Law:Parliamentary Employment and Staff Relations Act

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R.s.c., 1985, c. 33 (2nd Supp.)

An Act respecting employment and employer and employee relations in the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer and office of the Conflict of Interest and Ethics Commissioner

(1986, c. 41, assented to 27th June, 1986)

Contents

Short Title

Short title

1. This Act may be cited as the Parliamentary Employment and Staff Relations Act.


Application Of Act

Generally

2. Subject to this Act, this Act applies to and in respect of every person employed by, and applies to and in respect of,

(a) the Senate, House of Commons, Library of Parliament, office of the Senate Ethics Officer or office of the Conflict of Interest and Ethics Commissioner, and

(b) a Member of Parliament who, in that capacity, employs that person or has the direction or control of staff employed to provide research or associated services to the caucus members of a political party represented in Parliament,

and, except as provided in this Act, nothing in any other Act of Parliament that provides for matters similar to those provided for under this Act and nothing done thereunder, whether before or after the coming into force of this section, shall apply to or in respect of or have any force or effect in relation to the institutions and persons described in this section.

R.S., 1985, c. 33 (2nd Supp.), s. 2; 2004, c. 7, s. 32; 2006, c. 9, s. 30.

Previous Version

Part I. Staff Relations

Interpretation

Definitions

3. In this Part,

“adjudicator”

« arbitre »

“adjudicator” means, subject to subsection 66(4), a member of the Board assigned to hear and determine a grievance referred to adjudication and includes, where the context permits, a board of adjudication established under section 65 and an adjudicator named in a collective agreement for the purposes of that agreement;

“arbitral award”

« décision arbitrale »

“arbitral award” means an award made by the Board or an arbitrator appointed under section 49 in respect of a dispute;

“bargaining agent”

« agent négociateur »

“bargaining agent” means an employee organization

(a) that has been certified by the Board as bargaining agent for a bargaining unit, and

(b) the certification of which has not been revoked;

“bargaining unit”

« unité de négociation »

“bargaining unit” means a group of two or more employees that is determined, in accordance with this Part, to constitute a unit of employees appropriate for collective bargaining;

“Board”

« Commission »

“Board” means the Public Service Labour Relations Board established under section 12 of the Public Service Labour Relations Act;

“Chairman”(Repealed, 2003, c. 22, s. 182)

“Chairperson”

« président »

“Chairperson” means the Chairperson of the Board.

“collective agreement”

« convention collective »

“collective agreement” means an agreement in writing entered into under this Part between an employer, on the one hand, and a bargaining agent, on the other hand, containing provisions respecting terms and conditions of employment and related matters;

“conciliator”

« conciliateur »

“conciliator” means a person appointed by the Chairperson uder section 40 to assist the parties to collective bargaining in reaching agreement;

“Deputy Chairman”(Repealed, 2003, c. 22, s. 182)

“dispute”

« différend »

“dispute” means a dispute or difference arising in connection with the conclusion, renewal or revision of a collective agreement, in respect of which arbitration is requested pursuant to section 50;

“employee”

« employé »

“employee” means a person employed by an employer, other than

(a) a person appointed by the Governor in Council,

(b) a person not ordinarily required to work more than seven hundred hours in a calendar year or one-third of the normal period for persons doing similar work, whichever is greater,

(c) a person employed on a casual or temporary basis, unless the person has been so employed for a period of six months or more,

(d) a person employed in a managerial or confidential capacity, or

(e) a person excluded from the application of this Part by section 4,

and for the purposes of this definition a person does not cease to be employed by an employer by reason only of the person’s discharge contrary to this Part or any other Act of Parliament;

“employee organization”

« organisation syndicale »

“employee organization” means any organization of employees the purposes of which include the regulation of relations between an employer and its employees for the purposes of this Part and includes, unless the context otherwise requires, a council of employee organizations;

“employer”

« employeur »

“employer” means

(a) the Senate as represented by such committee or person as the Senate by its rules or orders designates for the purposes of this Part,

(b) the House of Commons as represented by such committee or person as the House of Commons by its orders designates for the purposes of this Part,

(c) the Library of Parliament as represented by the Parliamentary Librarian acting, subject to subsection 74(1) of the Parliament of Canada Act, on behalf of both Houses of Parliament,

(d) the office of the Senate Ethics Officer as represented by the Ethics Officer, or

(e) the office of the Conflict of Interest and Ethics Commissioner as represented by the Conflict of Interest and Ethics Commissioner;

“grievance”

« grief »

“grievance” means a complaint in writing presented in accordance with this Part by an employee on his own behalf or on behalf of the employee and one or morether employees, except that

(a) for the purposes of any of the provisions of this Part respecting grievances, a reference to an “employee” includes a person who would be an employee but for the fact that the person is a person employed in a managerial or confidential capacity, and

(b) for the purposes of any of the provisions of this Part respecting grievances with respect to action resulting in termination or suspension, a reference to an “employee” includes a former employee or a person who would be a former employee but for the fact that at the time of the person’s termination or suspension, the person was a person employed in a managerial or confidential capacity;

“member”

« commissaire »

“member”, in respect of a member of the Board, includes a full-time member and a part-time member;

“parties”

« parties »

“parties” means

(a) in relation to collective bargaining, arbitration or a dispute, an employer and a bargaining agent, and

(b) in relation to a grievance, an employer and the employee who presented the grievance;

“person employed in a managerial or confidential capacity”

« personne occupant un poste de direction ou de confiance »

“person employed in a managerial or confidential capacity” means any person who

(a) is employed in a position confidential to the person occupying the recognized position of Speaker of the Senate, Speaker of the House of Commons, Clerk of the Senate, Clerk of the House of Commons, Administrator of the House of Commons, Gentleman Usher of the Black Rod, Sergeant-at-Arms or Law Clerk and Parliamentary Counsel of either House,

(b) is employed as parliamentary counsel in either House or as legal counsel to a committee of either or both Houses, or

(c) is employed by an employer and, in connection with an application for certification of a bargaining agent for a bargaining unit, is designated by the Board, or, in any case where a bargaining agent for a bargaining unit has been certified by the Board, is designated in prescribed manner by the employer or by the Board on objection thereto by the bargaining agent, to be a person

(i) who has executive duties and responsibilities in relation to the development and administration of employer programs,

(ii) whose duties include those of a personnel administrator or who has duties that cause the person to be directly involved in the process of collective bargaining on behalf of the employer,

(iii) who is required by reason of the duties and responsibilities of that person to deal formally on behalf of the employer with a grievance presented in accordance with the grievance process provided by this Part,

(iv) who is employed in a position confidential to any person described in paragraph (b) or subparagraph (i), (ii) or (iii), or

(v) who is not otherwise described in subparagraph (i), (ii), (iii) or (iv) but who, in the opinion of the Board, should not be included in a bargaining unit by reason of his duties and responsibilities to the employer;

class="Ma“prescribed”

« règlement » et « réglementaire »

“prescribed” means prescribed by regulation of the Board;

“strike”

« grève »

“strike” includes a cessation of work or a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down of work or other concerted activity on the part of employees designed to restrict or limit output;

“Vice-Chairman”(Repealed, 2003, c. 22, s. 182)

“Vice-Chairperson”

« vice-président »

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

R.S., 1985, c. 33 (2nd Supp.), s. 3, c. 1 (4th Supp.), s. 31; 1992, c. 1, s. 144(F); 2003, c. 22, ss. 182, 187(E); 2004, c. 7, s. 33; 2006, c. 9, s. 31.

