Short Title

Marginal note:Short title

1 This Act may be cited as the Canada Labour Code.

Interpretation

Marginal note:Definitions

2 In this Act,

federal work, undertaking or business

federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,

• (a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,

• (b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,

• (c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,

• (d) a ferry between any province and any other province or between any province and any country other than Canada,

• (e) aerodromes, aircraft or a line of air transportation,

• (f) a radio broadcasting station,

• (g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,

• (h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,

• (i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and

• (j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act; (entreprises fédérales)

Minister

Minister means the Minister of Labour. (ministre)

PART IIndustrial Relations

Preamble 

 WHEREAS there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;

AND WHEREAS Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;

AND WHEREAS the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize and has assumed international reporting responsibilities in this regard;

AND WHEREAS the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices, and deems the development of good industrial relations to be in the best interests of Canada in ensuring a just share of the fruits of progress to all;

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

Interpretation

Marginal note:Definitions

• 3 (1) In this Part,

  arbitration board

  conseil d’arbitrage

  arbitration board means an arbitration board constituted by or pursuant to a collective agreement or by agreement between the parties to a collective agreement and includes an arbitration board the chairperson of which is appointed by the Minister under this Part; (conseil d’arbitrage)

  arbitrator

  arbitre

  arbitrator means a sole arbitrator selected by the parties to a collective agreement or appointed by the Minister under this Part; (arbitre)

  bargaining agent

  agent négociateur

  bargaining agent means

  • (a) a trade union that has been certified by the Board as the bargaining agent for the employees in a bargaining unit and the certification of which has not been revoked, or

  • (b) any other trade union that has entered into a collective agreement on behalf of the employees in a bargaining unit

    • (i) the term of which has not expired, or

    • (ii) in respect of which the trade union has, by notice given pursuant to subsection 49(1), required the employer to commence collective bargaining; (agent négociateur)

  bargaining unit

  unité de négociation

  bargaining unit means a unit

  • (a) determined by the Board to be appropriate for collective bargaining, or

  • (b) to which a collective agreement applies; (unité de négociation)

  Board

  Conseil

  Board means the Canada Industrial Relations Board established by section 9; (Conseil)

  collective agreement

  convention collective

  collective agreement means an agreement in writing entered into between an employer and a bargaining agent containing provisions respecting terms and conditions of employment and related matters; (convention collective)

  conciliation board

  commission de conciliation

  conciliation board means a board established by the Minister under paragraph 72(1)(c); (commission de conciliation)

  conciliation commissioner

  commissaire-conciliateur

  conciliation commissioner means a person appointed by the Minister under paragraph 72(1)(b); (commissaire-conciliateur)

  conciliation officer

  conciliateur

  conciliation officer means a person appointed by the Minister under paragraph 72(1)(a); (conciliateur)

  dependent contractor

  entrepreneur dépendant

  dependent contractor means

  • (a) the owner, purchaser or lessee of a vehicle used for hauling, other than on rails or tracks, livestock, liquids, goods, merchandise or other materials, who is a party to a contract, oral or in writing, under the terms of which they are

    • (i) required to provide the vehicle by means of which they perform the contract and to operate the vehicle in accordance with the contract, and

    • (ii) entitled to retain for their own use from time to time any sum of money that remains after the cost of their performance of the contract is deducted from the amount they are paid, in accordance with the contract, for that performance,

  • (b) a fisher who, pursuant to an arrangement to which the fisher is a party, is entitled to a percentage or other part of the proceeds of a joint fishing venture in which the fisher participates with other persons, and

  • (c) any other person who, whether or not employed under a contract of employment, performs work or services for another person on such terms and conditions that they are, in relation to that other person, in a position of economic dependence on, and under an obligation to perform duties for, that other person; (entrepreneur dépendant)

  dispute

  différend

  dispute means a dispute arising in connection with the entering into, renewing or revising of a collective agreement, in respect of which notice may be given to the Minister under section 71; (différend)

  employee

  employé

  employee means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations; (employé)

  employer

  employeur

  employer means

  • (a) any person who employs one or more employees, and

  • (b) in respect of a dependent contractor, such person as, in the opinion of the Board, has a relationship with the dependent contractor to such extent that the arrangement that governs the performance of services by the dependent contractor for that person can be the subject of collective bargaining; (employeur)

  employers’ organization

  organisation patronale

  employers’ organization means any organization of employers the purposes of which include the regulation of relations between employers and employees; (organisation patronale)

  lockout

  lock-out

  lockout includes the closing of a place of employment, a suspension of work by an employer or a refusal by an employer to continue to employ a number of their employees, done to compel their employees, or to aid another employer to compel that other employer’s employees, to agree to terms or conditions of employment; (lock-out)

  parties

  parties

  parties means

  • (a) in relation to the entering into, renewing or revising of a collective agreement and in relation to a dispute, the employer and the bargaining agent that acts on behalf of the employer’s employees,

