of paragraph (f) of the definition “employee” in subsection (1), a person employed in the part of the public service to which the Public Service Commission has the exclusive right to make appointments is employed on a casual basis if the person was appointed under section 50 of the Public Service Employment Act.

References to occupants of positions

(5) Every reference to a person who occupies a position, or to the occupant of a position, includes a person who is acting in that position or who has assumed wholly or substantially the duties and responsibilities of that position, and a reference to a person’s position includes the position of a person who is acting in that position or who has assumed wholly or substantially the duties and responsibilities of that position.

2003, c. 22, ss. 2 “2”, 243.

Previous VersionDescriptive cross- references

3. If, in any provision of this Act, a reference to another provision of this Act is followed by words in parentheses that are descriptive of the subject-matter of that other provision, the words in parentheses form no part of the provision in which they occur and are deemed to have been inserted for convenience of reference only.


Part 1. Labour Relations

Interpretation

Definitions

4. (1) The following definitions apply in this Part.

“essential service”

« services essentiels »

“essential service” means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public.

“essential services agreement”

« entente sur les services essentiels »

“essential services agreement” means an agreement between the employer and the bargaining agent for a bargaining unit that identifies

(a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services;

(b) the number of those positions that are necessary for that purpose; and

(c) the specific positions that are necessary for that purpose.

“mediator”

« médiateur »

“mediator” means a person appointed as a mediator under subsection 108(1).

“National Joint Council”

« Conseil national mixte »

“National Joint Council” means the National Joint Council whose establishment was authorized by Order in Council P.C. 3676, dated May 16, 1944.

“parties”

« parties »

“parties”, in relation to collective bargaining, arbitration, conciliation or a dispute, means the employer and the bargaining agent.

“public interest commission”

« commission de l’intérêt public »

“public interest commission” means a commission established under Division 10.

When position is necessary

(2) A position that is necessary for the employer to provide essential services for the purposes of paragraph (a) of the definition “essential services agreement” in subsection (1) includes a position the occupant of which is required, at any time,

(a) to perform the duties of the position that relate to the provision of essential services; or

(b) to be available during his or her off-duty hours to report to work without delay to perform those duties if required to do so by the employer.


Division 1

Employee Freedoms

Employee freedoms

5. Every employee is free to join the employee organization of his or her choice and to participate in its lawful activities.


Division 2

Management Rights

Right of Treasury Board preserved

6. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board under paragraph 7(1)(b) of the Financial Administration Act.

Right of employer preserved

7. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board or a separate agency to determine the organization of those portions of the federal public administration for which it represents Her Majesty in right of Canada as employer or to assign duties to and to classify positions and persons employed in those portions of the federal public administration.


Division 3

Consultation Committees and Co-Development

Consultation committee

8. Each deputy head must, in consultation with the bargaining agents representing employees in the portion of the federal public administration for which he or she is deputy head, establish a consultation committee consisting of representatives of the deputy head and the bargaining agents for the purpose of exchanging information and obtaining views and advice on issues relating to the workplace that affect those employees, which issues may include, among other things,

(a) harassment in the workplace; and

(b) the disclosure of information concerning wrongdoing in the public service and the protection from reprisal of employees who disclose such information.

Meaning of “co-development of workplace improvements”

9. For the purpose of this Division, “co-development of workplace improvements” means the consultation between the parties on workplace issues and their participation in the identification of workplace problems and the development and analysis of solutions to those problems with a view to adopting mutually agreed to solutions.

Co-development of workplace improvements

10. The employer and a bargaining agent, or a deputy head and a bargaining agent, may engage in co-development of workplace improvements.

National Joint Council

11. Co-development of workplace improvements by the employer and a bargaining agent may take place under the auspices of the National Joint Council or any other body they may agree on.


Division 4

Public Service Labour Relations Board

Establishment and Composition

Board established

12. A Board is established, to be called the Public Service Labour Relations Board, consisting of a Chairperson, up to three Vice-Chairpersons and any other members that the Governor in Council may appoint.


Mandate

Mandate

13. The Board’s mandate is to provide adjudication services, mediation services and compensation analysis and research services in accordance with this Act.

Adjudication services

14. The adjudication services to be provided by the Board consist of the hearing of applications and complaints made under this Part, the referral of grievances to adjudication in accordance with Part 2 and the hearing of matters brought before the Board under Part 3.

Mediation services

15. The mediation services to be provided by the Board consist of

(a) assisting parties in the negotiation of collective agreements and their renewal;

(b) assisting parties in the management of the relations resulting from the implementation of collective agreements;

(c) mediating in relation to grievances; and

(d) assisting the Chairperson in discharging his or her responsibilities under this Act.

Compensation analysis and research services

16. (1) The compensation analysis and research services to be provided by the Board include conducting compensation surveys, compiling information relating to compensation, analyzing that information and making it, and the analysis, available to the parties and to the public, and conducting any research relating to compensation that the Chairperson may direct.

Restriction on disclosure

(2) In making information or analysis available under subsection (1), no member and no person employed by or acting under the direction of the Board shall disclose or knowingly cause to be disclosed, by any means, any information that makes it possible to relate the information or analysis to any identifiable individual person, business or organization.

Exception

(3) Subsection (2) does not apply if the person, business or organization concerned has consented in writing to the information being disclosed.

National Joint Council

17. The Board’s mandate includes the provision of facilities and administrative support to the National Joint Council.


Appointment of Members

Qualifications

18. (1) To be eligible to hold office as a member, a person must

(a) be a Canadian citizen within the meaning of the Citizenship Act or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act;

(b) not hold any other office or employment under the employer;

(c) not be a member of or hold an office or employment under an employee organization certified as a bargaining agent;

(d) not carry on any activity inconsistent with the person’s functions; and

(e) have knowledge of or experience in labour relations.

Exception

(2) Despite paragraph (1)(b), a person is not ineligible to hold office as a member by reason only of holding office as a member of any board that may be constituted by the Commissioner in Council of the Northwest Territories or the Legislature of Yukon or the Legislature for Nunavut with powers and functions similar to those of the Board.

2003, c. 22, ss. 2 “18”, 273.

Previous VersionAppointments of other members from list

19. (1) Every member, other than the Chairperson or a Vice-Chairperson, must be appointed from among eligible persons whose names are included on a list prepared by the Chairperson after consultation with the employer and the bargaining agents.

Contents

(2) The Chairperson must set out on the list

(a) the names of all eligible persons recommended by the employer;

(b) the names of all eligible persons recommended by the bargaining agents; and

(c) the names of any other eligible persons whom the Chairperson considers suitable for appointment.

Equal numbers

(3) The appointment of members, other than the Chairperson and the Vice-Chairpersons, is to be made so as to ensure that, to the extent possible, an equal number are appointed from among persons recommended by the employer and from among persons recommended by the bargaining agents.

Non-representative Board

(4) Despite being recommended by the employer or the bargaining agents, a member does not represent either the employer or the employees and must act impartially in respect of all powers and functions under this Act.

Full or part-time members

20. The Chairperson and the Vice-Chairpersons are each full-time members and the other members may be appointed as full-time or part-time members.

Residence of full-time members

21. The full-time members must reside in the National Capital Region described in the schedule to the National Capital Act or within any distance of it that the Governor in Council may determine.

Tenure

22. (1) Each member is to be appointed to hold office during good behaviour and may be removed by the Governor in Council for cause.

Term of office

(2) A member may be appointed for a term of office that is not more than five years.

Reappointment

(3) A member is eligible for reappointment on the expiry of any term of office.

Completion of duties

(4) A person who ceases to be a member for any reason other than removal may, at the request of the Chairperson, within eight weeks after ceasing to be a member, carry out and complete any functions or responsibilities that the person would otherwise have had in connection with any matter that came before the Board while the person was still a member and in respect of which there was any proceeding in which the person participated as a member. For that purpose, the person is deemed to be a part-time member.


Remuneration

Remuneration

23. Every member and former member referred to in subsection 22(4)

(a) is to be paid the remuneration that may be determined by the Governor in Council; and

(b) is entitled to be paid reasonable travel and other expenses incurred by them in the course of their duties under this Act while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members, their ordinary place of residence.


Application of Acts

Application of Public Service Superannuation Act

24. A full-time member is deemed to be employed in the public service for the purposes of the Public Service Superannuation Act.

Application of other Acts

25. Members are deemed to be employed in the federal public administration for the purposes of the Government Employees Compensation Act and regulations made under section 9 of the Aeronautics Act.


Head Office and Meetings

Head office

26. The head office of the Board is to be in the National Capital Region described in the schedule to the National Capital Act.

Time and place of meetings

27. (1) Meetings of the Board may be held at any date, time and place that the Chairperson considers appropriate for the proper conduct of the Board’s business.

Off-site participation

(2) A meeting of the Board may be held by any means of telecommunication that permits all persons participating in the meeting to communicate adequately with each other during the meeting. A person participating by such means is deemed to be present at the meeting.

Quorum

28. The Chairperson, one Vice-Chairperson and a majority of the other full-time members of the Board constitute a quorum at a meeting of the Board.

Attendance of part-time members at meetings

29. A part-time member is not entitled to attend a meeting of the Board, but may attend at the invitation of the Chairperson.

Decision of majority

30. A decision of a majority of the Board’s members who are present at a Board meeting is a decision of the Board.


Panels

Composition

31. Proceedings brought before the Board under this Part are to be heard and determined by a panel of not less than three members, at least one of whom is the Chairperson or a Vice-Chairperson, or, if the Chairperson considers it appropriate in the circumstances, by a panel consisting of a single member.

Powers, rights and privileges

32. A panel has all the powers, rights and privileges of the Board with respect to any matter assigned to the panel under this Part.

Chairperson of the panel

33. The chairperson of a panel that consists of three or more members is the Chairperson or, if the Chairperson is not a member of the panel, a Vice-Chairperson designated by the Chairperson.

Death or incapacity of member

34. (1) In the event of the death or incapacity of a member of a panel consisting of three or more members, other than the death or incapacity of the chairperson, the chairperson may determine any matter that was before the panel and the chairperson’s decision is deemed to be the decision of the panel.

Death or incapacity of chairperson

(2) In the event of the death or incapacity of the chairperson of a panel, or of the member when the panel consists of a single member, the Chairperson must establish a new panel to hear and determine the matter on any terms and conditions that the Chairperson may specify for the protection and preservation of the rights and interests of the parties.

Decision of panel

35. (1) A decision made by a majority of the members of a panel is the decision of the panel or, if no decision is supported by the majority of the members of the panel, the decision of the chairperson of the panel is the decision of the panel.

Decision of Board

(2) A decision of a panel is a decision of the Board.


Powers and Functions of the Board

Powers and functions of the Board

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

Provision of assistance to parties

37. The Board, or any member or employee of the Board designated by the Board, may, if the parties agree, assist the parties in resolving any issue in dispute at any stage of a proceeding by any means that the Board considers appropriate, without prejudice to its power to determine issues that have not been settled.

Delegation by Board

38. The Board may authorize the Chairperson to exercise any of its powers or perform any of its functions, other than the power to make regulations.