Previous Version

General

Application

Rights, etc., not affected

4. (1) Nothing in this Part abrogates or derogates from any of the privileges, immunities and powers referred to in section 4 of the Parliament of Canada Act.

Non-application to certain persons

(2) This Part does not apply to or in respect of

(a) the staff of any member of the Queen’s Privy Council for Canada holding the office of a minister of the Crown;

(b) the staff of the member of the Senate occupying the recognized position of

(i) Leader of the Government in the Senate,

(ii) Leader of the Opposition in the Senate,

(iii) Government Whip in the Senate, or

(iv) Opposition Whip in the Senate;

(c) the staff of the member of the House of Commons occupying the recognized position of

(i) Leader of the Opposition in the House of Commons,

(ii) Chief Government Whip in the House of Commons, or

(iii) Chief Opposition Whip in the House of Commons;

(d) the staff of the member of the House of Commons occupying the recognized position of Leader or Whip of a party that has a recognized membership of twelve or more persons in the House of Commons;

(e) the staff of any other individual Member of Parliament;

(f) the staff employed to provide research or associated services to the caucus members of a political party represented in Parliament; or

(g) persons employed on a temporary basis by a committee of one or both Houses of Parliament.


Rights

Employment rights

5. (1) The purpose of this Part is to provide to certain persons employed in Parliamentary service collective bargaining and other rights in respect of their employment.

Right of membership in employee organization

(2) Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which the employee is a member.

Right of employer

(3) Nothing in this Part shall be construed to affect the right or authority of an employer to determine the organization of the employer and to assign duties and classify positions of employment.


Prohibitions

Employer participation in employee organization

6. (1) No person who is employed in a managerial or confidential capacity, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.

Discrimination against members and intimidation

(2) Subject to subsection (3), no person shall

(a) refuse to employ, continue to employ or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Part;

(b) impose any condition on an appointment or in a contract of employment, or propose the imposition of any condition on an appointment or in a contract 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

(c) seek by intimidation, by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee

(i) 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

(ii) to refrain from exercising any other right under this Part.

Exception

(3) No person shall be deemed to have contravened subsection (2) by reason of any act or thing done or omitted in relation to a person employed, or proposed to be employed, in a managerial or confidential capacity.

Discrimination against employee organization

7. (1) Except in accordance with this Part or any regulation, collective agreement or arbitral award, no person employed in a managerial or confidential capacity, whether or not the person acts on behalf of an employer, shall discriminate against an employee organization.

Saving provision

(2) Nothing in subsection (1) shall be construed to prevent a person employed in a managerial or confidential capacity from receiving representations from, or holding discussions with, the representatives of any employee organization.

Soliciting membership during working hours

8. Except with the consent of the employer affected, no officer or representative of an employee organization shall attempt, on the employer’s premises during the working hours of an employee, to persuade the employee to become, refrain from becoming, continue to be or to cease to be a member of an employee organization.


Division I

Public Service Labour Relations Board

Public Service Labour Relations Act Provisions

Application of Public Service Labour Relations Act

9. Unless otherwise provided in this Part, the provisions thePublic Service Labour Relations Act respecting the Public Service Labour Relations Board apply also in respect of this Part except that, for the purpose of that application,

(a) a reference to that Act in any of those provisions shall be read as a reference to this Part; and

(b) words and expressions used in those provisions that are defined by this Part shall have the meaning given to them by this Part.

R.S., 1985, c. 33 (2nd Supp.), s. 9; 2003, c. 22, s. 184.

Previous Version

Powers and Duties of the Board

Powers and duties of the Board

10. The Board shall administer this Part and shall exercise such powers and perform such duties as are conferred or imposed on it by, or as may be incidental to the attainment of the purposes of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with this Part, with any regulation made hereunder or with any decision made in respect of a matter coming before it.

Delegation by Board

11. (1) 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 of general application under section 12.

Delegation by Chairperson

(2) 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.

R.S., 1985, c. 33 (2nd Supp.), s. 11; 2003, c. 22, s. 185.

Previous VersionAuthority of Board to make regulations

12. (1) The Board may make regulations of general application respecting

(a) the manner in which persons shall be designated by an employer, or by the Board on objection thereto by a bargaining agent, to be persons described in subparagraphs (c)(i) to (v) of the definition “person employed in a managerial or confidential capacity” in section 3;

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

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

(d) the hearing or determination of any matter relating to or arising out of the revocation of certification of a bargaining agent, including the rights and privileges that have accrued to and are retained by any employee notwithstanding the revocation;

(e) 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 the unit where there is any merger, amalgamation or transfer of jurisdiction between two or more such organizations;

(f) the establishment of rules of procedure for its hearings and those of an adjudicator;

(g) the specification of the time within which and the persons to whom notices and other documents shall be sent and when the notices shall be deemed to have been given and received;

(h) the determination of the form in which, and the time as of which, evidence

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

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

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

shall be presented to the Board on an application for certification of or for revocation of certification of a bargaining agent, and the circumstances in which evidence as to membership of employees in an employee organization may be received by the Board as evidence that the employees wish that employee organization to represent them as their bargaining agent;

(i) the hearing of complaints under section 13;

(j) the authority vested in a council of employee organizations that shall be considered appropriate authority within the meaning of paragraph 19(2)(b); and

(k) such other matters and things as may be incidental or conducive to the objects and purposes of the Board, the exercise of its powers and the attainment of the purpose of this Part.

When regulations effective

(2) Regulations of general application made under subsection (1) have effect on publication in the Canada Gazette.

Complaints

13. (1) The Board shall examine and inquire into any complaint made to it that an employer or an employee organization, or any person acting on behalf of an employer or employee organization, has failed

(a) to observe any prohibition contained in section 6, 7 or 8;

(b) to give effect to any provision of an arbitral award;

(c) to give effect to a decision of an adjudicator with respect to a grievance; or

(d) to comply with any regulation respecting grievances made by the Board pursuant to section 71.

Order of Board directing compliance

(2) Where under subsection (1) the Board determines that any person has failed to observe any prohibition, to give effect to any provision or decision or to comply with any regulation as described in that subsection, it may make an order, addressed to that person, directing the person to observe the prohibition, give effect to the provision or decision or comply with the regulation, as the case may be, or take such action as may be required in that behalf within such specified period as the Board may consider appropriate and,

(a) where that person has acted or purported to act on behalf of an employer, it shall direct its order as well to the employer; and

(b) where that person has acted or purported to act on behalf of an employee organization, it shall direct its order as well to the chief officer of that employee organization.