  • (b) in relation to a difference relating to the interpretation, application, administration or alleged contravention of a collective agreement, the employer and the bargaining agent, and

  • (c) in relation to a complaint to the Board under this Part, the complainant and any person or organization against whom or which the complaint is made; (parties)

  private constable

  agent de police privé

  private constable means a person appointed as a constable under Part III of the Canada Transportation Act; (agent de police privé)

  professional employee

  membre de profession libérale

  professional employee means an employee who

  • (a) is, in the course of their employment, engaged in the application of specialized knowledge ordinarily acquired by a course of instruction and study resulting in graduation from a university or similar institution, and

  • (b) is, or is eligible to be, a member of a professional organization that is authorized by statute to establish the qualifications for membership in the organization; (membre de profession libérale)

  strike

  grève

  strike includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slowdown of work or other concerted activity on the part of employees in relation to their work that is designed to restrict or limit output; (grève)

  trade union

  syndicat

  trade union means any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees; (syndicat)

  unit

  unité

  unit means a group of two or more employees. (unité)

• Marginal note:Employee status preserved

  (2) No person ceases to be an employee within the meaning of this Part by reason only of their ceasing to work as the result of a lockout or strike or by reason only of their dismissal contrary to this Part.

Application

Marginal note:Application of Part

4 This Part applies in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business, in respect of the employers of all such employees in their relations with those employees and in respect of trade unions and employers’ organizations composed of those employees or employers.

Marginal note:Crown corporations

• 5 (1) This Part applies in respect of any corporation established to perform any function or duty on behalf of the Government of Canada and in respect of the employees of any such corporation, except any such corporation, and the employees thereof, that the Governor in Council excludes from the operation of this Part.

• Marginal note:Limitation

  (2) The Governor in Council may, pursuant to subsection (1), exclude from the operation of this Part only those corporations in respect of which a minister of the Crown, the Treasury Board or the Governor in Council is authorized to establish or to approve some or all of the terms and conditions of employment of persons employed therein.

• Marginal note:Idem

  (3) Where the Governor in Council excludes any corporation from the operation of this Part, the Governor in Council shall, by order, add the name of that corporation to Part I or II of Schedule I to the Public Service Staff Relations Act.

Marginal note:Canadian carriers

5.1 This Part applies in respect of any Canadian carrier, as defined in section 2 of the Telecommunications Act, that is an agent of Her Majesty in right of a province and in respect of the employees of the carrier.

Marginal note:Employees of Her Majesty

6 Except as provided by section 5, this Part does not apply in respect of employment by Her Majesty in right of Canada.

Major Projects

Marginal note:Major projects

7 Nothing in this Part shall be construed so as to prevent the establishment of agreements on a project basis and where all the parties in a collective bargaining relationship identify themselves to the Minister as being engaged in a project that the Minister determines to be a major project, the Minister and the Board shall act as expeditiously as possible to facilitate the collective bargaining process involving those parties.

DIVISION IBASIC FREEDOMS

Marginal note:Employee freedoms

• 8 (1) Every employee is free to join the trade union of their choice and to participate in its lawful activities.

• Marginal note:Employer freedoms

  (2) Every employer is free to join the employers’ organization of their choice and to participate in its lawful activities.

DIVISION IICANADA INDUSTRIAL RELATIONS BOARD

Establishment and Organization

Marginal note:Establishment of Board

• 9 (1) A board is established, to be known as the Canada Industrial Relations Board.

• Marginal note:Composition of Board

  (2) The Board is composed of

  • (a) a Chairperson, to hold office on a full-time basis;

  • (b) two or more Vice-Chairpersons, to hold office on a full-time basis, and any other Vice-Chairpersons, to hold office on a part-time basis, that the Governor in Council considers necessary to discharge the responsibilities of the Board;

  • (c) not more than six other members, of which not more than three represent employees, and of which not more than three represent employers, to hold office on a full-time basis;

  • (d) any other part-time members, representing, in equal numbers, employees and employers, that the Governor in Council considers necessary to discharge the responsibilities of the Board; and

  • (e) any other part-time members that the Governor in Council considers necessary to assist the Board in carrying out its functions under Part II.