Authority to make regulations

39. The Board may make regulations concerning

(a) the certification of bargaining agents for bargaining units;

(b) the determination of units appropriate for collective bargaining;

(c) the time and manner of making applications under section 59, the provision of copies of those applications and the filing of objections in respect of any positions referred to in those applications;

(d) the authority vested in a council of employee organizations that is to be considered the appropriate authority within the meaning of paragraph 64(1)(c);

(e) the manner of making applications under sections 71 and 77, the time and manner of providing copies of those applications and the time and manner of the filing of objections in respect of any positions referred to in applications under section 71;

(f) the rights, privileges and duties that are acquired or retained by an employee organization in respect of a bargaining unit or any employee included in a bargaining unit when there is a merger, an amalgamation or a transfer of jurisdiction between two or more employee organizations;

(g) the revocation of certification of a bargaining agent, including the rights and privileges that have accrued to and are retained by any employee despite the revocation;

(h) the manner of giving notices referred to in subsection 103(1), and the form of those notices, and the manner of making applications referred to in subsection 104(1), and the form of those applications;

(i) the procedure for hearings;

(j) the specification of the times within which notices, other than those referred to in subsections 130(1) and (2), and other documents are to be sent or given under this Part, the persons to whom they are to be sent or given and when they are deemed to have been sent, given or received;

(k) the determination of the form in which, and the time as of which, the following evidence is to be presented to the Board on an application for certification or revocation of certification of a bargaining agent:

(i) evidence as to membership of employees in an employee organization,

(ii) evidence of objection by employees to certification of an employee organization, and

(iii) evidence of signification by employees that they no longer wish to be represented by an employee organization;

(l) the circumstances in which evidence referred to in paragraph (k) may be received by it as evidence that any employees wish or do not wish to have a particular employee organization represent them as their bargaining agent, and the circumstances in which it must not make public any evidence so received; and

(m) any other matter that is incidental or conducive to the exercise of its powers, the performance of its functions or the attainment of the objects of this Part.

Powers of Board

40. (1) The Board has, in relation to any matter before it, the power to

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

(b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the date, time and place of the hearings for those procedures;

(c) order that a hearing or a pre-hearing conference be conducted using any means of telecommunication that permits all persons participating in the conference to communicate adequately with each other;

(d) administer oaths and solemn affirmations;

(e) accept any evidence, whether admissible in a court of law or not;

(f) examine any evidence that is submitted to it respecting membership of employees in an employee organization seeking certification and, in the case of a council of employee organizations seeking certification, in any employee organization forming part of the council;

(g) examine documents forming or relating to the constitution or articles of association of any employee organization seeking certification and, in the case of a council of employee organizations seeking certification, those of any employee organization forming part of the council;

(h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

(i) require the employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring matters or proceedings before the Board to the attention of employees;

(j) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter before it;

(k) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer for the purpose of conducting representation votes during working hours; and

(l) authorize any person to do anything that the Board may do under paragraphs (d) to (k) and require the person to report to it on what the person has done.

Frivolous applications

(2) The Board may dismiss summarily any application or complaint that in its opinion is frivolous or vexatious.

Determination without oral hearing

41. The Board may decide any matter before it without holding an oral hearing.

Scope of orders

42. In making an order or a decision, or doing any other thing in relation to any person under this Act, the Board may do so either generally or in any particular case or class of cases.

Review of orders and decisions

43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

Exception

(2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.


Chairperson

Chief executive officer

44. The Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including

(a) the assignment and reassignment of matters that the Board is seized of to panels;

(b) the composition of panels and the assignment of Vice-Chairpersons to preside over panels; and

(c) the determination of the date, time and place of hearings.

Delegation by Chairperson

45. The Chairperson may authorize a Vice-Chairperson to exercise any of the Chairperson’s powers or perform any of the Chairperson’s functions, including powers or functions delegated to the Chairperson by the Board.

Absence of Chairperson

46. (1) If the Chairperson is absent or unable to act, or the office of Chairperson is vacant, a Vice-Chairperson designated by the Minister is to act as Chairperson.

Absence of Chairperson and the Vice-Chairperson

(2) In the event of the absence or incapacity of both the Chairperson and the Vice-Chairperson designated by the Minister, or if both of those offices are vacant, the Minister may designate a member or any qualified person to act as Chairperson but no person so designated by the Minister has authority to act as Chairperson for more than 60 days without the approval of the Governor in Council.


Human Resources

Responsibility for human resources management

47. The Chairperson is authorized, in respect of persons employed by the Board, to exercise the powers and perform the functions of the Treasury Board under the Financial Administration Act that relate to human resources management within the meaning of paragraph 7(1)(e) and section 11.1 of that Act, and those of deputy heads under subsection 12(2) of that Act, including the determination of terms and conditions of employment of persons employed by the Board.

Executive Director of Board

48. (1) An Executive Director of the Board is to be appointed under the Public Service Employment Act.

Supervision of work

(2) The Executive Director of the Board assists the Chairperson in the exercise of the Chairperson’s functions and, subject to the Chairperson’s direction, directs and supervises the day-to-day conduct of the work of the Board, the management of the Board’s internal affairs and the work of persons employed by the Board.

Other persons

49. All other persons that the Board considers necessary for it to employ are to be appointed under the Public Service Employment Act.

Experts and advisers

50. (1) The Chairperson may engage on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Board in an advisory capacity and, subject to the approval of the Governor in Council, fix their remuneration.

Non-application of Public Service Superannuation Act

(2) A person engaged under subsection (1) is not to be considered as being employed in the public service for the purposes of the Public Service Superannuation Act by reason only of being so engaged.


Judicial Review and Enforcement of Orders

Orders not to be reviewed by court

51. (1) Subject to this Part, every order or decision of the Board is final and may not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

Standing of Board

(2) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board’s jurisdiction, policies and procedures.

No review by certiorari, etc.

(3) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part may, on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction,

(a) be questioned, reviewed, prohibited or restrained; or

(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise.

2003, c. 22, ss. 2 “51”, 274.

Previous VersionFiling of Board’s orders in Federal Court

52. (1) The Board must, on the request in writing of any person or organization affected by any order of the Board, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in its opinion,

(a) there is no indication of failure or likelihood of failure to comply with the order; or

(b) there is other good reason why the filing of the order in the Federal Court would serve no useful purpose.

Effect of filing

(2) An order of the Board becomes an order of the Federal Court when a certified copy of the order is filed in that court, and it may subsequently be enforced as such.


Advisory Board

Minister to establish

53. (1) The Minister shall establish an advisory board to provide advice to the Chairperson on the compensation analysis and research services provided by the Board.

Composition

(2) The advisory board is to consist of a chairperson and no more than 11 other members appointed by the Minister.

Qualifications

(3) All of the members must have knowledge or experience that will assist the advisory board to accomplish its mandate, including knowledge of or experience in compensation issues or statistics.

Representativeness

(4) Appointments to the advisory board are to be made such that there is an equal number of members representative of the employer and of employees.


Division 5

Bargaining Rights

Certification of Bargaining Agents

Application for Certification

Right to apply

54. Subject to section 55, an employee organization that seeks to be certified as bargaining agent for a group of employees that it considers constitutes a unit appropriate for collective bargaining may apply to the Board, in accordance with the regulations, for certification as bargaining agent for the proposed bargaining unit. The Board must notify the employer of the application without delay.

Agreements for term of two years or less

55. (1) If a collective agreement, or an arbitral award, with a term of two years or less applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only after the commencement of the last two months of its term.

Agreements for term of more than two years

(2) If a collective agreement, or an arbitral award, with a term of more than two years applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only

(a) after the commencement of the twenty-third month of its term and before the commencement of the twenty-fifth month of its term;

(b) during the two-month period immediately before the end of each year that the agreement or award continues to be in force after the second year of its term; or

(c) after the commencement of the last two months of its term.

Agreements for an indefinite term

(3) If a collective agreement that applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent provides that it will continue to operate after the term specified in it for a further term or successive terms if either party fails to give to the other a notice of termination or a notice of its desire to bargain with a view to the renewal of the collective agreement, with or without modifications, the application for certification may be made

(a) at any time permitted by subsection (1) or (2), as the case may be; or

(b) during the two-month period immediately before the end of each year that the collective agreement continues to operate after the term specified in the collective agreement.

Continuation of terms and conditions

56. After being notified of an application for certification made in accordance with this Part, the employer may not, except under a collective agreement or with the consent of the Board, alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

(a) the application has been withdrawn by the employee organization or dismissed by the Board; or

(b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.


Determination of Appropriate Bargaining Units

Determination of unit

57. (1) When an application for certification is made under section 54, the Board must determine the group of employees that constitutes a unit appropriate for collective bargaining.

Consideration of employer’s classification

(2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

Unit co-extensive with occupational groups

(3) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

Composition of bargaining unit

(4) For the purposes of this Part, a unit of employees may be determined by the Board to constitute a unit appropriate for collective bargaining whether or not its composition is identical with the group of employees in respect of which the application for certification was made.

Determination of questions of membership in bargaining units

58. On application by the employer or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining, or is included in any other unit.


Managerial or Confidential Positions

Application

59. (1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that

(a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, or a deputy head;

(b) the position is classified by the employer as being in the executive group, by whatever name called;

(c) the occupant of the position provides advice on labour relations, staffing or classification;

(d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;

(e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2;

(f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;

(g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer; or

(h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).

Content of application

(2) The application must set out every position that the employer considers to be a position referred to in any of paragraphs (1)(a) to (h).

2003, c. 22, ss. 2 “59”, 275.

Previous VersionCopy to employee organization

60. The employer must provide the employee organization seeking to be certified with a copy of the application.

Objection

61. If the employee organization considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Decision on objection

62. (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the employee organization an opportunity to make representations, determine whether the position is a position referred to in any of paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

Burden of proof on employee organization

(2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the employee organization.

Burden of proof on employer

(3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

When no objection filed

63. If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.


Certification

Conditions for certification

64. (1) After having determined the unit appropriate for collective bargaining, the Board must certify the applicant employee organization as the bargaining agent for the bargaining unit if it is satisfied

(a) that a majority of employees in that bargaining unit wish the applicant employee organization to represent them as their bargaining agent;

(b) that the persons representing the employee organization in the making of the application have been duly authorized to make the application; and

(c) if the applicant is a council of employee organizations, that each of the employee organizations forming the council has vested appropriate authority in the council to enable it to discharge the duties and responsibilities of a bargaining agent.

Where previous application denied within six months

(2) If an application for certification of an employee organization as the bargaining agent for a proposed bargaining unit has been denied by the Board, the Board may not consider a new application for certification from that employee organization in respect of the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the employee organization was last denied certification, unless the Board is satisfied that the previous application was denied by reason only of a technical error or omission made in connection with the application.

Membership in council of employee organizations

(3) For the purpose of paragraph (1)(a), membership in any employee organization that forms part of a council of employee organizations is deemed to be membership in the council.

Representation vote

65. (1) The Board may order that a representation vote be taken among the employees in the bargaining unit for the purpose of satisfying itself that a majority of them wish the applicant employee organization to represent them as their bargaining agent.

Arrangements for vote

(2) When the Board orders that a representation vote be taken, it must

(a) determine the employees who are eligible to vote; and

(b) make any arrangements and give any directions that it considers necessary for the proper conduct of the vote, including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.


Where Certification Prohibited

Employer participation

66. (1) The Board may not certify an employee organization as a bargaining agent if it is of the opinion that the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit for which it is proposed to be certified.

Discrimination

(2) The Board may not certify an employee organization as a bargaining agent if it discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.


Effect of Certification

Effect of certification

67. Certification of an employee organization as the bargaining agent for a bargaining unit has the following effects:

(a) the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

(b) the certification of any employee organization that was previously certified as the bargaining agent for any employees in the bargaining unit is deemed to be revoked to the extent that the certification relates to those employees;

(c) the employee organization is substituted as a party to any collective agreement or arbitral award that affects any employees in the bargaining unit, to the extent that the agreement or award relates to those employees, in the place of the bargaining agent named in the collective agreement or its successor;

(d) the employee organization is deemed to be the bargaining agent for the purposes of section 107; and

(e) the employee organization is substituted as a party to any essential services agreement that is in force, in the place of the bargaining agent named in the agreement or its successor.

Termination of existing collective agreement or arbitral award

68. An employee organization that is certified as the bargaining agent for a bargaining unit may, despite anything contained in any collective agreement or arbitral award that is binding on any employees in the bargaining unit on the day of certification, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, on two months’ notice to the employer given within one month from the day of certification.

Rights of previous or new bargaining agent

69. Any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of paragraph 67(b) or (c) or section 68 must, on application by the employer or the previous or new bargaining agent, be determined by the Board.