Where order not complied with

14. Where any order made under section 13 directs some action to be taken and is not complied with within the period specified in the order for the taking of that action, the Board shall cause a copy of its order, a report of the circumstances and all documents relevant thereto to be laid before each House of Parliament within fifteen days after the expiration of the period or, if that House is not then sitting, on any of the first fifteen days next thereafter on which that House is sitting.

Powers of Board in proceedings

15. The Board has, in relation to the hearing or determination of any proceeding before it, power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board deems requisite to the full investigation and consideration of matters within its jurisdiction, in the same manner and to the same extent as a superior court of record;

(b) to administer oaths and solemn affirmations;

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it sees fit, whether admissible in a court of law or not and, without limiting the generality of the foregoing, the Board may refuse to accept any evidence that is not presented in the form and within the time prescribed;

(d) to require an employer to post and keep posted in appropriate places any notices that the Board deems necessary to bring to the attention of any employees any matter or proceeding before the Board;

(e) to enter on the premises of an employer for the purpose of conducting representation votes during working hours; and

(f) to authorize any person to do anything that the Board may do under paragraphs (b) to (e) and to require the person to report to the Board thereon.

Application of orders

16. Where under this Part the Board may make or issue any order or direction, prescribe any term or condition or do any other thing in relation to any person, the Board may do so, either generally or in any particular case or class of cases.

Review or amendment of orders

17. (1) Subject to subsection (2), the Board may review, rescind, amend, alter or vary any decision or order made by it, or may re-hear any application before making an order in respect thereof.

Exception

(2) Any rights acquired by virtue of any decision or order that is reviewed, rescinded, amended, altered or varied pursuant to subsection (1) shall not be altered or extinguished with effect from a day earlier than the day on which the review, rescission, amendment, alteration or variation is made.


Division II

Collective Bargaining and Collective Agreements

Certification of Bargaining Agents

Application for Certification

Application by employee organization

18. An employee organization seeking to be certified as bargaining agent for a group of employees that it considers constitutes a unit of employees appropriate for collective bargaining may, subject to section 21, apply in the manner prescribed to the Board for certification as bargaining agent for the proposed bargaining unit.

Application by council of organizations

19. (1) Where two or more employee organizations have come together to form a council of employee organizations, the council so formed may, subject to section 21, apply in the manner prescribed to the Board for certification as described in section 18.

Conditions for certification of council

(2) The Board may certify a council of employee organizations as bargaining agent for a bargaining unit where the Board is satisfied that

(a) the requirements for certification established by this Part are met; and

(b) 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.

Council deemed to be employee organization

20. A council of employee organizations shall, for all purposes of this Part except subsection 19(2), be deemed to be an employee organization, and membership in any employee organization that is part of a council of employee organizations shall for the same purposes be deemed to be membership in the council.


When Application for Certification may be Made

Where agreement for term of not more than two years

21. (1) Where a collective agreement or an arbitral award is in force and is for a term of not more than two years, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to which the agreement or award applies only after the commencement of the last two months of its operation.

Where agreement for term of more than two years

(2) Where a collective agreement or an arbitral award is in force and is for a term of more than two years, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to which the agreement or award applies only

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

(b) during the two month period immediately preceding the end of each year that the agreement or award continues to operate after the second year of its operation; or

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

Where agreement is for indefinite term

(3) Where a collective agreement referred to in subsection (1) or (2) provides that it will continue to operate after the term specified therein for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the collective agreement, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to whom the collective agreement applies at any time permitted by subsection (1) or (2), as the case may be, or during the two month period immediately preceding the end of each year that the collective agreement continues to operate after the term specified therein.

Where no collective agreement or award in force

(4) Where no collective agreement or arbitral award in respect of a bargaining unit is in force but an employee organization has been certified as bargaining agent for any of the employees in the bargaining unit, an employee organization may, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at an earlier time, apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit.

No certification where previous application refused within six months

22. Where an application for certification of an employee organization as bargaining agent for a proposed bargaining unit has been refused by the Board, the Board shall not certify the employee organization as bargaining agent for the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the Board last refused certification, unless the Board is satisfied that the previous application was refused by reason only of a technical error or omission made in connection therewith.


Determination of Appropriate Bargaining Units

Determination of unit

23. (1) Where an employee organization has made application to the Board for certification as described in section 18, the Board shall determine the relevant group of employees that constitutes a unit appropriate for collective bargaining.

Matters to be taken into account

(2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board shall take into account, having regard to the proper functioning of this Part, the duties and classification of the employees in the proposed bargaining unit in relation to any plan of classification as it may apply to the employees in the proposed bargaining unit.

Composition of bargaining unit

(3) 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 application for certification was made.

Determination of membership in bargaining units

24. Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question.


Certification

Certification of employee organization as bargaining unit

25. Where the Board

(a) has received from an employee organization an application for certification as bargaining agent for a bargaining unit in accordance with this Part,

(b) has determined the group of employees that constitutes a unit appropriate for collective bargaining in accordance with section 23,

(c) is satisfied that a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, and

(d) is satisfied that the persons representing the employee organization in the making of the application have been duly authorized to make the application,

the Board shall, subject to this Part, certify the employee organization making the application as bargaining agent for the employees in that bargaining unit.

Powers of Board in relation to certification

26. (1) For the purpose of enabling the Board to discharge any obligation imposed by section 25 to satisfy itself as to the matters described in paragraphs (c) and (d) of that section, the Board may

(a) examine, in accordance with any regulations that may be made by the Board in that behalf, such evidence as is submitted to it respecting membership of the employees in the proposed bargaining unit in the employee organization seeking certification;

(b) make or cause to be made such examination of records or make such inquiries as it deems necessary; and

(c) examine documents forming or relating to the constitution or articles of association of the employee organization seeking certification.

Representation vote directed to be taken

(2) For the purpose of satisfying itself under paragraph 25(c) that a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, the Board, in its sole discretion, may direct that a representation vote be taken among the employees in the bargaining unit.

Arrangements to be made for representation vote

(3) Where under subsection (2) the Board directs that a representation vote be taken, the Board shall

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

(b) make such arrangements and give such directions as it deems requisite for the proper conduct of the representation vote including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.

(4)�(Repealed, 1993, c. 34, s. 100)

R.S., 1985, c. 33 (2nd Supp.), s. 26; 1993, c. 34, s. 100.


Where Certification Prohibited

Where participation by employer in formation of employee organization

27. (1) The Board shall not certify as bargaining agent for a bargaining unit any employee organization in the formation or administration of which there has been or is, in the opinion of the Board, participation by the employer affected or any person acting on behalf of the employer of such a nature as to impair its fitness to represent the interests of employees in the bargaining unit.

Where money received or paid for activities by political party

(2) The Board shall not certify as bargaining agent for a bargaining unit any employee organization that

(a) receives from any of its members who are employees,

(b) handles or pays in its own name on behalf of members who are employees, or

(c) requires as a condition of membership therein the payment by any of its members of

any money for activities carried on by or on behalf of any political party.

Where discrimination by reason of race, etc.

(3) The Board shall not certify as bargaining agent for a bargaining unit any employee organization that discriminates against any employee because of sex, race, national origin, colour or religion.