Marginal note:Appointment of Chairperson and Vice-Chairpersons

• 10 (1) The Chairperson and Vice-Chairpersons of the Board are to be appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for terms not exceeding five years each, subject to removal by the Governor in Council at any time for cause.

• Marginal note:Appointment of other members

  (2) Subject to subsection (3), the members of the Board other than the Chairperson and the Vice-Chairpersons are to be appointed by the Governor in Council on the recommendation of the Minister after consultation by the Minister with the organizations representative of employees or employers that the Minister considers appropriate, to hold office during good behaviour for terms not exceeding three years each, subject to removal by the Governor in Council at any time for cause.

• Marginal note:Exception

  (3) The members of the Board appointed pursuant to paragraph 9(2)(e) are to be appointed by the Governor in Council, on the recommendation of the Minister, to hold office during good behaviour for terms not exceeding three years each, subject to removal by the Governor in Council at any time for cause.

• Marginal note:Requirement for appointment

  (4) The members of the Board must be Canadian citizens or permanent residents within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

• Marginal note:Chairperson and Vice-Chairpersons

  (5) The Chairperson and Vice-Chairpersons must have experience and expertise in industrial relations.

Marginal note:Residence of members

10.1 The full-time members of the Board must reside in the National Capital Region as described in the schedule to the National Capital Act or within the distance from the National Capital Region that is determined by the Governor in Council.

Marginal note:Full-time occupation

• 11 (1) The full-time members of the Board must not hold any other employment or office in respect of which they receive any remuneration.

• Marginal note:Part-time occupation

  (2) A part-time Vice-Chairperson, or a member appointed pursuant to paragraph 9(2)(e), must not hold any other employment or office in respect of which they receive any remuneration and that is inconsistent with their duties under this Act.

Marginal note:Reappointment

• 12 (1) A member of the Board is eligible for reappointment on the expiration of any term of office in the same or another capacity.

• Marginal note:Completion of duties

  (2) Where a member of the Board ceases to be a member of the Board for any reason other than removal, the member may, despite anything in this Part, at the request of the Chairperson, carry out and complete any duties or responsibilities that the member would otherwise have had if the member had not ceased to be a member, in connection with any matter that came before the Board while the member was still a member of the Board and in respect of which there was any proceeding in which the member participated as a member.

Marginal note:Chief executive officer

• 12.01 (1) The Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including

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

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

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

  • (d) the conduct of the work of the Board;

  • (e) the management of the Board’s internal affairs; and

  • (f) the duties of the staff of the Board.

• Marginal note:Delegation

  (2) The Chairperson may delegate to a Vice-Chairperson any of the Chairperson’s powers, duties and functions under subsection (1).

• Marginal note:Delegation to staff member

  (3) The Chairperson may delegate to a member of the staff of the Board any of the Chairperson’s powers, duties and functions under paragraph (1)(e) or (f).

Marginal note:Meetings

• 12.02 (1) The Chairperson convenes and presides over any meeting of the Board concerning the making of regulations under section 15.

• Marginal note:Quorum

  (2) For the purposes of subsection (1), five persons, namely, the Chairperson, two Vice-Chairpersons and two other members representing, respectively, employees and employers, constitute a quorum.

• Marginal note:Equal representation

  (3) At a meeting referred to in subsection (1) at which there is an unequal number of members representing employers and employees, the Chairperson shall designate an equal number of members who are authorized to vote on any matter and who represent employers and employees respectively.

Marginal note:Acting Chairperson

12.03 If the Chairperson of the Board is absent or unable to act or the office of Chairperson is vacant, a Vice-Chairperson designated by the Minister acts as Chairperson for the time being, and a Vice-Chairperson so designated has and may exercise all the powers and perform all the duties and functions of the Chairperson.

Marginal note:Remuneration

• 12.04 (1) The full-time members of the Board shall be paid any remuneration, and the part-time members of the Board and members of the Board carrying out duties and responsibilities under subsection 12(2) shall be paid any fees, that may be fixed by the Governor in Council.

• Marginal note:Travel and living expenses

  (2) The members of the Board are entitled to be paid reasonable travel and living expenses incurred by them in the course of their duties under this Act while absent from, in the case of full-time members, their ordinary place of work and, in the case of part-time members and members carrying out duties and responsibilities under subsection 12(2), their ordinary place of residence.

Marginal note:Compensation

12.05 Each member of the Board is deemed to be an employee for the purposes of the Government Employees Compensation Act and to be employed in the public service of Canada for the purposes of any regulations made under section 9 of the Aeronautics Act.