Changes to Certification

Review of Bargaining Units

Review of structure of bargaining units

70. (1) If the Board reviews the structure of one or more bargaining units, it must, in determining whether a group of employees constitutes a unit appropriate for collective bargaining, have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

Unit co-extensive with occupational groups

(2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.


Managerial or Confidential Positions

Application

71. (1) The employer may apply to the Board for an order declaring that any position of an employee in a bargaining unit for which a bargaining agent has been certified by the Board is a managerial or confidential position on the grounds that the position is a position referred to in any of paragraphs 59(1)(a) to (h).

Content of application

(2) The application must set out every position the employer considers to be a position referred to in any of paragraphs 59(1)(a) to (h).

Copy to bargaining agent

72. The employer must provide the bargaining agent with a copy of the application.

Objection

73. If the bargaining agent considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Decision on objection

74. (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is a position referred to in any paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

Burden of proof on bargaining agent

(2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the bargaining agent.

Burden of proof on employer

(3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

When no objection filed

75. If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.

Membership dues

76. (1) If an objection is filed under section 73, the employer must hold the amount that would otherwise be the membership dues in respect of the occupant of the position to which the objection relates until the Board makes an order declaring the position to be a managerial or confidential position, until it dismisses the application in respect of the position or until the objection is withdrawn, as the case may be.

Remission of dues to occupant of position

(2) If the Board makes an order declaring the position to be a managerial or confidential position or the objection is withdrawn, the amount held by the employer under subsection (1) must be remitted to the person to whom it relates.

Remission of dues to bargaining agent

(3) If the Board makes an order dismissing the application in respect of the position, the amount held by the employer under subsection (1) must be remitted to the bargaining agent.

Application for revocation of order

77. (1) If the bargaining agent considers that a position is no longer a managerial or confidential position, the bargaining agent may apply to the Board for an order revoking the order that declared that position to be a managerial or confidential position.

Copy to employer

(2) The bargaining agent must provide the employer with a copy of the application.

Decision

78. (1) If an application is made under section 77, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is still a managerial or confidential position and, if it determines that it is not, make an order revoking the order that declared the position to be a managerial or confidential position.

Burden of proof on bargaining agent

(2) The burden of proving that a particular position is no longer a managerial or confidential position is on the bargaining agent.


Successor Rights and Obligations

Mergers, amalgamations and transfers of jurisdiction

79. (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.

Board to determine questions

(2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

Inquiry and votes

(3) Before making a determination on the application, the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the determination. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Definitions

80. The following definitions apply in this section and sections 81 to 93.

“conversion”

« conversion »

“conversion” means the establishment as a separate agency, or the integration into a separate agency, of any portion, or part of a portion, of the core public administration.

“new separate agency”

« nouvel organisme distinct »

“new separate agency” means a separate agency established as a result of a conversion or into which is integrated any portion, or part of a portion, of the core public administration as the result of a conversion.

Continuation of collective agreement or arbitral award

81. Subject to sections 83 to 93, a collective agreement or arbitral award that applies to employees in any portion, or part of a portion, of the core public administration before its conversion continues in force after the conversion, and binds the new separate agency, until its term expires.

Parties may amend

82. Nothing in section 81 prohibits the new separate agency and the bargaining agent from amending any provision of a collective agreement, other than a provision relating to its term.

Application for certification

83. An employee organization may apply to the Board for certification as the bargaining agent for the employees bound by a collective agreement or arbitral award that is continued in force by section 81, but it may do so only during the period in which an application for certification is authorized to be made under section 55 in respect of those employees.

Power of Board

84. (1) Whenever a collective agreement or arbitral award is continued in force by section 81, the Board must, by order, on application by the new separate agency or any bargaining agent affected by the conversion,

(a) determine whether the employees of the new separate agency who are bound by any collective agreement or arbitral award constitute one or more units appropriate for collective bargaining;

(b) determine which employee organization is to be the bargaining agent for the employees in each such unit; and

(c) in respect of each collective agreement or arbitral award that binds employees of the new separate agency, determine whether the collective agreement or arbitral award is to remain in force and, if it is to remain in force, determine whether it is to remain in force until the expiration of its term or until any earlier date that the Board may fix.

When application may be made

(2) The application may be made only during the period beginning 120 days and ending 150 days after the conversion date.

Application for leave to give notice to bargain collectively

85. (1) Either party to a collective agreement or arbitral award that remains in force by reason of an order made under paragraph 84(1)(c) may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

When application may be made

(2) The application must be made within 90 days after the day on which the order is made.

Application for leave to give notice to bargain collectively

86. (1) If no application for an order under subsection 84(1) is made within the period specified in subsection 84(2), the new separate agency or any bargaining agent bound by a collective agreement or arbitral award that is continued in force by section 81 may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

When application may be made

(2) The application may be made only during the period beginning 151 days and ending 240 days after the date of the conversion.

Notice to bargain given before conversion

87. A notice to bargain collectively that was given before a conversion does not bind the new separate agency and a new notice to bargain collectively may be given only in the circumstances described in paragraph 89(b).

Duty to observe terms and conditions

88. If a notice to bargain collectively was given before a conversion, then, unless the new separate agency and the bargaining agent agree otherwise, the terms and conditions of employment continued in force by section 107 are binding on the new separate agency, the bargaining agent for the bargaining unit and the employees in the bargaining unit from the date of the conversion until

(a) the expiry of 150 days following the date of the conversion, if no application is made under paragraph 89(a); or

(b) if such an application is made, the day the notice referred to in paragraph 89(b) is given.

Application and notice to bargain

89. If a notice to bargain collectively was given before a conversion,

(a) on application by the new separate agency or bargaining agent, made during the period beginning 120 days, and ending 150 days, after the date of the conversion, the Board must make an order determining

(i) whether the employees of the new separate agency who are represented by the bargaining agent constitute one or more units appropriate for collective bargaining, and

(ii) which employee organization is to be the bargaining agent for the employees in each such unit; and

(b) if the Board makes the determinations under paragraph (a), the new separate agency or the bargaining agent may, by notice given under section 105, require the other to commence collective bargaining for the purpose of entering into a collective agreement.

Inquiry and votes

90. Before making an order under subsection 84(1) or paragraph 89(a), the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the order. The provisions of subsection 65(2) apply in relation to the taking of a vote.

Consideration of employer’s classification

91. (1) For the purposes of paragraphs 84(1)(a) and 89(a), in determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

Unit co-extensive with occupational groups

(2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

Determination of questions of membership in bargaining units

92. On application by the new separate agency or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board under paragraph 84(1)(a) or 89(a) to constitute a unit appropriate for collective bargaining, or is included in any other unit.

Employer participation

93. (1) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it is of the opinion that the new separate agency, or a person acting on behalf of the new separate agency, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit.

Discrimination

(2) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.


Revocation of Certification

When employee organization no longer represents employees

94. (1) Any person claiming to represent a majority of the employees in a bargaining unit bound by a collective agreement or an arbitral award may apply to the Board for a declaration that the employee organization that is certified as the bargaining agent for the bargaining unit no longer represents a majority of the employees in the bargaining unit.

When application may be made

(2) The application may be made only during the period in which an application for certification of an employee organization may be made under section 55 in respect of employees in the bargaining unit.

Taking of representation vote

95. After the application is made, the Board may order that a representation vote be taken in order to determine whether a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization that is the bargaining agent for that bargaining unit. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Revocation of certification

96. If, after hearing the application, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization, it must revoke the certification of the employee organization as the bargaining agent.

Certification obtained by fraud

97. The Board must revoke the certification of an employee organization if the Board is satisfied that it was obtained by fraud.

Employer participation or discrimination

98. The Board must revoke the certification of an employee organization as the bargaining agent for a bargaining unit if the Board, on application by the employer or any employee, determines that

(a) the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit; or

(b) the employee organization discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Abandonment of certification

99. The Board must revoke the certification of an employee organization if the employee organization advises the Board that it wishes to give up or abandon its certification or if the Board, on application by the employer or any employee, determines that the employee organization has ceased to act as bargaining agent.

Council of employee organizations

100. (1) The Board must revoke the certification of a council of employee organizations that has been certified as a bargaining agent if the Board is satisfied, on application by the employer or an employee organization that forms or has formed part of the council, that the council no longer meets the condition for certification set out in paragraph 64(1)(c) for a council of employee organizations.

Subsection (1) in addition to other circumstances

(2) The circumstances set out in subsection (1) apply in addition to the circumstances in which a certification may be revoked under sections 94 to 99.

Effect of revocation

101. (1) Revocation of the certification of an employee organization certified as the bargaining agent for a bargaining unit has the following effects:

(a) subject to paragraph 67(c), any collective agreement or arbitral award that is binding on the employees in the bargaining unit ceases to be in force;

(b) subject to subsection (2), any rights or privileges flowing from the certification are terminated; and

(c) subject to paragraph 67(e), any essential services agreement that is in force in respect of positions in the bargaining unit ceases to be in force.

Determination of rights of bargaining agent

(2) If the certification of an employee organization is revoked by the Board under section 96 or any of sections 98 to 100, the Board must, on application by the employee organization or any employee organization that is substituted in the place of a bargaining agent under paragraph 67(c), determine any question as to any right or duty of the employee organization or of the substituted employee organization.

Direction

102. If a collective agreement or arbitral award ceases to be in force as a result of the revocation of an employee organization’s certification as the bargaining agent for a bargaining unit, the Board must, on application by or on behalf of any employee in the bargaining unit, by order, direct the manner in which any right of the employee is to be recognized and given effect.


Division 6

Choice of Process for Dispute Resolution

Choice of process

103. (1) A bargaining agent for a bargaining unit must notify the Board, in accordance with the regulations, of the process it has chosen — either arbitration or conciliation — to be the process for the resolution of disputes to which it may be a party.

Recording of process

(2) The Board must record the process chosen by the bargaining agent for the resolution of disputes.

Period during which process to apply

(3) The process recorded by the Board applies to the bargaining unit for the resolution of all disputes from the day on which a notice to bargain collectively in respect of the bargaining unit is given after the process is chosen, and it applies until the process is changed in accordance with section 104.

Change of process

104. (1) A bargaining agent for a bargaining unit that wishes to change the process for the resolution of a dispute that is applicable to the bargaining unit may apply to the Board, in accordance with the regulations, to record the change.

Recording of change

(2) On receiving the application, the Board must record the change of process.

Effective date and duration

(3) A change in the process for the resolution of a dispute becomes effective on the day that a notice to bargain collectively is given after the change is recorded and remains in force until the process is changed in accordance with this section.


Division 7

Collective Bargaining and Collective Agreements

Negotiation of Collective Agreements

Notice to Bargain Collectively

Notice to bargain collectively

105. (1) After the Board has certified an employee organization as the bargaining agent for a bargaining unit and the process for the resolution of a dispute applicable to that bargaining unit has been recorded by the Board, the bargaining agent or the employer may, by notice in writing, require the other to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement.

When notice may be given

(2) The notice to bargain collectively may be given

(a) at any time, if no collective agreement or arbitral award is in force and no request for arbitration has been made by either of the parties in accordance with this Part; or

(b) if a collective agreement or arbitral award is in force, within the four months before it ceases to be in force.

Copy of notice to Board

(3) A party that has given a notice to bargain collectively to another party must send a copy of the notice to the Board.


Effect of Notice

Duty to bargain in good faith

106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to enter into a collective agreement.

Duty to observe terms and conditions

107. Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

(a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or

(b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).


Mediation

Appointment of mediator

108. (1) The Chairperson may at any time, if requested to do so or on his or her own initiative, appoint a mediator to confer with the parties to a dispute and to endeavour to assist them in settling the dispute by any means that the mediator considers appropriate, including mediation, facilitation and fact-finding, subject to any direction that the Chairperson may give.