Effect of Certification

Effect of certification

28. (1) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit, the employee organization has the exclusive right under this Part

(a) to bargain collectively on behalf of employees in the bargaining unit and to bind them by a collective agreement until its certification in respect of the bargaining unit is revoked; and

(b) to represent, in accordance with this Part, an employee in the presentation or reference to adjudication of a grievance relating to the interpretation or application of a collective agreement or arbitral award applying to the bargaining unit to which the employee belongs.

Effect of certification on previously certified bargaining agent

(2) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit and another employee organization had been previously certified as bargaining agent in respect of employees in the bargaining unit, the certification of the previously certified bargaining agent is thereupon revoked in respect of those employees.

Effect of certification on existing collective agreement or arbitral award

(3) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit and at the time of certification, a collective agreement or arbitral award binding on the employees in the bargaining unit is in force, the employee organization

(a) shall be substituted as a party to the agreement or award in place of the bargaining agent that had been a party thereto; and

(b) may, notwithstanding anything contained in the agreement or award, 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 affected given within one month from the certification.

Rights of previous or new bargaining agent

(4) In any case where subsection (2) or (3) applies, 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 that subsection shall, on application by the employer affected or the previous or the new bargaining agent, be determined by the Board.


Revocations of Certification

On Application

Application for declaration that employee organization no longer represents employees

29. (1) Where a collective agreement or an arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in that bargaining unit may, in accordance with subsection (2), apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees therein.

When application may be made

(2) An application under subsection (1) may be made

(a) where the collective agreement or arbitral award is for a term of not more than two years, only after the commencement of the last two months of its operation;

(b) where the collective agreement or arbitral award is for a term of more than two years, only after the commencement of the twenty-third month of its operation and before the commencement of the twenty-fifth month of its operation, during the two month period immediately preceding the end of each year that it continues to operate after the second year of its operation, or after the commencement of the last two months of its operation, as the case may be; and

(c) where the collective agreement provides that it will continue to operate after the term specified therein for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or with a view to the making of a new collective agreement, at any time permitted by paragraph (a) or (b), as the case may be, or during the two month period immediately preceding the end of each year that the agreement continues to operate after the term specified therein.

Where no collective agreement or award in force

(3) Where no collective agreement or arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in that bargaining unit may, at any time after the expiration of twelve months from the date of certification of the bargaining agent for that bargaining unit, apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees therein.

Taking of representation vote

(4) On an application under subsection (1) or (3), the Board in its sole discretion may direct the taking of a representation vote 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, and in relation to the taking of any such vote the provisions of subsection 26(3) apply.

Revocation of certification of employee organization

(5) After hearing any application under subsection (1) or (3), the Board shall revoke the certification of an employee organization as bargaining agent for a bargaining unit if it is satisfied that a majority of the employees in that bargaining unit no longer wish to be represented by the employee organization.


For Abandonment or Other Cause

Abandonment of certification

30. (1) The Board shall revoke the certification of a bargaining agent where the bargaining agent advises the Board that it wishes to give up or abandon its certification or where the Board, on application by the employer or any employee affected, determines that the bargaining agent has ceased to act as bargaining agent.

Revocation where certification prohibited under s. 27

(2) Where the Board, on application to it by the employer or employee, determines that a bargaining agent would not, if it were an employee organization applying for certification, be certified by the Board by reason of a prohibition contained in section 27, the Board shall revoke the certification of the bargaining agent.


For Fraud

Certification obtained by fraud

31. (1) Where at any time the Board is satisfied that an employee organization has obtained certification as bargaining agent for a bargaining unit by fraud, the Board shall revoke the certification of the employee organization.

Effect of revocation

(2) An employee organization the certification of which is revoked pursuant to subsection (1) is not entitled to claim any right or privilege flowing from that certification, and any collective agreement or arbitral award applying to the bargaining unit for which it was certified, to which the employee organization was a party, is void.


Revocation of Certification of Council

Revocation of certification of council

32. (1) Where an employee organization that is a council of employee organizations has been certified as bargaining agent for a bargaining unit, the Board, on application to it by the employer affected or an employee organization that forms or has formed part of the council, shall revoke the certification of the council where it determines that the council no longer meets the additional requirements for certification required for a council of employee organizations by subsection 19(2) by reason of an alteration in the constituent membership of the council or any other circumstance.

Subsection (1) is in addition to other circumstances

(2) The circumstances set out in subsection (1) shall be in addition to the circumstances in which, pursuant to section 29, 30 or 31, the certification of a bargaining agent may be revoked.


Effect of Revocation: Rights of Employee Organizations and Employees

Effect of revocation

33. Where, at the time the certification of a bargaining agent for a bargaining unit is revoked, a collective agreement or arbitral award binding on the employees in that bargaining unit is in force, the agreement or award shall thereupon cease to be in effect, except where another employee organization is substituted as a party to the agreement or award on the revocation of that certification.

Determination of rights of bargaining agent

34. Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 29, 30 or 32, any question as to any right or duty of that bargaining agent or of any new bargaining agent replacing it shall, on application by either organization, be determined by the Board.

Direction

35. Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 29, 30, 31 or 32 and as a result thereof a collective agreement or arbitral award binding on the employees in the bargaining unit ceases to be in effect or a collective agreement or arbitral award applying to the bargaining unit is void, the Board shall, on application to it by or on behalf of any employee and in accordance with any regulations made by it in respect thereof, direct the manner in which any right acquired by, or determined by the Board to have accrued to, an employee that is affected by the revocation is to be recognized and given effect to.


Successor Rights

Mergers, amalgamations and transfers of jurisdiction

36. Where, on a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations otherwise than as a result of revocation of certification, any question arises concerning the rights, privileges and duties of an employee organization under this Part or under a collective agreement or arbitral award in respect of a bargaining unit or an employee therein, the Board, on application to it by any employee organization affected, shall examine the question and may, in accordance with any regulations made by it in respect thereof, declare or determine what rights, privileges and duties, if any, have been acquired or are retained, as the case may be, by that employee organization.


Negotiation of Collective Agreements

Notice to Bargain Collectively

Notice to bargain collectively

37. (1) Where the Board has certified an employee organization as bargaining agent for a bargaining unit, the bargaining agent, on behalf of the employees in the bargaining unit, may require the employer affected or the employer may require the bargaining agent, by notice in writing given in accordance with subsection (2), to commence bargaining collectively, with a view to the conclusion of a collective agreement.

When notice may be given

(2) Notice to bargain collectively may be given

(a) where 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, at any time; and

(b) where a collective agreement or arbitral award is in force, within the period of two months before the agreement or award ceases to operate.


Where Notice Given

Commencement of collective bargaining

38. Where notice to bargain collectively has been given, the bargaining agent and the officers designated to represent the employer affected shall, without delay, but in any case within twenty days after the notice was given or within such further time as the parties may agree, meet and commence to bargain collectively in good faith and make every reasonable effort to conclude a collective agreement.