Marginal note:Inquiries

12.06 The Chairperson may request the Minister to decide whether any member of the Board should be subject to remedial or disciplinary measures for any reason set out in paragraphs 12.14(2)(a) to (d).

Marginal note:Measures

12.07 On receipt of the request, the Minister may take one or more of the following measures:

• (a) obtain, in an informal and expeditious manner, any information that the Minister considers necessary;

• (b) refer the matter for mediation, where the Minister is satisfied that the issues in relation to the request may be appropriately resolved by mediation;

• (c) request the Governor in Council to have an inquiry held under section 12.08; or

• (d) advise the Chairperson that the Minister considers that it is not necessary to take further measures under this section.

Marginal note:Appointment of inquirer

12.08 On receipt of a request referred to in paragraph 12.07(c), the Governor in Council may, on the recommendation of the Minister of Justice, appoint a judge of a superior court to conduct the inquiry.

Marginal note:Powers

12.09 The judge has all the powers, rights and privileges that are vested in a superior court, including the power

• (a) to issue a summons requiring any person to appear at the time and place mentioned in the summons to testify about all matters within that person’s knowledge relative to the inquiry and to produce any document or thing relative to the inquiry; and

• (b) to administer oaths and examine any person on oath.

Marginal note:Staff

12.10 The judge may engage the services of counsel and other persons having technical or specialized knowledge to assist the judge in conducting the inquiry, establish the terms and conditions of their engagement and, with the approval of the Treasury Board, fix and pay their remuneration and expenses.

Marginal note:Inquiry in public

• 12.11 (1) Subject to subsections (2) and (3), an inquiry must be conducted in public.

• Marginal note:Confidentiality of inquiry

  (2) The judge may, on application, take any appropriate measures and make any order that the judge considers necessary to ensure the confidentiality of the inquiry if, after having considered all available alternate measures, the judge is satisfied that

  • (a) there is a real and substantial risk that matters involving public security will be disclosed;

  • (b) there is a real and substantial risk to the fairness of the inquiry such that the need to prevent disclosure outweighs the societal interest that the inquiry be conducted in public; or

  • (c) there is a serious possibility that the life, liberty or security of a person will be endangered.

• Marginal note:Confidentiality of application

  (3) Where the judge considers it appropriate, the judge may take any measures and make any order that the judge considers necessary to ensure the confidentiality of a hearing held in respect of an application under subsection (2).

Marginal note:Rules of evidence

• 12.12 (1) In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented in the proceedings that the judge considers credible or trustworthy in the circumstances of the case.

• Marginal note:Intervenors

  (2) An interested party may, with leave of the judge, intervene in an inquiry on the terms and conditions that the judge considers appropriate.

Marginal note:Right to be heard

12.13 The member who is the subject of the inquiry must be given reasonable notice of the subject-matter of the inquiry and of the time and place of any hearing and must be given an opportunity, in person or by counsel, to be heard at the hearing, to cross-examine witnesses and to present evidence.

Marginal note:Report to Minister

• 12.14 (1) After an inquiry has been completed, the judge shall submit a report containing the judge’s findings and recommendations, if any, to the Minister.

• Marginal note:Recommendations

  (2) The judge may, in the report, recommend that the member be suspended without pay or removed from office or that any other disciplinary measure or any remedial measure be taken if, in the opinion of the judge, the member

  • (a) has become incapacitated from the proper execution of that office by reason of infirmity;

  • (b) has been guilty of misconduct;

  • (c) has failed in the proper execution of that office; or

  • (d) has been placed, by conduct or otherwise, in a position that is incompatible with the due execution of that office.

Marginal note:Transmission of report to Governor in Council

12.15 Where the Minister receives a report of an inquiry in which the judge makes a recommendation, the Minister shall send the report to the Governor in Council, who may, where the Governor in Council considers it appropriate, suspend the member without pay, remove the member from office or impose any other disciplinary measure or any remedial measure.

Marginal note:Head office

13 The head office of the Board must be in the National Capital Region as described in the schedule to the National Capital Act but the Board may establish any other offices elsewhere in Canada that the Chairperson considers necessary for the proper performance of the Board’s mandate.

Marginal note:Staff

13.1 The employees who are necessary for the proper conduct of the work of the Board are to be appointed in accordance with the Public Service Employment Act.

Marginal note:Panels

• 14 (1) Subject to subsection (3), a panel of not less than three members, at least one of whom is the Chairperson or a Vice-Chairperson, may determine any matter that comes before the Board under this Part.

