Canada: Labour Law - Federal

Last Updated: December 19 2014
Practice Guide by Blaney McMurtry LLP
CANADA Canada Labour Code, RSC 1985, c L-2, s 9
Certification/De-certification Certification:

A trade union seeking to be certified as the bargaining agent for a unit that the trade unit considers constitutes a unit appropriate for collective bargaining may, subject to regulation, apply to the Board for certification as the bargaining agent for the unit 24(1)

24(2)
Application may be made where:
  • No collective agreement applicable to the unit is in force and no trade union has been certified as the bargaining agent for the unit, at any time
  • No collective agreement applicable to the unit is in force but a trade unit has been certified under this Part as the bargaining agent for the unit, after the expiration of twelve months from the date of that certification or, with Board consent, any earlier time
  • A collective agreement applicable to the unit is in force and is for a term not more than three years, only after the commencement of the last three months of its operation;
No application is allowed during a strike or lockout that involves employees in the unit 24(3)

Statutory Freeze Provisions:
No terms or conditions of employment may be changed following application for certification until (i) the application has been withdrawn or dismissed, or (ii) thirty days have elapsed after the day on which the Board certifies the trade union as bargaining agent for the unit 24(4)

Employer Support:
Certification barred where the Board is satisfied that a trade union is so dominated or influenced by an employer that the fitness of the trade union to represent employees for the purpose of collective bargaining is impaired 25(1)

Appropriate Bargaining Unit:
Board to determine whether a trade union is an appropriate unit for collective bargaining 27(1) The Board shall certify a trade union where: (i) it has received from a trade union an application for certification, (ii) has determined that the unit constitutes a unit appropriate for collective bargaining, and (iii) is satisfied that, as of the date of the filing of the application or such other date as the Board deems appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent 28

Representative Vote:
Board may order that a representation vote be taken among the employees of a unit 29(1)

Just Cause Dismissal:
Employer must not dismiss any unit member without just cause during the period between the date of certification and the date of the coming into force of the first collective agreement 36.1(1)

De-certification:
Where a trade union has been certified, any employee who claims to represent a majority of the employees in the unit may apply to the Board for an order revoking certification of that trade union 38(1)

Except with the consent of the Board, there may be no application for revocation of certification in respect of the bargaining agent for employees in a bargaining unit during a strike or lockout of those employees 38(5)
Collective Bargaining Rules Where the Board has certified a bargaining agent for a bargaining unit and no collective agreement is in force, the bargaining agent may, by notice, require the employer, or the employer may, by notice, require the bargaining agent to commence collective bargaining for the purpose of entering into a collective agreement 48

Obligation to Bargain in Good Faith:
Where notice has been given, the bargaining agent and the employer shall, within twenty days after the notice was given, (i) meet and commence to bargain collectively and in good faith, and (ii) make every reasonable effort to enter into a collective agreement; during this time the employer shall not alter the rates of pay or any other term or condition of employment or any right or privilege until the requirements of paragraphs 89)1(a)-(d) have been met, unless the bargaining agent consents to such alteration 50

Term of Agreement:
Where a collective agreement contains no 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 67(1)
Dispute Resolution in Collective Agreements Every collective agreement must contain a provision for final settlement without a work stoppage 57(1)

Where any difference arises between the parties to a collective agreement that does not contain a provision for final settlement, the matter is to be submitted by the parties for final settlement to (a) an arbitrator selected by the parties, and (b) where the parties are unable to agree, an arbitrator appointed by the Minister 57(2)

Where a matter is submitted to an arbitration board, the decision of a majority of those comprising the board is the decision of the board, but if a majority of those comprising the board cannot agree on a decision, the decision of the chairperson of the board is the decision of the board 62

60
Arbitrator may:
  • Interpret, apply and give relief in accordance with a statute relating to employment matters
  • Make the interim orders that it or the arbitration board considers appropriate
  • Consider submissions provided in the form that it considers appropriate
  • Expedite proceedings and to prevent abuse of the arbitration process by making the order or giving the directions that it considers appropriate
  • Determine any question as to whether a matter before it is arbitrable
  • Extend the time for taking any step in the grievance process or arbitration procedure
  • May, at any stage of a proceeding before it, assist the parties in resolving the difference at issue
Every decision of an arbitrator or an arbitration board shall be made within 60 days of their appointment unless the collective agreement provides otherwise or the parties agree otherwise, or, owing to circumstances beyond the control of the arbitrator or arbitration board, it is not practicable to make or give the order or decision within those 60 days 64(1)
Conciliation Where a notice to commence collective bargaining has been given, either party may inform the minister, by sending notice of dispute, of their failure to enter into, renew or revise a collective agreement where (a) collective bargaining has not started within the prescribed period or (b) where the parties have bargained collectively but were unable to reach an agreement 71(1)