Continuation in force of terms and conditions

39. Where notice to bargain collectively has been given, any term or condition of employment applicable to the employees in the bargaining unit in respect of which the notice was given that may be embodied in a collective agreement and that was in force on the day the notice was given shall remain in force and shall be observed by the employer affected, the bargaining agent for the bargaining unit and the employees in the bargaining unit, except as otherwise provided by any agreement in that behalf that may be entered into by the employer and the bargaining agent, until such time as

(a) a collective agreement has been entered into by the parties and no request for arbitration in respect of that term or condition of employment, or in respect of any term or condition of employment proposed to be substituted therefor, has been made in the manner and within the time prescribed therefor by this Part; or

(b) a request for arbitration in respect of that term or condition of employment, or in respect of any term or condition of employment proposed to be substituted therefor, has been made in accordance with this Part and a collective agreement has been entered into or an arbitral award has been rendered in respect thereof.


Conciliation

Request for conciliation

40. Where an employer or a bargaining agent advises the Board by notice in writing of the inability of the parties to reach agreement on any term or condition of employment that may be embodied in a collective agreement and that it desires the assistance of a conciliator in reaching agreement, the Chairperson may appoint a conciliator who shall, forthwith after the appointment, confer with the parties and endeavour to assist them in reaching agreement.

R.S., 1985, c. 33 (2nd Supp.), s. 40; 2003, c. 22, s. 187(E).

Previous VersionReport of conciliator

41. A conciliator shall, within fourteen days from the date of his appointment or within such longer period as the Chairperson may determine, report his success or failure to the Chairperson.

R.S., 1985, c. 33 (2nd Supp.), s. 41; 2003, c. 22, s. 187(E).

Previous Version

Collective Agreements

Authority to Enter into Agreement

Authority of employer

42. An employer may enter into a collective agreement with the bargaining agent for a bargaining unit applicable to employees in that bargaining unit.


Provisions of Collective Agreement

Time within which agreement to be implemented

43. (1) The provisions of a collective agreement shall, subject to the appropriation by or under the authority of Parliament of any moneys that may be required, be implemented by the parties

(a) where a period within which the collective agreement is to be implemented is specified in the collective agreement, within that period; and

(b) where no period for implementation is specified in the collective agreement, within a period of ninety days from the date of its execution or, on application by either party to the agreement, within such longer period as may appear reasonable to the Board.

Term or condition requiring legislative implementation

(2) No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment

(a) the alteration or elimination of which or the establishment of which, as the case may be, would require or have the effect of requiring the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating moneys required for its implementation; or

(b) that has been or after the coming into force of this Part is, as the case may be, established pursuant to the Government Employees Compensation Act or the Public Service Superannuation Act.


Duration and Effect

When agreement effective

44. (1) A collective agreement has effect in respect of a bargaining unit on and after

(a) where an effective date is specified, that day; and

(b) where no effective date is specified, the first day of the month next following the month in which the agreement is executed.

Where no provision as to term of agreement

(2) Where a collective agreement contains no provision as to its term, or is for a term of less than one year, the collective agreement shall be deemed to be for a term of one year from the day on and after which it has effect pursuant to subsection (1).

Saving provision

(3) Nothing in subsection (2) shall be construed as preventing the amendment or revision of any provision of a collective agreement, other than a provision relating to the term of the collective agreement, that, under the agreement, may be amended or revised during the term thereof.

Binding effect of agreement

45. A collective agreement is, subject to and for the purposes of this Part, binding on the employer affected, on the bargaining agent that is a party thereto and its constituent elements, and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and after the day on and after which it has effect pursuant to subsection 44(1).


Division III

Provisions Applicable to Resolution of Disputes

Provisions applicable to resolution of dispute

46. Where an employer and the bargaining agent for a bargaining unit have bargained collectively in good faith with a view to concluding a collective agreement but have failed to reach agreement, sections 50 to 61 apply to the resolution of the dispute.


Arbitration

Board to appoint panels

47. (1) The Board shall appoint two panels, one panel to consist of at least three persons representative of the interests of the employers and the other to consist of at least three persons representative of the interests of employees.

Tenure of members of panels

(2) A member of a panel appointed by the Board under subsection (1) shall be appointed to hold office for such term as the Board considers appropriate.

Eligibility

(3) A person is not eligible to hold office as a member of a panel if the person is not eligible to be a member of the Board or, if the person is a member of the Board, unless the person is a member of the Board pursuant to a selection under section 48.

Board for arbitration

48. (1) In respect of each dispute referred to arbitration, the Board shall be deemed to consist, for the period of the arbitration proceedings and for the purposes of the arbitration only, of a member of the Board and two other persons, one each selected by the Board from each panel appointed under subsection 47(1).

Deemed membership on Board during arbitration proceedings

(2) A person selected by the Board from a panel under subsection (1) shall be deemed to be a member of the Board for the period of the arbitration proceedings in respect of which the person is selected.

Qualifications to serve on Board for arbitration

(3) No person shall act as a member of the Board in respect of a matter referred to arbitration if the person has at any time during the six months immediately preceding the day of the selection of that person under subsection (1) acted in respect of any matter concerning employer-employee relations as solicitor, counsel or agent of the employer affected or of any employee organization that has an interest in the matter referred to arbitration.

Chairperson may appoint outside arbitrator

49. (1) Notwithstanding anything in this Part, if the Chairperson considers it advisable to do so, the Chairperson may appoint an arbitrator in place of the Board in respect of any matters in dispute referred to arbitration under this Part.

Eligibility

(2) A person is not eligible to be appointed as an arbitrator under subsection (1) if the person

(a) is not eligible to be a member of the Board;

(b) is a member of the Board or member of a panel appointed by the Board under subsection 47(1); or

(c) is not eligible under subsection 48(3) to act as a member of the Board in respect of a matter referred to arbitration.

Powers of arbitrator

(3) An arbitrator appointed under this section has all the powers of the Board set out in paragraphs 15(b) to (d).

Sections 52 to 61 apply

(4) Sections 52 to 61 apply, with such modifications as the circumstances require, in respect of matters in dispute referred to an arbitrator appointed under subsection (1).

R.S., 1985, c. 33 (2nd Supp.), s. 49; 2003, c. 22, s. 187(E).

Previous Version

Request for Arbitration

Request for arbitration

50. (1) Where the parties to collective bargaining have bargained collectively in good faith with a view to concluding a collective agreement but have been unable to reach agreement on any term or condition of employment of employees in the relevant bargaining unit that may be embodied in an arbitral award, either party may, by notice in writing to the Secretary of the Board given in accordance with subsection (2), request arbitration in respect of that term or condition of employment.

When notice may be given

(2) The notice referred to in subsection (1) may be given

(a) at any time, where no collective agreement has been entered into by the parties 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 any collective agreement is entered into by the parties, in any other case.