Recommendations

(2) At the request of the parties or the Chairperson, the mediator may make recommendations for settlement of the dispute.


Collective Bargaining for Two or More Units

Negotiation of single collective agreement

109. (1) Despite any other provision of this Part, the employer and one or more bargaining agents may jointly elect to engage in collective bargaining with a view to entering into a single collective agreement binding on two or more bargaining units.

Election not changeable

(2) If made, the election may not be changed until the single collective agreement is entered into.


Two-tier Bargaining

Two-tier bargaining

110. (1) Subject to the other provisions of this Part, the employer, the bargaining agent for a bargaining unit and the deputy head for a particular department named in Schedule I to the Financial Administration Act or for another portion of the federal public administration named in Schedule IV to that Act may jointly elect to engage in collective bargaining respecting any terms and conditions of employment in respect of any employees in the bargaining unit who are employed in that department or other portion of the federal public administration.

More than one department or portion

(2) Collective bargaining under subsection (1) may relate to more than one department or other portion of the federal public administration if each of the deputy heads concerned elects to engage in the collective bargaining.

Duty to bargain in good faith

(3) The parties who elect to bargain collectively under subsection (1) must, without delay after the election,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to reach agreement on the terms and conditions of employment in question.


Collective Agreements

Authority to Enter into Agreement

Authority of Treasury Board

111. The Treasury Board may, in the manner that may be provided for by any rules or procedures determined by it under section 5 of the Financial Administration Act, enter into a collective agreement with the bargaining agent for a bargaining unit, other than a bargaining unit composed of employees of a separate agency.

Authority of separate agency

112. A separate agency may, with the approval of the Governor in Council, enter into a collective agreement with the bargaining agent for a bargaining unit composed of employees of the separate agency.


Restriction on Content of Collective Agreement

Collective agreement not to require legislative implementation

113. A collective agreement may not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition; or

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.


Duration and Effect

Agreement is binding

114. Subject to, and for the purposes of, this Part, a collective agreement is binding on the employer, the bargaining agent and every employee in the bargaining unit on and after the day on which it has effect. To the extent that the collective agreement deals with matters referred to in section 12 of the Financial Administration Act, the collective agreement is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

When agreement has effect

115. A collective agreement has effect in respect of a bargaining unit as of

(a) the effective date specified in it; or

(b) if no effective date is specified, the first day of the month after the month in which the agreement is signed.

Minimum duration

116. A collective agreement is deemed to have effect for one year, unless a longer period is specified in the collective agreement.

Duty to implement provisions of the collective agreement

117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

(a) within the period specified in the collective agreement for that purpose; or

(b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.


Amendments

Parties may amend

118. Nothing in this Part prohibits parties from amending any provision of a collective agreement, other than a provision relating to its term.


Division 8

Essential Services

Application of Division

119. This Division applies to the employer and the bargaining agent for a bargaining unit when the process for the resolution of a dispute applicable to the bargaining unit is conciliation.

Employer determines levels of service

120. The employer has the exclusive right to determine the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided. Nothing in this Division is to be construed as limiting that right.

Proportion of duties may vary during strike

121. (1) For the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, the employer and the bargaining agent may agree that some employees in the bargaining unit will be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

Determination of number of necessary employees

(2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

Obligation to negotiate

122. (1) If the employer has given to the bargaining agent a notice in writing that the employer considers that employees in the bargaining unit occupy positions that are necessary for the employer to provide essential services, the employer and the bargaining agent must make every reasonable effort to enter into an essential services agreement as soon as possible.

Timing

(2) The notice may be given at any time but not later than 20 days after the day a notice to bargain collectively is given.

Application to the Board

123. (1) If the employer and the bargaining agent are unable to enter into an essential services agreement, either of them may apply to the Board to determine any unresolved matter that may be included in an essential services agreement. The application may be made at any time but not later than

(a) 15 days after the day a request for conciliation is made by either party; or

(b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

Delay

(2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to enter into an essential services agreement.

Powers of Board

(3) After considering the application, the Board may determine any matter that the employer and the bargaining agent have not agreed on that may be included in an essential services agreement and make an order

(a) deeming the matter determined by it to be part of an essential services agreement between the employer and the bargaining agent; and

(b) deeming that the employer and the bargaining agent have entered into an essential services agreement.

Restriction

(4) The order may not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

Proportion of duties may vary during strike

(5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

Determination of number of necessary employees

(6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

Application relating to specific position

(7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Coming into force of agreement

124. The essential services agreement comes into force on the day it is signed by the parties or, in the case of an essential services agreement that the employer and the bargaining agent are deemed to have entered into by an order made under paragraph 123(3)(b), the day the order was made.

Duration

125. An essential services agreement continues in force until the parties jointly determine that there are no employees in the bargaining unit who occupy positions that are necessary for the employer to provide essential services.

Notice to negotiate amendment

126. (1) If a party to an essential services agreement gives a notice in writing to the other party that the party giving the notice seeks to amend the essential services agreement, the parties must make every reasonable effort to amend it as soon as possible.

Timing

(2) If a collective agreement or arbitral award is in force, the notice may be given at any time except that, if a notice to bargain collectively has been given with a view to renewing or revising the collective agreement, the notice may only be given during the 60 days following the day the notice to bargain collectively was given.

Application to Board

127. (1) If the employer and the bargaining agent are unable to amend the essential services agreement, either of them may apply to the Board to amend the essential services agreement. The application may be made at any time but not later than

(a) 15 days after the day a request for conciliation is made by either party; or

(b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.

Delay

(2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to amend the essential services agreement.

Amendment by Board

(3) The Board may, by order, amend the essential services agreement if it considers that the amendment is necessary for the employer to provide essential services.

Restriction

(4) The order may not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.

Proportion of duties may vary during strike

(5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.

Determination of number of necessary employees

(6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined

(a) without regard to the availability of other persons to provide the essential service during a strike; and

(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.

Application relating to specific position

(7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.

Coming into force of amendment

128. An amendment to an essential services agreement comes into force on the day the agreement containing the amendment is signed by the parties or, in the case of an amendment made by order of the Board under subsection 127(3), the day the order was made.

Replacement positions

129. (1) If, at any time while an essential services agreement is in force, a position identified in it becomes vacant, the employer may identify a position of the same type as a replacement position. If the employer does so, the employer must file a notice of replacement with the Board and provide a copy to the bargaining agent.

Effect of notice

(2) On the filing of the notice, the replacement position is deemed to be a position identified in the essential services agreement and the position it replaced is deemed to be no longer identified.

Notification of employees

130. (1) The employer must provide every employee who occupies a position that has been identified in an essential services agreement as being a position that is necessary for the employer to provide essential services with a notice informing the employee that the employee occupies such a position.

Notification of change

(2) A notice given under this section remains valid so long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by the employee is no longer necessary for the employer to provide essential services.

Emergency application

131. Despite any provision in this Division, if either the employer or the bargaining agent is of the opinion that a temporary amendment to an essential services agreement, or its suspension, is necessary because of an emergency but the parties are unable to agree to do so, either of them may, at any time, apply to the Board for an order temporarily amending, or suspending, the agreement.

Duty to observe terms and conditions

132. Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

Extension of time

133. The Board may, on the application of either party, extend any period referred to in this Division.

Filing of essential services agreement

134. Either party to an essential services agreement may file a copy of it with the Board. When filed, it has the same effect as an order of the Board.


Division 9

Arbitration

Application of Division

Application

135. This Division applies to the employer and the bargaining agent for a bargaining unit whenever

(a) the process for the resolution of a dispute applicable to the bargaining unit is arbitration; and

(b) the parties have bargained in good faith with a view to entering into a collective agreement but are unable to reach agreement on a term or condition of employment that may be included in an arbitral award.


Request for Arbitration

Request for arbitration

136. (1) Either party may, by notice in writing to the Chairperson, request arbitration in respect of any term or condition of employment that may be included in an arbitral award.

When request may be made

(2) The request may be made

(a) at any time, if the parties have not entered into a collective agreement and no request for arbitration has been made by either party since the commencement of the bargaining; or

(b) not later than seven days after a collective agreement is entered into by the parties, in any other case.

Contents of notice

(3) The party requesting arbitration must

(a) specify in the notice every term or condition of employment in respect of which it requests arbitration and its proposals concerning the award to be made in respect of that term or condition; and

(b) annex to the notice a copy of the most recent collective agreement entered into by the parties.

Notice to other party

(4) On receiving the notice, the Chairperson must send a copy to the other party.

Request for arbitration of additional matters

(5) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request arbitration in respect of any other term or condition of employment that may be included in an arbitral award and that remained in dispute when the first request for arbitration was made.

Notice to include proposal

(6) The party making the request under subsection (5) must specify in the notice its proposal concerning the award to be made in respect of every term or condition of employment in respect of which it requests arbitration.


Establishment of Arbitration Board

Establishment

137. (1) On receiving a request for arbitration, the Chairperson must establish an arbitration board for arbitration of the matters in dispute.

Delay

(2) The Chairperson may delay establishing an arbitration board until he or she is satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.

Constitution

138. The arbitration board consists of either a single member or three members, appointed in accordance with section 139 or 140, as the case may be.

Board with single member

139. If the parties jointly recommend the appointment of a person to be an arbitration board consisting of a single member, the Chairperson must appoint the person to be the arbitration board.

Board with three members

140. (1) If either party requests that an arbitration board consisting of three members be established, the Chairperson must, by notice, require each of the parties, within seven days after receipt of the notice, to nominate a person to be a member of the arbitration board, and on receipt of the nominations, the Chairperson must appoint the nominated persons as members of the arbitration board.

Failure to nominate

(2) If a party fails to nominate a person within the time provided for in subsection (1) or nominates a person who is not eligible for appointment, the Chairperson must appoint as a member of the arbitration board a person whom he or she considers suitable, and that person is deemed to have been appointed on the nomination of that party.

Appointment of chairperson nominated by parties

(3) Within five days after the day on which the second member is appointed, the two members must nominate a third person who is eligible for appointment and ready and willing to act, to be chairperson and third member of the arbitration board, and the Chairperson must appoint that person as the chairperson and third member of the arbitration board.

Failure to nominate

(4) If the two members fail to make a nomination under subsection (3) or they nominate a person who is not eligible for appointment, the Chairperson must, without delay, appoint as the chairperson and third member of the arbitration board a person whom he or she considers suitable.

Eligibility

141. No person may act as a member of an arbitration board in respect of a matter referred to arbitration if the person has, at any time during the six months before the person’s date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to arbitration.

Notification of establishment

142. (1) The Chairperson must, without delay, notify the parties of the establishment of the arbitration board and of the name or names of its member or members, as the case may be.

Effect of notification

(2) The notification constitutes conclusive proof that the arbitration board has been established in accordance with this Part and, after it is given, no order may be made or process entered into, and no proceedings may be taken in any court, to question the establishment of the board or to review, prohibit or restrain any of its proceedings.

Death, incapacity or resignation of single member

143. (1) In the event of the death, incapacity or resignation of the member of an arbitration board that consists of a single member before the arbitration board makes an arbitral award, the Chairperson must appoint another person in accordance with section 139. That person must recommence the arbitration proceedings from the beginning.

Vacancy — board with three members

(2) If a vacancy occurs in the membership of an arbitration board that consists of three members before the arbitration board makes an arbitral award, the vacancy must be filled by the Chairperson by appointment in the manner provided in section 140 for the selection of the person in respect of whom the vacancy arose.


Referral to Arbitration

Referral to arbitration

144. (1) Subject to section 150, after establishing the arbitration board, the Chairperson must without delay refer the matters in dispute to the board.

Subsequent agreement

(2) If, before an arbitral award is made, the parties reach agreement on any matter in dispute that is referred to arbitration and enter into a collective agreement in respect of that matter, that matter is deemed not to have been referred to the arbitration board and no arbitral award may be made in respect of it.