• Marginal note:Equal representation

  (2) Where a panel formed under subsection (1) is composed of one or more members representing employees, an equal number of members representing employers must also form part of the panel and vice versa.

• Marginal note:Exception — single member

  (3) The Chairperson or a Vice-Chairperson may alone determine a matter that comes before the Board under this Part with respect to

  • (a) an uncontested application or question;

  • (b) a question referred to in paragraph 16(p);

  • (c) a complaint made under subsection 97(1) in respect of an alleged contravention of section 37 or 69 or any of paragraphs 95(f) to (i);

  • (d) a request for an extension of time for instituting a proceeding;

  • (e) a preliminary proceeding; or

  • (f) any other matter, if the Chairperson determines that it is appropriate because of the possibility of prejudice to a party, such as undue delay, or if the parties consent to a determination by the Chairperson or a Vice-Chairperson.

• Marginal note:Where Chairperson or Vice-Chairperson determines alone

  (4) A Chairperson or Vice-Chairperson making a determination under subsection (3) is deemed to be a panel for the purposes of this Part.

• Marginal note:Powers, rights and privileges

  (5) A panel has all the powers, rights and privileges that are conferred on the Board by this Part with respect to any matter assigned to the panel under this Part.

• Marginal note:Chairperson of the panel

  (6) The Chairperson is the chairperson of any panel formed under subsection (1) or, where the Chairperson is not a member of the panel, he or she designates a Vice-Chairperson to be the chairperson of the panel.

Marginal note:Continuation of proceeding

14.1 In the event of the death or incapacity of a member of a panel formed under subsection 14(1) who represents either employees or employers, the chairperson of the panel may determine any matter that was before the panel and the chairperson’s decision is deemed to be the decision of the panel.

Marginal note:Decision of panel

• 14.2 (1) A decision made by a majority of the members of a panel or, where there is no majority, by the chairperson of the panel is a decision of the Board.

• Marginal note:Time limit

  (2) The panel must render its decision and give notice of it to the parties no later than ninety days after the day on which it reserved its decision or within any further period that may be determined by the Chairperson.

Powers and Duties

Marginal note:Regulations

15 The Board may make regulations of general application respecting

• (a) the establishment of rules of procedure for its pre-hearing proceedings and hearings;

• (a.1) the use of means of telecommunication that permit the parties and the Board or its members to communicate simultaneously for pre-hearing conferences, hearings and Board meetings;

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

• (c) the certification of trade unions as bargaining agents for bargaining units;

• (d) the conduct of representation votes;

• (e) the specification of the period of time after which the Board may receive an application from a trade union for certification as the bargaining agent for a unit where the Board has refused an application from the trade union for certification in respect of the same or substantially the same unit;

• (f) the specification of the period of time after which the Board may receive an application from an employee for revocation of a trade union’s certification as the bargaining agent for a unit where the Board has refused an application for revocation in respect of the same unit;

• (g) the hearing or determination of any application, complaint, question, dispute or difference that may be made or referred to the Board;

• (g.1) an expeditious procedure and matters that may be determined under that procedure;

• (h) the forms to be used in respect of any proceeding that may come before the Board;

• (i) the time within which and the circumstances under which the Board may exercise its powers under section 18;

• (j) any inquiry that the Board may make under subsection 34(2);

• (k) the form in which and the period during which evidence and information may be presented to the Board in connection with any proceeding that may come before it;

• (l) the specification of the time within which and the parties or persons to whom notices and other documents shall be sent and the circumstances in which such notices or other documents shall be deemed to have been given or received by the Board or any party or person;

• (m) the determination of the form in which and the period during which evidence as to

  • (i) the membership of any employees in a trade union,

  • (ii) any objection by employees to the certification of a trade union, or

  • (iii) any signification by employees that they no longer wish to be represented by a trade union

  shall be presented to the Board on an application made to it pursuant to this Part;

• (n) the criteria for determining whether an employee is a member of a trade union;

• (o) the circumstances in which evidence referred to in paragraph (m) may be received by the Board as evidence that any employees wish or do not wish to have a particular trade union represent them as their bargaining agent, including the circumstances in which the evidence so received by the Board may not be made public by the Board;

• (o.1) the conditions for valid strike or lockout votes;

• (p) the authority of any person to act on behalf of the Board and the matters and things to be done and the action to be taken by that person, including the authority of an employee of the Board to make decisions on uncontested applications or questions; and

• (q) such other matters and things as may be incidental or conducive to the proper performance of the duties of the Board under this Part.