Notice to be given

(3) Where arbitration is requested by notice under subsection (1), the party making the request shall

(a) specify in the notice the terms and conditions of employment in respect of which it requests arbitration and its proposals concerning the award to be made by the Board in respect thereof; and

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

Request for arbitration by other party

51. (1) Where notice under section 50 is received by the Secretary of the Board from any party requesting arbitration, the Secretary shall forthwith send a copy of the notice to the other party, who shall within seven days after receipt thereof advise the Secretary, by notice in writing, of any matter, additional to the matters specified in the notice under section 50, that was a subject of negotiation between the parties during the period before the arbitration was requested but on which the parties were unable to reach agreement and in respect of which, being a matter that may be embodied in an arbitral award, that other party requests arbitration.

Notice to include proposal concerning award

(2) Where arbitration in respect of any matter is requested by notice under subsection (1), the party making the request shall include in the notice its proposal concerning the award to be made by the Board in respect thereof.


Consideration of Dispute and Award

Matters constituting terms of reference

52. (1) Subject to section 55, the matters in dispute specified in the notice under section 50 and in any notice under section 51 constitute the terms of reference of the Board in relation to the request for arbitration and the Board shall, after considering the matters in dispute together with any other matter that the Board considers necessarily incidental to the resolution of the matters in dispute, render an arbitral award in respect thereof.

Where agreement subsequently reached

(2) Where, at any time before an arbitral award is rendered, the parties reach agreement on any matter in dispute referred to the Board under subsection (1) and enter into a collective agreement in respect thereof, the matters in dispute so referred to the Board shall be deemed not to include that matter and no arbitral award shall be rendered by the Board in respect thereof.

Factors to be taken into account by Board

53. In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, the Board shall consider

(a) the needs of the employer affected for qualified employees,

(b) the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations of employees,

(c) the need to establish 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

(d) any other factor that to it appears to be relevant to the matter in dispute,

and, so far as consistent with the requirements of the employer, the Board shall give due regard to maintaining comparability of conditions of employment of employees with those that are applicable to persons in similar employment in the federal public administration.

R.S., 1985, c. 33 (2nd Supp.), s. 53; 2003, c. 22, s. 224(E).

Previous Version53.1 (Repealed, 2003, c. 22, s. 186)

Previous VersionParties to be heard

54. Subject to this Part, the Board shall, before rendering an arbitral award in respect of a matter in dispute, give full opportunity to both parties to present evidence and make submissions to it.


Arbitral Award Matters

Award not to require legislative implementation

55. (1) Subsection 43(2) applies, with such modifications as the circumstances require, in relation to an arbitral award.

Matters not to be dealt with by award

(2) No arbitral award shall deal with the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, transfer, lay-off or release of employees, or with any term or condition of employment of employees that was not a subject of negotiation between the parties during the period before arbitration was requested in respect thereof.

Award to be limited

(3) An arbitral award shall deal only with terms and conditions of employment of employees in the bargaining unit in respect of which the request for arbitration was made.


Making of Arbitral Award

Award to be signed

56. (1) An arbitral award shall be signed by the member of the Board who is not a member selected from a panel appointed under section 47 and copies thereof shall be transmitted to the parties to the dispute and no report or observations thereon shall be made or given by either of the members selected from a panel appointed under section 47.

Decision

(2) Subject to subsection (3), a decision of the majority of the members of the Board in respect of the matters in dispute shall be the arbitral award in respect of the matters in dispute.

Decision where majority cannot agree

(3) Where the majority of the members of the Board in respect of the matters in dispute cannot agree on the terms of the arbitral award to be rendered in respect thereof, the decision of the member of the Board who is not a member selected from a panel appointed under section 47 shall be the arbitral award in respect of the matters in dispute.

Form of award

(4) An arbitral award shall, wherever possible, be made in such form

(a) as will be susceptible of being read and interpreted with, or annexed to and published with, any 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) as will enable its incorporation into and implementation by regulations, by-laws, directives or other instruments that may be required to be made or issued by the employer or the relevant bargaining agent in respect thereof.


Duration and Operation of Arbitral Awards

Binding effect of arbitral award

57. (1) An arbitral award is, subject to and for the purposes of this Part, binding on the employer affected and the bargaining agent that is a party thereto and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and after the day on which the award is rendered or such later day as the Board may determine.

Retroactive application

(2) A provision of an arbitral award made in respect of a term or condition of employment may be retroactive to the extent that it is capable of being retroactively applied, in whole or in part, to a day prior to the day on and after which the arbitral award becomes binding on the parties but not before the day on which notice to bargain collectively was given by either party.

Effect on previous collective agreement or award

(3) Where, in relation to any or all of the provisions of an arbitral award made in respect of terms and conditions of employment, there was previously in effect a collective agreement or arbitral award, the previous collective agreement or the previous arbitral award is displaced, to the extent of any conflict, for the term, determined in accordance with section 58, for which the subsequent award is operative.

Term of arbitral award

58. (1) The Board shall, in respect of every arbitral award, determine and specify therein the term for which the arbitral award is to be operative and, in making its determination, it shall take into account

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

(b) where 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 to the Board appears relevant.

Limitation on term of award

(2) No arbitral award, in the absence of the application thereto of any criterion referred to in paragraph (1)(a) or (b), shall be for a term of less than one year or more than two years from the day on and after which it becomes binding on the parties.


Implementation of Arbitral Awards

Implementation of awards

59. The terms and conditions of employment that are the subject of an arbitral award shall, subject to the appropriation by or under the authority of Parliament of any moneys that may be required therefor, be implemented by the parties within a period of ninety days from the date on and after which it becomes binding on the parties or within such longer period as, on application to the Board by either party, appears reasonable to the Board.


Completion and Variation of Arbitral Awards

Reference back to Board

60. Where in respect of an arbitral award it appears to either of the parties that the Board has failed to deal with any matter in dispute referred to it, that party may, within seven days from the day the award is rendered, refer the matter back to the Board, and the Board shall thereupon deal with the matter.

Authority to amend or vary award

61. The Board may, on application jointly by both parties to an arbitral award, amend, alter or vary any provision of that award where it is made to appear to the Board that the amendment, alteration or variation thereof is warranted, having regard to circumstances that have arisen since the making of the award or of which the Board did not have notice at the time of the making thereof, or having regard to such other circumstances as the Board deems relevant.


Division IV

Grievances

Right to Present Grievances

Right of employee

62. (1) Where any employee feels aggrieved

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

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing 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 the employee’s terms and conditions of employment, other than a provision described in subparagraph (a)(i) or (ii),

the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Part.

Limitation

(2) An employee is not entitled to present any 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.

Right to be represented by employee organization

(3) 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 a grievance.

Idem

(4) 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 employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.


Adjudication of Grievances

Reference to Adjudication

Reference of grievance to adjudication

63. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

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

(b) disciplinary action against the employee resulting in suspension or a financial penalty,

(c) the termination of employment of the employee, other than rejection on probation in respect of an initial appointment,

(d) demotion of the employee,

(e) where the employee has been denied an appointment, the employer’s evaluation of the skill, fitness and ability of the employee with respect to the employee’s qualification for the appointment, or

(f) subject to subsection 5(3), the employer’s classification of the employee,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication.