Duty and Powers

Assistance to parties

145. As soon as possible after being established, the arbitration board must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.

Procedure

146. (1) Except as otherwise provided in this Part, the arbitration board may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.

Quorum and absence of members

(2) The chairperson of the arbitration board and one other member constitute a quorum in the case of an arbitration board consisting of three members but, in the absence of a member at any proceedings of the board, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.

Powers

147. (1) The arbitration board has all the powers of the Board set out in paragraphs 40(1)(a), (d), (e) and (h) to (j).

Delegation

(2) The arbitration board may authorize any person to exercise any of its powers set out in paragraphs 40(1)(d), (e), (i) and (j) and require that person to report to it on the exercise of those powers.

Factors to be considered

148. In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;

(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.


Making of Arbitral Award

Making of arbitral award

149. (1) The arbitration board must make an arbitral award as soon as possible in respect of all the matters in dispute that are referred to it.

Award to be signed

(2) The arbitral award must be signed by the chairperson of the arbitration board, or by the single member, as the case may be, and a copy must be sent to the Chairperson.

Award not to require legislative implementation

150. (1) The arbitral award may not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if

(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

(c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees;

(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct; or

(e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.

Matters not negotiated

(2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.

Decision of majority

151. (1) If the arbitration board consists of three members, a decision of a majority of the members in respect of the matters in dispute is a decision of the board on those matters and is the arbitral award in respect of those matters.

Decision where majority cannot agree

(2) If a majority of members of the arbitration board cannot agree in respect of the matters in dispute, the decision of the chairperson of the board is the arbitral award in respect of those matters.

Form of award

152. The form of the arbitral award must, wherever possible, permit the award to be

(a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the arbitral award applies; and

(b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the arbitral award.

Copy sent to parties

153. On receipt of a copy of the arbitral award, the Chairperson must, without delay, send a copy to the parties and may cause the award to be published in any manner that the Chairperson considers appropriate.


Duration and Operation of Arbitral Award

Binding effect

154. Subject to and for the purposes of this Part, as of the day on which it is made, the arbitral award binds the employer and the bargaining agent that are parties to it and the employees in the bargaining unit in respect of which the bargaining agent has been certified. To the extent that it deals with matters referred to in section 12 of the Financial Administration Act, the arbitral award is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

When arbitral award has effect

155. (1) The arbitral award has effect as of the day on which it is made or, subject to subsection (2), any earlier or later day that the arbitration board may determine.

Limitation on retroactive effect

(2) The arbitral award or any of its parts may be given retroactive effect, but not earlier than the day notice to bargain collectively was given.

Effect on previous collective agreement or award

(3) If a provision of an arbitral award is to have retroactive effect, the provision displaces, for the retroactive period specified in the arbitral award, any term or condition of any previous collective agreement or arbitral award with which it is in conflict.

Term of arbitral award

156. (1) The arbitration board must determine the term of the arbitral award and set it out in the arbitral award.

Factors

(2) In determining the term of an arbitral award, the arbitration board must take the following into account:

(a) if a collective agreement applicable to the bargaining unit is in force or has been entered into but is not yet in force, the term of that collective agreement; or

(b) if no collective agreement applying to the bargaining unit has been entered into,

(i) the term of any previous collective agreement that applied to the bargaining unit, or

(ii) the term of any other collective agreement that it considers relevant.

Limitation on term

(3) An arbitral award may not be for a term of less than one year or more than two years from the day on which it becomes binding on the parties, unless the arbitration board determines otherwise in any case where paragraph (2)(a) or (b) applies.


Implementation

Duty to implement provisions of the arbitral award

157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.


Matters Not Dealt With

Reference of matters not dealt with

158. Any party that considers that the arbitration board has failed to deal with a matter in dispute that was referred to arbitration may, within seven days after the day on which the arbitral award is made, refer the matter back to the arbitration board which must then deal with it.


Amendment

Amendment

159. The Board may, on the joint application of both parties to whom an arbitral award applies, amend any provision of the arbitral award if it considers that the amendment is warranted having regard to circumstances that have arisen since the making of the arbitral award, or of which the arbitration board did not have notice when the award was made, or to any other circumstances that the Board considers relevant.


Division 10

Conciliation

Application of Division

Application

160. This Division applies to the employer and the bargaining agent for a bargaining unit whenever

(a) the process for the resolution of a dispute applicable to the bargaining unit is conciliation; and

(b) the parties have bargained in good faith with a view to entering into a collective agreement, but are unable to reach agreement on a term or condition of employment that may be included in a collective agreement.


Request for Conciliation

Request for conciliation

161. (1) Either party may, by notice in writing to the Chairperson, request conciliation in respect of any term or condition of employment that may be included in a collective agreement.

Contents of notice

(2) The party requesting conciliation must

(a) specify in the notice the terms or conditions of employment in respect of which it requests conciliation, and its proposals concerning the report to be made in respect of that term or condition; and

(b) annex to the notice a copy of the most recent collective agreement entered into by the parties.

Notice to other party

(3) On receiving the notice, the Chairperson must send a copy to the other party.

Request for conciliation of additional matters

(4) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request conciliation in respect of any other term or condition of employment that may be included in a collective agreement and that remained in dispute when the first request for conciliation was made.

Notice to include proposal

(5) The party making the request under subsection (4) must specify in the notice its proposal concerning the report to be made in respect of the term or condition of employment in respect of which it requests conciliation.


Establishment of Public Interest Commission

Recommendation to establish

162. (1) Subject to subsection (3), on receiving a request for conciliation, the Chairperson must recommend to the Minister that a public interest commission be established for conciliation of the matters in dispute.

Delay

(2) The Chairperson may delay recommending the establishment of a public interest commission until satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.

Refusal

(3) If the Chairperson considers, after consultation with each of the parties, that the establishment of a public interest commission is unlikely to assist them in reaching agreement, the Chairperson must, without delay, notify the parties in writing that he or she will not recommend the establishment of such a commission.

Chairperson’s initiative

163. (1) The Chairperson may, on his or her own initiative, recommend to the Minister that a public interest commission be established for the conciliation of a dispute if he or she considers that establishing one might assist the parties in reaching agreement and that the parties are unlikely to reach agreement otherwise.

Notice

(2) Before acting under subsection (1), the Chairperson must notify the parties of his or her intention to do so.

Constitution

164. (1) The public interest commission consists of either a single member appointed in accordance with section 166 or, subject to subsection (2), three members, appointed in accordance with section 167.

Request for commission of three members

(2) The public interest commission is to consist of three members only if one of the parties requests it.

List

165. (1) For the purposes of sections 166 and 167, the Chairperson must, after consultation with the parties, prepare a list of names of persons who could be selected to act as a public interest commission that consists of a single member, or as the chairperson of a public interest commission that consists of three members.

Contents

(2) The list must set out

(a) the names of all eligible persons jointly recommended by the parties; and

(b) if the Chairperson is of the opinion that the parties have not jointly recommended a sufficient number of persons, the names of any other eligible persons whom the Chairperson considers suitable.

Commission with single member

166. (1) If the public interest commission is to consist of a single member, the Chairperson must submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend the appointment of a particular person named in the list.

Appointment

(2) After receiving the list, the Minister must, without delay, appoint a person named in the list.

Commission with three members

167. (1) If either party requests that the public interest commission consist of three members, the Chairperson must, by notice, require each of the parties, within seven days of its receipt, to nominate a person to be a member of the commission, and on receipt of the nominations, the Chairperson must recommend to the Minister the appointment of the nominated persons as members of the commission. The Minister must appoint those persons without delay.

Failure to nominate

(2) If a party fails to nominate a person within the time provided for in subsection (1) or nominates a person who is not eligible for appointment, the Chairperson must recommend to the Minister the appointment as a member of the public interest commission of a person whom he or she considers suitable. The Minister must appoint the person without delay and that person is deemed to have been appointed on the nomination of that party.

Appointment of chairperson nominated by parties

(3) Within five days after the day on which the second member is appointed, the two members must nominate to be chairperson and third member of the public interest commission a person from the list prepared under subsection 165(1), and the Chairperson must recommend to the Minister the appointment of that person. The Minister must appoint the person without delay as chairperson and third member of the commission.

Failure to nominate

(4) If the two members fail to make a nomination under subsection (3), the Chairperson must, without delay, submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend to the Minister the appointment of a particular person named in the list as the chairperson and third member of the public interest commission.

Appointment

(5) After receiving the list, the Minister must, without delay, appoint a person named in the list as the chairperson and third member of the public interest commission.

Eligibility

168. No person may act as a member of the public interest commission in respect of a matter referred to conciliation if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to conciliation.

Notification of establishment

169. (1) The Chairperson must, without delay, notify the parties of the establishment of the public interest commission and of the name or names of its member or members, as the case may be.

Effect of notification

(2) The notification constitutes conclusive proof that the public interest commission has been established in accordance with this Part and, after it is given, no order may be made or process entered into, and no proceedings may be taken in any court, to question the establishment of the commission or to review, prohibit or restrain any of its proceedings.

Death, incapacity or resignation of single member

170. (1) In the event of the death, incapacity or resignation of the member of a public interest commission that consists of a single member before the commission makes a report to the Chairperson, the Chairperson must recommend to the Minister the appointment of another person from the list submitted under section 166 and the Minister must, without delay, appoint that person or another person on the list. That person must recommence the conciliation proceedings from the beginning.

Vacancy — commission with three members

(2) If a vacancy occurs in the membership of a public interest commission that consists of three members before the commission makes a report to the Chairperson, the vacancy must be filled by the Minister, on the recommendation of the Chairperson, by appointment in the manner provided for in section 167 for the selection of the person in respect of whom the vacancy arose.

Delivery of notice

171. After a public interest commission is established, the Chairperson must, without delay, deliver to it a copy of the notice given under subsection 161(1), if one was given.


Powers and Functions

Assistance to parties

172. As soon as possible after being established, the public interest commission must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.

Procedure

173. (1) Except as otherwise provided in this Part, the public interest commission may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.

Quorum and absence of members

(2) The chairperson of the public interest commission and one other member constitute a quorum in the case of a commission consisting of three members but, in the absence of a member at any proceedings of the commission, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.

Powers

174. (1) The public interest commission has all the powers of the Board set out in paragraphs 40(1)(a), (d), (e) and (h) to (j).

Delegation

(2) The public interest commission may authorize any person to exercise any of its powers set out in paragraphs 40(1)(d), (e), (i) and (j) and require that person to report to it on the exercise of those powers.

Factors to be considered

175. In the conduct of its proceedings and in making a report to the Chairperson, the public interest commission must take into account the following factors, in addition to any other factors that it considers relevant:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the public interest commission considers relevant;

(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.


Report

Report to Chairperson

176. (1) The public interest commission must submit a report to the Chairperson as to its success or failure in assisting the parties to the dispute and as to its findings and recommendations within 30 days after it is established, or within any longer period that may be agreed on by the parties or determined by the Chairperson.

Report to be signed

(2) The report must be signed by the chairperson of the public interest commission, or by the single member, as the case may be.

Report not to require legislative implementation

177. (1) The report may not, directly or indirectly, recommend the alteration or elimination of any existing term or condition of employment, or the establishment of any new term or condition of employment, if

(a) the alteration, elimination or establishment would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for implementation;

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

(c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees; or

(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct.

Matters not negotiated

(2) The report of the public interest commission may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before conciliation was requested.

Findings and recommendations of majority

178. (1) If the public interest commission consists of three members, the findings and recommendations of a majority of the members in respect of the matters in dispute are deemed to be those of the commission.

Findings and recommendations when majority cannot agree

(2) If a majority of members of the public interest commission cannot agree in respect of the commission’s findings and recommendations, the findings and recommendations of the chairperson of the commission in respect of the matters in dispute are deemed to be those of the commission.

Reconsideration of matters contained in report

179. The Chairperson may direct the public interest commission to reconsider and clarify or amplify its report or any part of the report.