Within 15 days of receiving notice of dispute, the Minister shall: (a) appoint a conciliation officer, (b) appoint a conciliation commissioner, (c) establish a conciliation board in accordance with section 82, or (d) notify the parties of the Minister's intention not to appoint any of the above 72(1)

A conciliation officer shall: (a) confer with the parties to the dispute and endeavour to assist them in entering into or revising a collective agreement, and (b) within 14 days after the appointment or within the longer period that may be agreed to by the parties or allowed by the Minister, report to the Minister as to whether or not the officer has succeeded in assisting the parties in entering into or revising a collective agreement 73(2)

A conciliation commission or conciliation board shall: (a) immediately endeavour to assist the parties to the dispute in entering into or revising a collective agreement, and (b) within 14 days of appointment, or within the longer period that may be agreed to by the parties or allowed by the Minister, report to the Minister as to the commissioner's or board's success or failure in assisting the parties to the dispute and as to their findings and recommendations 74(2)

Where a conciliation commissioner or conciliation board has been appointed or established in respect of a dispute, the parties, at any time before the report of the conciliation commissioner or conciliation board is made, may agree in writing to be bound by the recommendations of the conciliation commissioner or conciliation board and, on their making, shall give effect to those recommendations 78
Strike / Lock-out Procedures Unless a prohibited lockout occurred, trade unions must give employer at least 72 hours' notice of any strike to the employer and must provide a copy of the notice to the Minister 87.2(1)

Unless a prohibited strike occurred, employers must give at least 72 hours' notice of any lockout to the trade union and must provide a copy of the notice to the Minister 87.2(2)

Where no strike or lockout occurs on date listed in notice, new notice must be provided 87.2(3)

Unless a prohibited lockout occurred, no trade union may declare or authorize a strike without first holding, within sixty days or any longer period agreed to between the trade union and employer, a secret ballot vote among the employees in the unit and received approval of the majority of the employees who vote 87.3(1)

Unless a prohibited strike occurred, no employers' union may declare a lockout without first holding, within sixty days or any longer period agreed to between the parties, a secret ballot vote among the employers who are members of the organization and received the approval of the majority of the employers who voted 87.3(2)

Either an employer or employee may, within 10 days after the announcement of the results of the vote, make an application to the Board to have the vote declared invalid 87.3(5)

During a strike or lockout, employers and trade union employees must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to public health or safety 87.4(1)

Employer must reinstate employees in the bargaining unit at the end of the strike or lockout in preference to any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the unit on strike or locked out 87.6

Strikes and lockouts are prohibited during the term of a collective agreement unless (a) a notice to bargain collectively has been given, or (b) the requirements of subsection 89(1) have been met

89(1) The following requirements must be met before a strike or lockout may be declared:
  • Notice to bargain collectively must be given, and either the employer or trade union (a) failed to bargain collectively in time, or (b) they have bargained collectively but have failed to enter into or revise a collective agreement
  • The Minister has received notice pursuant to the conciliation requirements
  • 21 days have passed since the Minister, made an order with respect to the appointment of a conciliation officer or commissioner, or to establish a conciliation board, and released a copy of the report
  • The Board has determined any applications referred to it, and sections 87.2 and 87.3 have been complied with
Unfair Labour Practices No employer or person acting on behalf of an employer shall (a) participate or interfere with the formation or administration of a trade union, or (b) contribute financial or other support to a trade union 94(1)

No employer shall use the services of a person who was not an employee in the bargaining unit on the date that notice to collectively bargain was given to perform the duties of an employee in the bargaining unit who is on strike or locked out 94(2.1)