Approval of bargaining agent

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies signifies in prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

Commencement of certain grievance adjudication

(3) A grievance with respect to a matter referred to in paragraph (1)(f) shall not be adjudicated under this Part unless the circumstances that cause the grievance are in existence after the day that is one year after this Part comes into force.


Appointment of Adjudicators

Members to adjudicate

64. The Board shall assign such members as may be required to hear and adjudicate on grievances referred to adjudication under this Part.


Establishment of a Board of Adjudication

Composition of board of adjudication

65. (1) Where a grievance is referred to a board of adjudication, the board shall be composed of three persons, namely,

(a) a member of the Board, who shall be the chairperson; and

(b) two other persons, one nominated by each party.

Ineligible to be a member

(2) A person is not eligible to be a member of the board of adjudication established under subsection (1) if the person has any direct interest in or connection with the grievance, its handling or its disposition.

R.S., 1985, c. 33 (2nd Supp.), s. 65; 2003, c. 22, s. 187(E).

Previous Version

Duty of the Board

Notice to specify whether adjudicator named, etc.

66. (1) Where a grievance has been referred to adjudication, the aggrieved employee shall, in the manner prescribed, give notice to the Board and shall specify in the notice whether an adjudicator is named in any applicable collective agreement or, if no such adjudicator is named, whether the employee requests the establishment of a board of adjudication.

Action to be taken by Board

(2) Where a grievance has been referred to adjudication and the aggrieved employee has notified the Board as required by subsection (1), the Board shall, in the manner and within the time prescribed,

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

(b) where the establishment of a board of adjudication has been requested by the aggrieved employee and no objection thereto has been made by the employer affected within such time as may be prescribed, establish the board and refer the matter to it; and

(c) in any other case, refer the matter to an adjudicator selected by it.

Adjudication of certain matters

(3) Notwithstanding section 64 and subsections (1) and (2) of this section, where a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f) is referred to adjudication, the adjudication shall be by a single adjudicator selected by

(a) the employee and employer concerned; or

(b) the Chairperson, where the employer and employee are unable to agree on the selection of an adjudicator and either party makes a written request to the Chairperson to select an adjudicator.

Adjudicator re certain matters

(4) A person selected to adjudicate a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f)

(a) shall not be a member of the Board but has, for the purposes of the adjudication, all the powers, rights and privileges of the Board other than the power to make regulations of general application under section 12; and

(b) shall not have any direct interest in or in connection with the grievance, its handling or its disposition.

R.S., 1985, c. 33 (2nd Supp.), s. 66; 2003, c. 22, s. 187(E).

Previous VersionPowers of adjudicator

66.1 An adjudicator has, for the purposes of the adjudication of a grievance respecting a matter referred to in paragraph 63(1)(a), (b) or (c) that is referred to adjudication, the powers that the Board has under section 15, other than paragraph 15(e) or (f), in relation to the hearing or determination of a proceeding before it.

1992, c. 1, s. 111.


Jurisdiction of Adjudicator

Compliance with procedures

67. (1) Subject to any regulation made by the Board under paragraph 71(1)(d), no grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.

Decision requiring amendment

(2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.

Binding effect

(3) Where a grievance has been presented up to and including the final level in the grievance process and is not one that under section 63 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 Part and no further action under this Part may be taken thereon.


Decision of Adjudicator

Hearing of grievance

68. (1) Where a grievance is referred to adjudication, the adjudicator shall give both parties to the grievance an opportunity of being heard.

Decision on grievance

(2) After considering the grievance, the adjudicator shall render a decision thereon and

(a) send a copy thereof 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 decision with the Secretary of the Board.

Decision of board of adjudication

(3) In the case of a board of adjudication, a decision of the majority of the members on a grievance is a decision of the board thereon, and the decision shall be signed by the chairperson of the board.

Implementation of decision by employer

(4) Where a decision on any grievance referred to adjudication requires any action by or on the part of the employer affected thereby, the employer shall take that action.

Action to be taken by employee or bargaining agent

(5) Where a decision on any grievance requires any action by or on the part of an employee or a bargaining agent or both of them, the employee or bargaining agent, or both, as the case may be, shall take that action.

Powers of Board with respect to decision on grievance

(6) The Board may, in accordance with section 13, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

R.S., 1985, c. 33 (2nd Supp.), s. 68; 2003, c. 22, s. 187(E).

Previous Version

Expenses of Adjudication

Where adjudicator named in collective agreement

69. (1) Where an adjudicator is named in a collective agreement, the method of determining the adjudicator’s remuneration and of defraying such expenses as the adjudicator may incur shall be as established in the collective agreement naming the adjudicator, but if the agreement does not specify the method, the named adjudicator’s remuneration and expenses shall be borne equally by the parties.

Where no adjudicator named in agreement

(2) Where a grievance is referred to adjudication but is not referred to an adjudicator named in a collective agreement, and the employee, whose grievance it is, is represented in the adjudication proceedings by the bargaining agent for the bargaining unit to which the employee belongs, the bargaining agent, subject to subsection (3), is liable to pay and shall remit to the Board such part of the costs of the adjudication as may be determined by the Secretary of the Board with the approval of the Board.

Exception

(3) Where a grievance is referred to a board of adjudication, the remuneration and expenses of the nominee of each party shall be borne by the parties respectively.

Recovery

(4) Any amount that by subsection (2) or (3) is payable to the Board by a bargaining agent may be recovered as a debt due to the Crown by the bargaining agent which shall, for the purposes of this subsection, be deemed to be a person.

Adjudicator re certain grievances

(5) Where a grievance respecting a matter referred to in paragraph 63(1)(d), (e) or (f) is referred to adjudication, the adjudicator’s remuneration and expenses shall be borne equally by the parties.


Enforcement of Obligations of Employer and Employee Organizations

Reference by employer or bargaining agent to Board

70. (1) Where an employer and a bargaining agent have executed a collective agreement or are bound by an arbitral award and the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agreement or award, and the obligation, if any, is not one the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the collective agreement or arbitral award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board.

Board shall hear and determine

(2) Where a matter is referred to the Board pursuant to subsection (1), the Board shall hear and determine whether there is an obligation as alleged and whether, if there is, there has been a failure to observe or to carry out the obligation.

Hearing and determination of reference

(3) The Board shall hear and determine any matter referred to it pursuant to subsection (1) as though the matter were a grievance, and subsection 67(2) and sections 68 and 69 apply to the hearing and determination of that matter.


Regulations respecting Grievances

Regulations re procedures for presentation of grievances

71. (1) The Board may make regulations in relation to the procedure for the presenting of grievances, including regulations respecting

(a) the manner and form of presenting a grievance;

(b) the maximum number of levels of officers of the employer to whom grievances may be presented;

(c) the time within which a grievance may be presented up to any level in the grievance process including the final level;

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

(e) in any case of doubt, the circumstances in which any occurrence or matter may be said to constitute a grievance.

Application of regulations

(2) Any regulations made by the Board under subsection (1) in relation to the procedure for the presentation of grievances shall 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 such 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 re adjudication of grievances

(3) The Board may make regulations in relation to the adjudication of grievances, including regulations respecting

(a) 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;

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

(c) the procedure to be followed by adjudicators; and

(d) the form of decisions rendered by adjudicators.