Copy of report to be sent to parties

180. The Chairperson must, as soon as possible after receiving the report or, if the Chairperson makes a direction under section 179, as soon as possible after receiving the reconsidered report, send a copy to the parties and cause the report, or the reconsidered report, as the case may be, to be published in any manner that he or she considers appropriate.

Agreement to be bound

181. If, before the public interest commission submits its report to the Chairperson, the parties agree in writing that one or more recommendations to be made by the public interest commission in the report are to be binding on them, each such recommendation, once made, is binding on them and must be given effect.


Alternate Dispute Resolution Process

Alternate dispute resolution process

182. (1) Despite any other provision of this Part, the employer and a bargaining agent for a bargaining unit may, at any time in the negotiation of a collective agreement, agree to refer any term or condition of employment of employees in the bargaining unit that may be included in a collective agreement to any eligible person for final and binding determination by whatever process the employer and the bargaining agent agree to.

Alternate process applicable only to terms referred to it

(2) If a term or condition is referred to a person for final and binding determination, the process for resolution of a dispute concerning any other term or condition continues to be conciliation.

Agreement not unilaterally changeable

(3) Unless both parties agree, the referral of a term or condition to a person for final and binding determination remains in force until the determination is made.

Form of determination

(4) The form of the final and binding determination must, wherever possible, permit the determination to be

(a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the determination applies; and

(b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the determination.

Binding effect

(5) The determination is binding on the employer, the bargaining agent and the employees in the bargaining unit and is deemed to be incorporated into any collective agreement binding on the employees in the bargaining unit in respect of which the determination applies or, if there is no such agreement, is deemed to be such an agreement.

Eligibility

(6) A person is not eligible to be appointed as a person who makes a final and binding determination under this section if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as solicitor, counsel or agent of the employer or of any employee organization that has an interest in the term or condition referred for final and binding determination.


Vote on Employer’s Offer

Minister may order vote to be held

183. (1) If the Minister is of the opinion that it is in the public interest that the employees in a bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the bargaining agent in respect of all matters remaining in dispute between the parties, the Minister may

(a) on any terms and conditions that the Minister considers appropriate, direct that a vote to accept or reject the offer be held by secret ballot as soon as possible among all of the employees in the bargaining unit; and

(b) designate the Board, or any other person or body, to be in charge of conducting that vote.

Vote does not delay right

(2) The direction that a vote be held, or the holding of that vote, does not prevent the declaration or authorization of a strike if the employee organization that is certified as the bargaining agent is not otherwise prohibited from making the declaration or authorization, nor does it prevent the participation in a strike by an employee if the employee is not otherwise prohibited from participating in the strike.

Consequences of favourable vote

(3) If a majority of the employees participating in the vote accept the employer’s last offer,

(a) the parties are bound by that offer and must, without delay, enter into a collective agreement that incorporates the terms of that offer; and

(b) any strike that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance must cease immediately, and the employees must return to work as soon as the employer determines that it is practicable for them to do so.

Powers respecting vote

(4) The Board or other person or body in charge of conducting the vote must determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.


Division 11

Strike Votes

Secret ballot vote

184. (1) In order to obtain approval to declare or authorize a strike, an employee organization must hold a vote by secret ballot among all of the employees in the bargaining unit conducted in a manner that ensures that the employees are given a reasonable opportunity to participate in the vote and be informed of the results.

Application to have vote declared invalid

(2) An employee who is a member of a bargaining unit for which a vote referred to in subsection (1) was held and who alleges that there were irregularities in the conduct of the vote may, no later than 10 days after the day the results of the vote are announced, make an application to the Board to have the vote declared invalid.

Dismissal of application

(3) The Board may summarily dismiss the application if it is satisfied that, even if the alleged irregularities did occur, the outcome of the vote would not have been different.

New vote

(4) If the Board declares the vote invalid, it may order that a new vote be held in accordance with the conditions it specifies in the order.


Division 12

Unfair Labour Practices

Meaning of “unfair labour practice”

185. In this Division, “unfair labour practice” means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

Unfair labour practices — employer

186. (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall

(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or

(b) discriminate against an employee organization.

Unfair labour practices — employer

(2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization,

(ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2,

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iv) has exercised any right under this Part or Part 2;

(b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2; or

(c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

(i) testifying or otherwise participating in a proceeding under this Part or Part 2,

(ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or

(iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

Exception

(3) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) by reason only of

(a) permitting an employee or a representative of an employee organization that is a bargaining agent to confer with the employer or person, as the case may be, during hours of work or to attend to the business of the employee organization during hours of work without any deduction from wages or any deduction of time worked for the employer; or

(b) permitting an employee organization that is a bargaining agent to use the employer’s premises for the purposes of the employee organization.

Exception

(4) The employer or a person does not commit an unfair labour practice under paragraph (1)(b)

(a) if the employer or person is acting in accordance with this Part or a regulation, a collective agreement or an arbitral award; or

(b) by reason only of receiving representations from, or holding discussions with, reprsentatives of an employee organization.

Exception

(5) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) or (b) by reason only that the employer or person expresses their point of view, so long as they do not use coercion, intimidation, threats, promises or undue influence.

Exception

(6) The employer or a person does not commit an unfair labour practice under any of paragraphs (1)(a) or (b) or (2)(a) to (c) by reason only of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

Unfair representation by bargaining agent

187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Unfair labour practices — employee organizations

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

(a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

Unfair labour practices — persons

189. (1) Subject to subsection (2), no person shall seek by intimidation or coercion to compel an employee

(a) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be, a member of an employee organization; or

(b) to refrain from exercising any other right under this Part or Part 2.

Exception

(2) A person does not commit an unfair labour practice referred to in subsection (1) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.


Division 13

Complaints

Complaints

190. (1) The Board must examine and inquire into any complaint made to it that

(a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

(f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

Time for making complaint

(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

Limitation on complaints against employee organizations

(3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

(a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

(b) the employee organization

(i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

(ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

(c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

Exception

(4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

(a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

(b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

Duty and power of the Board

191. (1) Subject to subsection (3), on receipt of a complaint made under subsection 190(1), the Board may assist the parties to the complaint to settle the complaint. If it decides not to do so or if the complaint is not settled within a period that the Board considers to be reasonable in the circumstances, it must determine the complaint.

Refusal to determine complaint involving collective agreement

(2) The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 by the complainant.

Burden of proof

(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

Orders

192. (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:

(a) if the employer has failed to comply with section 107 or 132, an order requiring the employer to pay to any employee compensation not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

(b) if the employer has failed to comply with paragraph 186(2)(a), an order requiring the employer to

(i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged contrary to that paragraph,

(ii) pay to any person affected by that failure compensation in an amount that is not more than, in the Board’s opinion, the remuneration that would, but for that failure, have been paid by the employer to that person, and

(iii) rescind any disciplinary action taken in respect of any person affected by that failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the person by the employer;

(c) if the employer has failed to comply with paragraph 186(2)(c), an order requiring the employer to rescind any action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employer;

(d) if an employee organization has failed to comply with section 187, an order requiring the employee organization to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on any proceeding that the Board considers that the employee organization ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

(e) if an employee organization has failed to comply with paragraph 188(b) or (d), an order requiring the employee organization to reinstate or admit an employee as one of its members; and

(f) if an employee organization has failed to comply with paragraph 188(c), (d) or (e), an order requiring the employee organization to rescind any disciplinary action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employee organization.

Person acting on behalf of employer

(2) If the order is directed to a person who has acted or purported to act on behalf of the employer, the order must also be directed to the Secretary of the Treasury Board in the case of the core public administration and, in the case of a separate agency, to its deputy head.

Person acting on behalf of employee organization

(3) If the order is directed to a person who has acted or purported to act on behalf of an employee organization, the order must also be directed to the chief officer of that employee organization.


Division 14

Prohibitions and Enforcement

Acts of Officers and Representatives of Employee Organizations

Acts deemed to be those of employee organization

193. For the purposes of this Part, an act or thing done or omitted by an officer or representative of an employee organization within the scope of that person’s authority to act on the employee organization’s behalf is deemed to be an act or thing done or omitted by the employee organization.


Prohibitions Relating to Strikes

Declaration or authorization of strike prohibited

194. (1) No employee organization shall declare or authorize a strike in respect of a bargaining unit, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike in respect of a bargaining unit or the participation of employees in such a strike, if

(a) the employee organization has not been certified by the Board as the bargaining agent for the bargaining unit;

(b) a collective agreement applying to the bargaining unit is in force;

(c) no collective agreement is in force, and no notice to bargain collectively has been given, in respect of the bargaining unit;

(d) no collective agreement is in force, and a notice to bargain collectively has been given, in respect of the bargaining unit, and no request for conciliation has been made under section 161;

(e) the process for resolution of a dispute applicable to the bargaining unit is arbitration;

(f) the process for resolution of a dispute applicable to the bargaining unit is conciliation and a notice to enter into an essential services agreement has been given under section 122 by the employer or the employee organization, as bargaining agent for the bargaining unit and no essential services agreement is in force in respect of the bargaining unit;

(g) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a notice to amend an essential services agreement has been given under section 126 by the employer or the employee organization, as bargaining agent for the bargaining unit, and

(i) the essential services agreement has not been amended as a result of that notice, or

(ii) if an application referred to in subsection 127(1) was made by the employer or the employee organization, the application has not been finally disposed of by the Board;

(h) the process for resolution of a dispute in respect of the bargaining unit is conciliation and less than 30 clear days have elapsed since

(i) the date an essential services agreement came into force in respect of the bargaining unit, or

(ii) the date an application referred to in subsection 123(1) made by the employer or the employee organization as bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

(i) the process for resolution of a dispute in respect of the bargaining unit is conciliation and the employer or the employee organization, as bargaining agent for the bargaining unit, has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

(i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

(ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

(j) an essential services agreement binding on the employee organization and the employer has been suspended by order under section 131;

(k) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a public interest commission has not been established to assist the employer and the employee organization, as bargaining agent for the bargainig unit, to enter into or revise a collective agreement, unless the employee organization has been notified under subsection 162(3) that a public interest commission will not be established;

(l) the employee organization, as bargaining agent for the bargaining unit, has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the employee organization to enter into or revise a collective agreement and less than seven clear days have elapsed since the date the notice was given under that subsection;

(m) a public interest commission has been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement and the Chairperson has not yet sent the commission’s report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;

(n) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;

(o) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;

(p) a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer’s last offer;

(q) the employee organization has failed to conduct a secret ballot vote in accordance with section 184; or

(r) the employee organization has conducted a secret ballot vote in accordance with section 184 and

(i) it has not received the approval of a majority of the employees who voted, or

(ii) if it has received the approval of a majority of the employees who voted, more than 60 clear days, or any longer period that may be agreed to in writing by the employee organization and the employer, have elapsed since the vote was held.

Essential services

(2) No employee organization shall declare or authorize a strike the effect of which is or would be to involve the participation of any employee who occupies a position that is necessary under an essential services agreement for the employer to provide essential services, and no officer or representative of an employee organization shall counsel or procure the participation of such employees in a strike.