94(3)
Employers may not:
  • Refuse to employ, suspend, transfer, lay off or otherwise discriminate any person with respect to employment because that person (i) is or proposes to become a member of a trade union, (ii) has been expelled from a trade union, (iii) has testified in a labour proceeding, (iv) made disclosure that they may be required to make in a proceeding, (v) made an application or filed a complaint with the Board or Minister, (vi) has participated in a strike or exercised any rights under this Part
  • Impose any conditions in an employment contract that restrains an employee from exercising any right under this Part
  • Suspend, discharge or impose any financial penalty on an employee for refusing to perform all or some duties of another employee who is participating in a strike or lockout
  • Deny any employee any pension rights or benefits that they would be entitled to but for the disruption caused by a strike or lockout
  • Cancel or threaten to cancel any benefits
  • Seek, by intimidation, to compel a person to refrain from becoming or cease to be a member or representative of any trade union
  • Bargain collectively for the purpose of entering into a collective agreement with a trade union if another trade union is the bargaining agent for that bargaining unit
95 Trade unions may not:
  • Seek to compel an employer to bargain collectively if the trade union is not the proper bargaining agent for the bargaining unit
  • Participate or interfere with the formation or administration of an employers' organization
  • Except with employer consent, attempt, at an employee's place of employment during working hours, to persuade the employee to become, to refrain from becoming or to cease to be a member of a trade union
  • Require an employer to terminate the employment of an employee because that employee has been expelled from the trade union for any reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the trade union as a condition of acquiring or retaining membership in the trade union
  • Discriminate against a person with respect to employment, or intimidate or coerce a person or impose a financial or other penalty on a person because that person (i) has testified or otherwise participated or may testify or otherwise participate in a proceeding under this part, (ii) has made or is about to make a disclosure with respect to a proceeding, or (iii) has filed a complaint under this part
Statutory Tribunal Canada Industrial Relations Board (CIRB)

Appointment:
Appointed by Governor in Council 10(1).

Removal of Chair or Member: 12.06
Chair may request Minister to decide but case law indicates not done without inquiry.

Appointment of Inquirer:
On recommendation of Minister of Justice, Governor in Council may appoint Judge of Superior Court to conduct an inquiry with powers of superior court 12.09

Powers of CIRB:
The Board, or any member or employee of the Board so designated may, if the parties agree, assist the parties in resolving any issues in dispute at any stage and by any means the Board considers appropriate 15.1(1)

16
The Board may:
  • Summon and enforce the attendance of witnesses and compel them to give oral or written evidence, produce documents, and comply any investigation or proceeding within the Board's jurisdiction;
  • Administer oaths and solemn affirmations;
  • Receive evidence on oath, affidavit or otherwise as the Board sees fit, whether admissible in a court of law or not;
  • Examine evidence with respect to the membership of any employees in a trade union seeking certification
  • Examine documents forming or relating to the constitution or articles of association of a trade union, council of trade unions or any trade union forming part of a council of trade unions that is seeking certification;
  • Order the examination of records and make such inquiries as it deems necessary;
  • Compel, at any stage of a proceeding, any person to provide or produce the documents and things relevant to a matter before it;
  • Require an employer to post or transmit by electronic means any notice that it considers necessary to bring to the attention of any employees any matter relating to the proceeding;
  • Subject to certain limitations, enter any premises of an employer where work is being or has been done by employees and inspect and view any work, material, machinery, appliances or articles therein and interrogate any person respecting any matter that is before the Board in the proceeding;
  • Order, at any time before the disposition of a proceeding, that (i) a representation vote be taken among employees affected by the proceeding, and (ii) the ballots cast in any representation vote be sealed in ballot boxes and not counted except as directed by the Board;
  • Enter the premises of an employer for the purpose of conducting representation votes during working hours
  • Defer deciding any matter, where the Board considers that the matter could be resolved by arbitration or an alternate method of resolution;
  • Amend or permit the amendment of any document filed in connection with a proceeding;
  • Add a party to the proceeding at any stage of the proceeding
  • Summarily refuse to hear, or dismiss, a matter for want of jurisdiction or lack of evidence;
  • To decide any question as to whether:

    • A person is an employer or employee
    • A persons performs management functions or is employed in a confidential capacity
    • A person is a member of a trade union
    • An organization or association is an employers' organization, a trade union or a council of trade unions,
    • A group of employees is a unit appropriate for collective bargaining
    • A collective agreement has been entered into
The Board may also:
  • Decide any matter before it without holding an oral hearing 16.1
  • Determine the wishes of the majority of the employees in a unit 17
  • Review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application 18
  • Review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining 18.1
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

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