Employer to designate persons at final or any level

(4) For the purposes of any provision of this Part respecting grievances, an employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.


Division V

General

Review of Orders

Orders not subject to review by court

72. (1) Except as provided in this Part, every order, award, direction, decision, declaration or ruling of the Board, an arbitrator appointed under section 49 or an adjudicator is final and shall not be questioned or reviewed in any court.

No review by injunction, etc.

(2) No order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain the Board, an arbitrator appointed under section 49 or an adjudicator in any of the proceedings of the Board, arbitrator or adjudicator.


Offences relating to Strikes

Participation by employee in strike

73. No employee shall participate in a strike.

Declaration or authorization of strike

74. No employee organization shall declare or authorize a strike of employees and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 73.

Offences and punishment; employee

75. (1) Every employee who contravenes section 73 is guilty of an offence and liable on summary conviction to a fine not exceeding one hundred dollars.

Idem; officer or representative

(2) Every officer or representative of an employee organization who contravenes section 74 is guilty of an offence and liable on summary conviction to a fine not exceeding three hundred dollars.

Idem; employee organization

(3) Every employee organization that contravenes section 74 is guilty of an offence and liable on summary conviction to a fine not exceeding one hundred and fifty dollars for each day that any strike declared or authorized by it in contravention of that section is or continues in effect.

Prosecution of employee organization

76. A prosecution for an offence referred to in section 75 may be brought against an employee organization and in the name of that organization, and for the purposes of any such prosecution an employee organization shall be deemed to be a person and any act or thing done or omitted by an officer or representative of an employee organization within the scope of his authority to act on behalf of the employee organization shall be deemed to be an act or thing done or omitted by the employee organization.


Consent to Prosecution

Consent

77. No prosecution arising out of an alleged failure by any person to observe any prohibition contained in section 6, 7 or 8 and no prosecution for an offence referred to in section 75 shall be instituted except with the consent of the Board.


Protection of Members and Staff

Evidence respecting information obtained

78. No member of the Board and no adjudicator, conciliator or officer or employee of or person appointed by the Board and no arbitrator appointed under section 49 shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his duties under this Part.


Witness Fees

Payment of witness fees

79. A person who is summoned by the Board or an arbitrator appointed under section 49 to attend as a witness in any proceedings thereof taken pursuant to this Part and who so attends is entitled to be paid an allowance for expenses determined in accordance with the scale for the time being in force with respect to witnesses in civil suits in the superior court of the province in which the proceedings are being taken.


Oaths and Solemn Affirmations

Oath or solemn affirmation to be taken

80. A person appointed under this Part shall, before entering on his duties, take an oath or solemn affirmation in the form prescribed in the schedule before any person authorized by the Governor in Council to take the oath or solemn affirmation.


Provision of Facilities and Staff

Facilities and staff

81. The Board shall provide an arbitrator appointed under section 49 and an adjudicator with quarters and staff and such other facilities as are necessary to enable the arbitrator or adjudicator to carry out their respective functions under this Part.


Superannuation

Application of Public Service Superannuation Act

82. Unless the Governor in Council otherwise orders in any case or class of cases, a person appointed under this Part shall be deemed not to be employed in the public service for the purposes of the Public Service Superannuation Act.

R.S., 1985, c. 33 (2nd Supp.), s. 82; 2003, c. 22, s. 225(E).

Previous Version

Financial

Expenditures

83. All expenditures required for the purposes of this Part shall, unless otherwise specifically provided for, be paid out of money appropriated by Parliament therefor.


Report to Parliament

Annual report

84. As soon as possible after the end of each year, the Board shall prepare a report on the administration of this Part during that year and shall cause the report to be laid before each House of Parliament on any of the first fifteen days on which that House sits after the report has been prepared.


Part Ii. Standard Hours, Wages, Leave, Etc.

Interpretation

The following provision is not in force.Definition of “employer”

85. In this Part, “employer” means

(a) the Senate as represented by such committee or person as the Senate by its rules or orders designates for the purposes of this Part;

(b) the House of Commons as represented by such committee or person as the House of Commons by its orders designates for the purposes of this Part;

(c) the Library of Parliament as represented by the Parliamentary Librarian acting, subject to subsection 74(1) of the Parliament of Canada Act, on behalf of both Houses of Parliament;

(c.1) the office of the Senate Ethics Officer as represented by the Ethics Officer;

(c.2) the office of the Conflict of Interest and Ethics Commissioner as represented by the Conflict of Interest and Ethics Commissioner; or

(d) a Member of Parliament who, in that capacity, employs any person or has the direction or control of staff employed to provide research or associated services to the caucus members of a political party represented in Parliament.

R.S., 1985, c. 33 (2nd Supp.), s. 85; 2004, c. 7, s. 34; 2006, c. 9, s. 32.

Previous Version

Canada Labour Code (Part III)

The following provision is not in force.Application

86. Part III of the Canada Labour Code applies to and in respect of an employer and persons employed by the employer in the same manner and to the same extent as if the employer were the federal work, undertaking or business and the persons were the employees to and in respect of which the provisions of that Part apply except that, for the purpose of that application, any reference in that Part to

(a) a “collective agreement” shall be read as a reference to a collective agreement within the meaning of section 3 of this Act; and

(b) a “trade union” shall be read as a reference to an employee organization within the meaning of section 3 of this Act.


Part Iii. Occupational Safety And Health

Interpretation

The following provision is not in force.Definition of “employer”

87. In this Part, “employer” has the same meaning as in section 85.


Canada Labour Code (Part II)

The following provision is not in force.Application

88. Part II of the Canada Labour Code applies to and in respect of persons employed by an employer and, to the extent that the employer controls the work place at which the persons are employed, to and in respect of the employer, in the same manner and to the same extent as if the employer were a federal work, undertaking or business and the persons were engaged in employment to and in respect of which the provisions of that Part apply except that, for the purpose of such application,

(a) any reference in that Part to

(i) “arbitration” shall be read as a reference to adjudication within the meaning of Part I of this Act,

(ii) the “Board” and “collective agreement” shall be read as references to those expressions as defined in section 3 of this Act, and

(iii) a “trade union” shall be read as a reference to an employee organization within the meaning of section 3 of this Act;

(b) section 156 of that Part does not apply in respect of the Board in exercising or carrying out its powers, duties and functions in relation to that Part; and

(c) the provisions of Part I of this Act apply, with such modifications as the circumstances require, in respect of matters brought before the Board pursuant to Part II of the Canada Labour Code to the extent necessary to give effect to that purpose.


Coming Into Force

Coming into force

Schedule

(Section 80)

Oath Or Solemn Affirmation Of Fidelity

I, ...................., solemnly and sincerely swear (or affirm) that I will faithfully and honestly and to the best of my skill and knowledge fulfil the duties which devolve upon me under Part I of the Parliamentary Employment and Staff Relations Act by reason of my duties as .....................


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