Marginal note:General power to assist parties

• 15.1 (1) The Board, or any member or employee of the Board designated by the Board, may, if the parties agree, assist the parties in resolving any issues in dispute at any stage of a proceeding and by any means that the Board considers appropriate, without prejudice to the Board’s power to determine issues that have not been settled.

• Marginal note:Declaratory opinions

  (2) The Board, on application by an employer or a trade union, may give declaratory opinions.

Marginal note:Powers of Board

16 The Board has, in relation to 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 any matter within its jurisdiction that is before the Board in the proceeding;

• (a.1) to order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the times, dates and places of the hearings for those procedures;

• (a.2) to order that a hearing or a pre-hearing conference be conducted using a means of telecommunication that permits the parties and the Board to communicate with each other simultaneously;

• (b) to administer oaths and solemn affirmations;

• (c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;

• (d) to examine, in accordance with any regulations of the Board, such evidence as is submitted to it respecting the membership of any employees in a trade union seeking certification;

• (e) to examine documents forming or relating to the constitution or articles of association of

  • (i) a trade union or council of trade unions that is seeking certification, or

  • (ii) any trade union forming part of a council of trade unions that is seeking certification;

• (f) to make such examination of records and such inquiries as it deems necessary;

• (f.1) to compel, at any stage of a proceeding, any person to provide information or produce the documents and things that may be relevant to a matter before it, after providing the parties the opportunity to make representations;

• (g) to require an employer to post and keep posted in appropriate places, or to transmit by any electronic means that the Board deems appropriate, any notice that it considers necessary to bring to the attention of any employees any matter relating to the proceeding;

• (h) subject to such limitations as the Governor in Council may, in the interests of defence or security, prescribe by regulation, to enter any premises of an employer where work is being or has been done by employees and to 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;

• (i) to order, at any time before the proceeding has been finally disposed of by the Board, that

  • (i) a representation vote or an additional representation vote be taken among employees affected by the proceeding in any case where the Board considers that the taking of such a vote would assist the Board to decide any question that has arisen or is likely to arise in the proceeding, whether or not such a representation vote is provided for elsewhere in this Part, and

  • (ii) the ballots cast in any representation vote ordered by the Board pursuant to subparagraph (i) or any other provision of this Part be sealed in ballot boxes and not counted except as directed by the Board;

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

• (k) to authorize any person to do anything that the Board may do under paragraphs (a) to (h), (j), or (m) and to report to the Board thereon;

• (l) to adjourn or postpone the proceeding from time to time;

• (l.1) to defer deciding any matter, where the Board considers that the matter could be resolved by arbitration or an alternate method of resolution;

• (m) to abridge or extend the time for doing any act, filing any document or presenting any evidence in connection with a proceeding;

• (m.1) to extend the time limits set out in this Part for instituting a proceeding;

• (n) to amend or permit the amendment of any document filed in connection with the proceeding;

• (o) to add a party to the proceeding at any stage of the proceeding;

• (o.1) to summarily refuse to hear, or dismiss, a matter for want of jurisdiction or lack of evidence; and

• (p) to decide for all purposes of this Part any question that may arise in the proceeding, including, without restricting the generality of the foregoing, any question as to whether

  • (i) a person is an employer or an employee,

  • (ii) a person performs management functions or is employed in a confidential capacity in matters relating to industrial relations,

  • (iii) a person is a member of a trade union,

  • (iv) an organization or association is an employers’ organization, a trade union or a council of trade unions,

  • (v) a group of employees is a unit appropriate for collective bargaining,

  • (vi) a collective agreement has been entered into,

  • (vii) any person or organization is a party to or bound by a collective agreement, and

  • (viii) a collective agreement is in operation.

Marginal note:Determination without oral hearing

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

Marginal note:Determination of the wishes of the majority of the employees

17 Where the Board is required, in connection with any application made under this Part, to determine the wishes of the majority of the employees in a unit, it shall determine those wishes as of the date of the filing of the application or as of such other date as the Board considers appropriate.

Marginal note:Review or amendment of orders

18 The Board may 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.

Marginal note:Review of structure of bargaining units

• 18.1 (1) On application by the employer or a bargaining agent, the Board may review the structure of the bargaining units if it is satisfied that the bargaining units are no longer appropriate for collective bargaining.