Non-employees

195. No person employed in the public service shall participate in a strike if the person is not an employee.

Participation prohibited

196. No employee shall participate in a strike if the employee

(a) is not included in a bargaining unit for which a bargaining agent has been certified by the Board;

(b) is included in a bargaining unit in respect of which a collective agreement is in force;

(c) is included in a bargaining unit in respect of which no collective agreement is in force and for which no notice to bargain collectively has been given;

(d) is included in a bargaining unit in respect of which no collective agreement is in force and for which a notice to bargain collectively has been given and in respect of which no request for conciliation has been made under section 161;

(e) is included in a bargaining unit for which the process for resolution of a dispute is arbitration;

(f) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to enter into an essential services agreement has been given under section 122 by the employer or the bargaining agent for the bargaining unit, and no essential services agreement is in force in respect of the bargaining unit;

(g) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a notice to amend an essential services agreement has been given under section 126 by the employer or the bargaining agent for the bargaining unit, and

(i) the essential services agreement has not been amended as a result of that notice, or

(ii) if an application referred to in subsection 127(1) was made by the employer or the bargaining agent, the application has not been finally disposed of by the Board;

(h) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and less than 30 clear days have elapsed since

(i) the date an essential services agreement came into force in respect of the bargaining unit, or

(ii) the date an application referred to in subsection 123(1) made by the employer or the bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

(i) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which the employer or the bargaining agent for the bargaining unit has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

(i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

(ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

(j) occupies a position that is necessary under an essential services agreement for the employer to provide essential services;

(k) is included in a bargaining unit in respect of which an essential services agreement binding on the bargaining agent for the bargaining unit and the employer has been suspended by order under section 131;

(l) is included in a bargaining unit for which the process for resolution of a dispute is conciliation and in respect of which a public interest commission has not been established to assist the employer and the bargaining agent for the bargaining unit to enter into or revise a collective agreement, unless the bargaining agent haseen notified under subsection 162(3) that a public interest commission will not be established;

(m) is included in a bargaining unit in respect of which the bargaining agent for the bargaining unit has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the bargaining agent to enter into or revise a collective agreement and less than seven clear days have elapsed from the date the notice was given under that subsection;

(n) is included in a bargaining unit in respect of which a public interest commission has been established to assist the employer and the bargaining agent for the bargaining unit to enter into or revise a collective agreement, and the Chairperson has not yet sent the commission’s report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;

(o) is included in a bargaining unit whose bargaining agent has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;

(p) is included in a bargaining unit whose bargaining agent has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;

(q) is included in a bargaining unit in respect of which a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer’s last offer;

(r) is included in a bargaining unit whose bargaining agent has failed to conduct a secret ballot vote in accordance with section 184; or

(s) is included in a bargaining unit whose bargaining agent has conducted a secret ballot vote in accordance with section 184 and

(i) the bargaining agent has not received the approval of a majority of the employees who voted, or

(ii) if the bargaining agent has received the approval of a majority of the employees who voted and the bargaining agent has declared or authorized the strike after 60 clear days have elapsed, or after any longer period that may be agreed to in writing by the bargaining agent and the employer has elapsed, since the day the vote was held.

Right to strike limited during period between Parliaments

197. (1) If a strike occurs or may occur during the period beginning on the date of a dissolution of Parliament and ending on the date fixed for the return of the writs at the next following general election and, in the opinion of the Governor in Council, the strike adversely affects or would adversely affect the national interest, the Governor in Council may during that period make an order deferring the strike during the period beginning on the day on which the order is made and ending on the twenty-first day following the date fixed for the return of the writs.

Tabling in Parliament

(2) The Minister must cause a report giving the reasons for the order to be tabled in each House of Parliament within the first 10 days on which that House is sitting after the order is made.

Declaration or authorization of strike prohibited during deferred period

(3) No employee organization shall declare or authorize, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of, a strike in respect of a bargaining unit in the period during which the strike is deferred by an order made under subsection (1).

Participation prohibited during deferred period

(4) No employee shall participate in a strike in the period during which the strike is deferred by an order made under subsection (1).


Declarations and Orders Relating to Strikes

Application for declaration that conduct is unlawful

198. (1) If the employer considers that an employee organization or any officer or representative of one has contravened subsection 194(1) or (2) or 197(3), or that a person has contravened section 195, or that an employee has contravened section 196 or subsection 197(4), the employer may apply to the Board for a declaration that the conduct giving rise to the contravention is unlawful.

Declaration that strike unlawful and strike prohibited

(2) After affording the employee organization, officer, representative, person or employee referred to in subsection (1) an opportunity to make representations on the application, the Board may declare that the conduct is unlawful and, if the employer so requests, may make an order

(a) requiring the employee organization to revoke the declaration or authorization of a strike and to give notice immediately of its revocation to the employees to whom it was directed;

(b) enjoining the officer or representative from counselling or procuring the declaration or authorization of a strike or the participation of employees in a strike;

(c) enjoining the employee from participating in the strike;

(d) requiring the employee to perform the duties of his or her employment; or

(e) requiring any employee organization, of which any employee with respect to whom an order is made under paragraph (c) or (d) is a member, and any officer or representative of that employee organization, to immediately give notice of any order made under one of those paragraphs to the employee.

Terms and duration of order

(3) An order made under subsection (2)

(a) must be in terms that the Board considers necessary and sufficient to meet the circumstances of the case; and

(b) subject to subsection (4), has effect for the time specified in the order.

Continuation or revocation of order

(4) On application by the employer or employee organization or any employee or other person affected by an order made under subsection (2), notice of which has been given to the parties named in the order, the Board may, by supplementary order,

(a) continue the order, with or without modification, for the period stated in the supplementary order; or

(b) revoke the order.


Prohibition Relating to Essential Services

Obstruction

199. No person shall impede or prevent or attempt to impede or prevent an employee from entering or leaving the employee’s place of work if the employee occupies a position that is necessary under an essential services agreement for the employer to provide essential services.


Offences and Punishment

Persons

200. Every person who contravenes subsection 186(1) or (2), section 188, subsection 189(1) or section 195 or 199 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

Employees

201. Every employee who contravenes section 196 or subsection 197(4) is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

Employee organizations

202. (1) Every employee organization that contravenes, and every officer or representative of one who contravenes, section 187 or 188 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

Employee organizations

(2) Every employee organization that contravenes subsection 194(1) or (2) or 197(3) is guilty of an offence and liable on summary conviction to a fine not more than $1,000 for each day that any strike declared or authorized by it in contravention of that subsection is in effect.

Prosecution of employee organization

(3) A prosecution for an offence under subsection (1) or (2) may be brought against an employee organization and in the name of that organization and, for the purposes of the prosecution, the employee organization is deemed to be a person.

Officers and representatives of employee organizations

203. Every officer or representative of an employee organization who contravenes subsection 194(1) is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

Employer

204. If the employer contravenes subsection 186(1) or (2), the employer is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

Consent to prosecution

205. A prosecution for an offence under this Division may be instituted only with the consent of the Board.


Part 2. Grievances

Interpretation

Definitions

206. (1) The following definitions apply in this Part.

“employee”

« fonctionnaire »

“employee” has the meaning that would be assigned by the definition “employee”

in subsection 2(1) if that definition were read without reference to paragraphs (e) and (i) and without reference to the words “except in Part 2”.

“group grievance”

« grief collectif »

“group grievance” means a grievance presented in accordance with section 215.

“individual grievance”

« grief individuel »

“individual grievance” means a grievance presented in accordance with section 208.

“policy grievance”

« grief de principe »

“policy grievance” means a grievance presented in accordance with section 220.

Former employees

(2) Every reference in this Part to an “employee” includes a former employee for the purposes of any provisions of this Part respecting grievances with respect to

(a) any disciplinary action resulting in suspension, or any termination of employment, under paragraph 12(1)(c), (d) or (e) of the Financial Administration Act; or

(b) in the case of a separate agency, any disciplinary action resulting in suspension, or any termination of employment, under paragraph 12(2)(c) or (d) of the Financial Administration Act or under any provision of any Act of Parliament, or any regulation, order or other instrument made under the authority of an Act of Parliament, respecting the powers or functions of the separate agency.


Conflict Management

Informal conflict management system

207. Subject to any policies established by the employer or any directives issued by it, every deputy head in the core public administration must, in consultation with bargaining agents representing employees in the portion of the core public administration for which he or she is deputy head, establish an informal conflict management system and inform the employees in that portion of its availability.


Individual Grievances

Presentation

Right of employee

208. (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award; or

(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.

Limitation

(2) An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

Limitation

(3) Despite subsection (2), an employee may not present an individual grievance in respect of the right to equal pay for work of equal value.

Limitation

(4) An employee may not present an individual grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies.

Limitation

(5) An employee who, in respect of any matter, avails himself or herself of a complaint procedure established by a policy of the employer may not present an individual grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from presenting an individual grievance under this Act.

Limitation

(6) An employee may not present an individual grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

Order to be conclusive proof

(7) For the purposes of subsection (6), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.


Reference to Adjudication

Reference to adjudication

209. (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award;

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee’s consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

Application of paragraph (1)(a)

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

Designation

(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

Notice to Canadian Human Rights Commission

210. (1) When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

Standing of Commission

(2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Exception

211. Nothing in section 209 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

(a) any termination of employment under the Public Service Employment Act; or

(b) any deployment under the Public Service Employment Act, other than the deployment of the employee who presented the grievance.


Representation

Right to be represented by employee organization

212. An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of, and, if the employee chooses, may be represented by, any employee organization in the presentation or reference to adjudication of an individual grievance.

Right to be represented by employee organization

213. No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any other employee organization in the presentation or reference to adjudication of an individual grievance.


Binding Effect

Binding effect

214. If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.


Group Grievances

Presentation

Right of bargaining agent

215. (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

Consent required

(2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations. The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

Single portion

(3) The group grievance must relate to employees in a single portion of the federal public administration.

Limitation

(4) A bargaining agent may not present a group grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.

Limitation

(5) Despite subsection (4), a bargaining agent may not present a group grievance in respect of the right to equal pay for work of equal value.

Limitation

(6) If an employee has, in respect of any matter, availed himself or herself of a complaint procedure established by a policy of the employer, the bargaining agent may not include that employee as one on whose behalf it presents a group grievance in respect of that matter if the policy expressly provides that an employee who avails himself or herself of the complaint procedure is precluded from participating in a group grievance under this Act.

Limitation

(7) A bargaining agent may not present a group grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

Order to be conclusive proof

(8) For the purposes of subsection (7), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.


Reference to Adjudication

Reference to adjudication

216. The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

Notice to Canadian Human Rights Commission

217. (1) When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

Standing of Commission

(2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).


Withdrawal from Group Grievance

Right of employee to withdraw

218. An employee in respect of whom a group grievance has been presented may, at any time before a final decision is made in respect of the grievance, notify the bargaining agent that the employee no longer wishes to be involved in the group grievance.

Effect of notice

219. After receiving the notice, the bargaining agent may not pursue the grievance in respect of the employee.


Policy Grievances

Presentation

Right of employer and bargaining agent

220. (1) If the employer and a bargaining agent are bound by an arbitral award or have entered into a collective agreement, either of them may present a policy grievance to the other in respect of the interpretation or application of the collective agreement or arbitral award as it relates to either of them or to the bargaining unit generally.

Limitation

(2) Neither the employer nor a bargaining agent may present a policy grievance in respect of which an administrative procedure for redress is provided under any other Act of Parliament, other than the Canadian Human Rights Act.

Limitation

(3) Despite subsection (2), neither the employer nor a bargaining agent may present a policy grievance in respect of the right to equal pay for work of equal value.

Limitation

(4) A bargaining agent may not present a policy grievance relating to any action taken under any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

Order to be conclusive proof

(5) For the purposes of subsection (4), an order made by the Governor in Council is conclusive proof of the matters stated in the order in relation to the giving or making of an instruction, a direction or a regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.


Reference to Adjudication

Reference to adjudication

221. A party that presents a policy grievance may refer it to adjudication.

Notice to Canadian Human Rights Commission

222. (1) When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the interpretation or application of the Canadian Human Rights Act, that party must, in accordance with the regulations, give notice of the issue to the Canadian Human Rights Commission.

Standing of Commission

(2) The Canadian Human Rights Commission has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).


Adjudication

Referral by Chairperson

Notice

223. (1) A party who refers a grievance to adjudication must, in accordance with the regulations, give notice of the reference to the Board and specify in the notice whether an adjudicator is named in any applicable collective agreement or has otherwise been selected by the parties and, if no adjudicator is so named or has been selected, whether the party requests the establishment of a board of adjudication.

Action to be taken by Chairperson

(2) On receipt of the notice by the Board, the Chairperson must

(a) if the grievance is one arising out of a collective agreement and an adjudicator is named in the agreement, refer the matter to the adjudicator;

(b) if the parties have selected an adjudicator, refer the matter to the adjudicator;

(c) if a board of adjudication has been requested and the other party has not objected in the time provided for in the regulations, establish the board and refer the matter to it; and

(d) in any other case, refer the matter to an adjudicator designated by the Chairperson from amongst the members of the Board.

Conference

(3) The Chairperson may, at any time after receipt of the notice, direct the parties to attend a conference in order to attempt to settle or simplify the issues in dispute.


Board of Adjudication

Constitution

224. (1) A board of adjudication consists of one member of the Board designated by the Chairperson, who is the chairperson of the board of adjudication, and two other persons, each of whom is nominated by one of the parties.

Ineligibility

(2) A person is not eligible to be a member of a board of adjudication if the person has any direct interest in or connection with the grievance referred to the board of adjudication, its handling or its disposition.


Jurisdiction

Compliance with procedures

225. No grievance may be referred to adjudication, and no adjudicator may hear or render a decision on a grievance, until the grievance has been presented at all required levels in accordance with the applicable grievance process.


Powers

Powers

226. (1) An adjudicator may, in relation to any matter referred to adjudication,

(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;

(b) order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the adjudicator to communicate with each other simultaneously;

(c) administer oaths and solemn affirmations;

(d) accept any evidence, whether admissible in a court of law or not;

(e) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;

(f) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter being adjudicated;

(g) interpret and apply the Canadian Human Rights Act and any other Act of Parliament relating to employment matters, other than the provisions of the Canadian Human Rights Act related to the right to equal pay for work of equal value, whether or not there is a conflict between the Act being interpreted and applied and the collective agreement, if any;

(h) give relief in accordance with paragraph 53(2)(e) or subsection 53(3) of the Canadian Human Rights Act;

(i) award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator considers appropriate; and

(j) summarily dismiss grievances that in the opinion of the adjudicator are frivolous or vexatious.

Power to mediate

(2) At any stage of a proceeding before an adjudicator, the adjudicator may, if the parties agree, assist the parties in resolving the difference at issue without prejudice to the power of the adjudicator to continue the adjudication with respect to the issues that have not been resolved.

Determination without oral hearing

227. An adjudicator may decide any matter referred to adjudication without holding an oral hearing.


Decision of Adjudicator

Hearing of grievance

228. (1) If a grievance is referred to adjudication, the adjudicator must give both parties to the grievance an opportunity to be heard.

Decision on grievance

(2) After considering the grievance, the adjudicator must render a decision and make the order that he or she considers appropriate in the circumstances. The adjudicator must then

(a) send a copy of the order and, if there are written reasons for the decision, a copy of the reasons, to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs; and

(b) deposit a copy of the order and, if there are written reasons for the decision, a copy of the reasons, with the Executive Director of the Board.

Decision of board of adjudication

(3) In the case of a board of adjudication, a decision of a majority of the members on a grievance is deemed to be a decision of the board in respect of the grievance, and the decision must be signed by the chairperson of the board.

Decision where majority cannot agree

(4) If a majority of members of the board of adjudication cannot agree on the making of a decision, the decision of the chairperson of the board is deemed to be the decision of the board.

Decision requiring amendment

229. An adjudicator’s decision may not have the effect of requiring the amendment of a collective agreement or an arbitral award.

Determination of reasonableness of opinion

230. In the case of an employee in the core public administration or an employee of a separate agency designated under subsection 209(3), in making a decision in respect of an employee’s individual grievance relating to a termination of employment or demotion for unsatisfactory performance, an adjudicator must determine the termination or demotion to have been for cause if the opinion of the deputy head that the employee’s performance was unsatisfactory is determined by the adjudicator to have been reasonable.

Determination of consent requirement

231. An adjudicator seized of a grievance referred to in subparagraph 209(1)(c)(ii) may determine any question relating to whether

(a) consent to being deployed was a condition of the employee’s employment; or

(b) the employee harassed another person in the course of the employee’s employment.

Decision in respect of certain policy grievances

232. If a policy grievance relates to a matter that was or could have been the subject of an individual grievance or a group grievance, an adjudicator’s decision in respect of the policy grievance is limited to one or more of the following:

(a) declaring the correct interpretation, application or administration of a collective agreement or an arbitral award;

(b) declaring that the collective agreement or arbitral award has been contravened; and

(c) requiring the employer or bargaining agent, as the case may be, to interpret, apply or administer the collective agreement or arbitral award in a specified manner.

Decisions not to be reviewed by court

233. (1) Every decision of an adjudicator is final and may not be questioned or reviewed in any court.

No review by certiorari, etc.

(2) No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any of the adjudicator’s proceedings under this Part.

Filing of order in Federal Court

234. For the purpose of enforcing an adjudicator’s order, any person who was a party to the proceedings that resulted in the order being made may, after the day provided in the order for compliance or, if no such day is provided for, after 30 days have elapsed since the day the order was made, file in the Federal Court a copy of the order that is certified to be a true copy, and an order so filed becomes an order of that Court and may be enforced as such.


Expenses of Adjudication

Aggrieved employee not represented by agent

235. (1) If an aggrieved employee is not represented in the adjudication by a bargaining agent, the costs of the adjudication are to be borne by the Board.

Aggrieved employee represented by agent

(2) If an aggrieved employee is represented in the adjudication by a bargaining agent, the bargaining agent is liable to pay and must remit to the Board any part of the costs of the adjudication that may be determined by the Executive Director of the Board with the approval of the Board.

Recovery

(3) Any amount that by subsection (2) is payable to the Board by a bargaining agent may be recovered as a debt due to Her Majesty in right of Canada. The bargaining agent is deemed to be a person for the purposes of this subsection.


No Right of Action

Disputes relating to employment

236. (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

Application

(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

Exception

(3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.


Regulations

Regulations

237. (1) The Board may make regulations respecting the processes for dealing with grievances, including regulations concerning

(a) the manner and form of presenting a grievance and, in the case of group grievances, the form of the consent of the employees concerned;

(b) the maximum number of levels in each grievance process;

(c) the manner in which employees are to be advised of the names of the persons whose decision on a grievance constitutes a level in the grievance process, including the final level;

(d) the time within which a grievance may be presented at any level in a grievance process;

(e) the circumstances in which any level below the final level in a grievance process may be eliminated;

(f) the manner in which and the time within which a grievance may be referred to adjudication after it has been presented up to and including the final level in the grievance process;

(g) the establishment of rules of procedure for the hearing of a grievance;

(h) the specification of the time within which and the persons to whom notices and other documents must be sent or given under this Part, and when the notices are deemed to have been sent, given or received; and

(i) the manner of giving notice of an issue to the Canadian Human Rights Commission under this Part.

Application of regulations

(2) Regulations made under subsection (1) respecting individual, group or policy grievances do not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board to the extent that the regulations are inconsistent with any provisions contained in a collective agreement entered into by the bargaining agent and the employer applicable to those employees.

Regulations

238. The Board may make regulations respecting

(a) the manner of giving notice under subsection 223(1) and the time for making objections under paragraph 223(2)(c); and

(b) the manner in which and the time within which boards of adjudication are to be established.


Part 3. Occupational Health And Safety

Interpretation

Meaning of public service

239. In this Part, “public service” has the same meaning as in subsection 11(1) of the Financial Administration Act.


Part II of Canada Labour Code

Application to public service

240. Part II of the Canada Labour Code applies to and in respect of the public service and persons employed in it as if the public service were a federal work, undertaking or business referred to in that Part except that, for the purpose of that application,

(a) any reference in that Part to

(i) “arbitration” is to be read as a reference to adjudication under Part 2,

(ii) the “Board” is to be read as a reference to the Public Service Labour Relations Board,

(iii) a “collective agreement” is to be read as a reference to a collective agreement within the meaning of subsection 2(1),

(iv) “employee” is to be read as a reference to a person employed in the public service, and

(v) a “trade union” is to be read as a reference to an employee organization within the meaning of subsection 2(1);

(b) section 156 of that Act does not apply in respect of the Public Service Labour Relations Board; and

(c) the provisions of this Act apply, with any modifications that the circumstances require, in respect of matters brought before the Public Service Labour Relations Board.


Part 4. General

Defects in Proceedings

Defect in form or irregularity

241. (1) No proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity.

Grievance process

(2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).


Restriction on Admissibility of Evidence

Admissibility

242. Except in the case of a prosecution for perjury,

(a) testimony or proceedings before an arbitration board are not admissible in evidence in any court in Canada; and

(b) reports of a public interest commission, and testimony or proceedings before a public interest commission, are not admissible in evidence in any court in Canada.


Protection

Evidence respecting information obtained

243. Members of the Board, members of arbitration boards, members of public interest commissions, mediators, adjudicators, persons seized of referrals under subsection 182(1), persons employed by the Board and persons engaged under subsection 50(1) are not required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of functions under this Act.

No disclosure of notes and drafts

244. The following may not be disclosed without the consent of the person who made them:

(a) notes or draft orders or decisions of the Board or any of its members or of an adjudicator;

(b) notes or draft reports of a mediator, a public interest commission or a person authorized or designated by the Board to assist in resolving a complaint or issue in dispute before the Board; and

(c) notes or a draft arbitral award of an arbitration board.

Criminal or civil proceedings

245. No criminal or civil proceedings lie against a member of the Board, a member of an arbitration board, a member of a public interest commission, a mediator, an adjudicator, a person seized of a referral under subsection 182(1), a person employed by the Board or a person engaged under subsection 50(1) for anything done, reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function under this Act.


Oaths and Solemn Affirmations

Oath or solemn affirmation

246. Before commencing his or her functions, a person appointed under this Act must take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of .....................


Remuneration and Expenses

Remuneration and expenses

247. (1) Members of arbitration boards, mediators, adjudicators, persons appointed under subsection 53(2) and persons seized of referrals under subsection 182(1) are entitled to be paid the remuneration and expenses that may be fixed by the Governor in Council.

Remuneration and expenses

(2) Members of public interest commissions are entitled to be paid the remuneration and expenses that may be fixed by the Minister.

Party to pay

(3) If a public interest commission consists of three members, the remuneration and expenses to be paid to the member of the commission nominated, or deemed to be nominated, by a party is to be paid by that party.


Witness Fees

Payment of witness fees

248. A person who is summoned by the Board, an arbitration board, a public interest commission or an adjudicator to attend as a witness at any proceeding under this Act is entitled to receive fees and allowances for so attending equal to those to which the person would be entitled if summoned to attend before the Federal Court.


Provision of Facilities and Human Resources

Facilities and human resources

249. The Board must provide members of arbitration boards, members of public interest commissions, mediators, adjudicators and persons seized of referrals under subsection 182(1) with the facilities and human resources that it considers necessary to enable them to carry out their functions under this Act.


Application of Safety or Security Provisions

Application of safety or security provisions

250. (1) Nothing in this Act or any other Act is to be construed as requiring the employer to do or refrain from doing anything that is contrary to any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or of any state allied or associated with Canada.

Order is conclusive proof

(2) For the purposes of subsection (1), an order made by the Governor in Council is conclusive proof of the matters stated in it in relation to the giving or making of any instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.


Annual Report

Obligation to prepare

251. (1) As soon as possible after the end of each fiscal year, the Board must prepare and submit to the Minister a report on the administration of this Act during the year.

Tabling in Parliament

(2) The Minister must cause the report to be tabled in each House of Parliament within the first 15 days on which that House is sitting after he or she receives it.


Five-year Review

Review

252. Five years after the day on which this section comes into force, the minister designated by the Governor in Council for the purposes of this section must cause a review of this Act and its administration and operation to be conducted, and cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.


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