• Marginal note:Agreement of parties

  (2) If the Board reviews, pursuant to subsection (1) or section 35 or 45, the structure of the bargaining units, the Board

  • (a) must allow the parties to come to an agreement, within a period that the Board considers reasonable, with respect to the determination of bargaining units and any questions arising from the review; and

  • (b) may make any orders it considers appropriate to implement any agreement.

• Marginal note:Orders

  (3) If the Board is of the opinion that the agreement reached by the parties would not lead to the creation of units appropriate for collective bargaining or if the parties do not agree on certain issues within the period that the Board considers reasonable, the Board determines any question that arises and makes any orders it considers appropriate in the circumstances.

• Marginal note:Content of orders

  (4) For the purposes of subsection (3), the Board may

  • (a) determine which trade union shall be the bargaining agent for the employees in each bargaining unit that results from the review;

  • (b) amend any certification order or description of a bargaining unit contained in any collective agreement;

  • (c) if more than one collective agreement applies to employees in a bargaining unit, decide which collective agreement is in force;

  • (d) amend, to the extent that the Board considers necessary, the provisions of collective agreements respecting expiry dates or seniority rights, or amend other such provisions;

  • (e) if the conditions of paragraphs 89(1)(a) to (d) have been met with respect to some of the employees in a bargaining unit, decide which terms and conditions of employment apply to those employees until the time that a collective agreement becomes applicable to the unit or the conditions of those paragraphs are met with respect to the unit; and

  • (f) authorize a party to a collective agreement to give notice to bargain collectively.

Marginal note:Application of orders

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

Marginal note:Interim orders

19.1 The Board may, on application by a trade union, an employer or an affected employee, make any interim order that the Board considers appropriate for the purpose of ensuring the fulfilment of the objectives of this Part.

Marginal note:Interim decision

• 20 (1) Where, in order to dispose finally of an application or complaint, it is necessary for the Board to determine two or more issues arising therefrom, the Board may, if it is satisfied that it can do so without prejudice to the rights of any party to the proceeding, issue a decision resolving only one or some of those issues and reserve its jurisdiction to dispose of the remaining issues.

• Marginal note:Decision final

  (2) A decision referred to in subsection (1) is, except as stipulated by the Board, final.

• Definition of decision

  (3) In this section, decision includes an order, a determination and a declaration.

Marginal note:Exercise of powers and duties

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

Review and Enforcement of Orders

Marginal note:Orders not to be reviewed by court

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

• Marginal note:Standing of Board

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

• Marginal note:No review by certiorari, etc.

  (2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall

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

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

  on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

Marginal note:Filing of Board’s orders in Federal Court

• 23 (1) The Board shall, on the request in writing of any person or organization affected by any order or decision of the Board, file a copy of the order or decision, exclusive of the reasons therefor, in the Federal Court, unless, in the opinion of the Board,

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

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

• Marginal note:Registration of order and proceedings thereon

  (2) Where the Board files a copy of any order or decision in the Federal Court pursuant to subsection (1), it shall specify in writing to the Court that the copy of the order or decision is filed pursuant to that subsection and, where the Board so specifies, the copy of the order or decision shall be accepted for filing by, and registered in, the Court without further application or other proceeding.

• Marginal note:Effect of registration of order or decision

  (3) When a copy of any order or decision of the Board is registered pursuant to subsection (2), the order or decision has the same force and effect as a judgment obtained in the Federal Court and, subject to this section and the Federal Court Act, all proceedings may be taken thereon by any person or organization affected thereby as if the order or decision were a judgment of that Court.

Marginal note:Filing of orders in provincial superior court

23.1 The Board may, on application by a person or organization affected by an order or decision of the Board, file a copy of the order or decision, exclusive of the reasons for it, in the superior court of a province. Section 23 applies, with the modifications that the circumstances require, to an order or decision filed in such a superior court.

DIVISION IIIACQUISITION AND TERMINATION OF BARGAINING RIGHTS

Application for Certification

Marginal note:Application for certification

• 24 (1) A trade union seeking to be certified as the bargaining agent for a unit that the trade union considers constitutes a unit appropriate for collective bargaining may, subject to this section and any regulations made by the Board under paragraph 15(e), apply to the Board for certification as the bargaining agent for the unit.

• Marginal note:Time of application

  (2) Subject to subsection (3), an application by a trade union for certification as the bargaining agent for a unit may be made

  • (a) where no collective agreement applicable to the unit is in force and no trade union has been certified under this Part as the bargaining agent for the unit, at any time;

  • (b) where no collective agreement applicable to the unit is in force but a trade union 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 the consent of the Board, at any earlier time;

  • (c) where a collective agreement applicable to the unit is in force and is for a term of not more than three years, only after the commencement of the last three months of its operation; and

  • (d) where a collective agreement applicable to the unit is in force and is for a term of more than three years, only after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation and, thereafter, only

    • (i) during the three month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, and

    • (ii) after the commencement of the last three months of its operation.

• Marginal note:No application during strike or lockout

  (3) An application for certification under subsection (2) in respect of a unit must not, except with the consent of the Board, be made during a strike or lockout that is not prohibited by this Part and that involves employees in the unit.

• Marginal note:Terms or conditions of employment not to be changed

  (4) Where an application by a trade union for certification as the bargaining agent for a unit is made in accordance with this section, no employer of employees in the unit shall, after notification that the application has been made, alter the rates of pay, any other term or condition of employment or any right or privilege of such employees until

  • (a) the application has been withdrawn by the trade union or dismissed by the Board, or

  • (b) thirty days have elapsed after the day on which the Board certifies the trade union as the bargaining agent for the unit,

  except pursuant to a collective agreement or with the consent of the Board.

Marginal note:Exception

24.1 A trade union that is not certified but has entered into a collective agreement the term of which has not expired may, despite paragraphs 24(2)(c) and (d), make an application for certification at any time, in respect of the unit to which the collective agreement applies or substantially the same unit.

Marginal note:Where certification prohibited

• 25 (1) Notwithstanding anything in this Part, 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 of the employer for the purpose of collective bargaining is impaired, the Board shall not certify the trade union as the bargaining agent for any unit comprised of employees of the employer and any collective agreement between the trade union and the employer that applies to any such employees shall be deemed not to be a collective agreement for the purposes of this Part.

• Marginal note:Idem

  (2) Notwithstanding anything in this Part, where the Board is satisfied that a trade union denies membership in the trade union to any employee or class of employees in a bargaining unit by virtue of a policy or practice that the trade union applies relating to qualifications for membership in the trade union, the Board shall not certify the trade union as the bargaining agent for the bargaining unit and any collective agreement between the trade union and the employer of the employees in the bargaining unit that applies to the bargaining unit shall be deemed not to be a collective agreement for the purposes of this Part.

Marginal note:Where certification prohibited

26 The Board shall not certify a trade union as, and a trade union shall not act as, the bargaining agent for both a bargaining unit comprised of private constables and a bargaining unit comprised of employees other than private constables if any or all of the employees in both such bargaining units are employed by the same employer.

Determination of Bargaining Units

Marginal note:Determination of appropriate unit

• 27 (1) Where a trade union applies under section 24 for certification as the bargaining agent for a unit that the trade union considers appropriate for collective bargaining, the Board shall determine the unit that, in the opinion of the Board, is appropriate for collective bargaining.

• Marginal note:Idem

  (2) In determining whether a unit constitutes a unit that is appropriate for collective bargaining, the Board may include any employees in or exclude any employees from the unit proposed by the trade union.

• Marginal note:Professional employees

  (3) Where a trade union applies under section 24 for certification as the bargaining agent for a unit comprised of or including professional employees, the Board, subject to subsections (2) and (4), shall determine that the unit appropriate for collective bargaining is a unit comprised of only professional employees, unless such a unit would not otherwise be appropriate for collective bargaining.

• Marginal note:Idem

  (4) In determining that a unit is appropriate for collective bargaining under subsection (3), the Board may include in the unit

  • (a) professional employees of more than one profession; and

  • (b) employees performing the functions, but lacking the qualifications, of a professional employee.

• Marginal note:Supervisory employees

  (5) Where a trade union applies for certification as the bargaining agent for a unit comprised of or including employees whose duties include the supervision of other employees, the Board may, subject to subsection (2), determine that the unit proposed in the application is appropriate for collective bargaining.

• Marginal note:Private constables

  (6) The Board shall not include a private constable in a unit with other employees.

Certification of Bargaining Agents and Related Matters

Marginal note:Duty to certify trade union

28 Where the Board

• (a) has received from a trade union an application for certification as the bargaining agent for a unit,

• (b) has determined the unit that constitutes a unit appropriate for collective bargaining, and

• (c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent,

the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit.

Marginal note:Representation vote

• 29 (1) The Board may, in any case, for the purpose of satisfying itself as to whether employees in a unit wish to have a particular trade union represent them as their bargaining agent, order that a representation vote be taken among the employees in the unit.

• Marginal note:Employees not in a unit

  (1.1) 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 bargaining unit on strike or locked out, is not an employee in the unit.

• Marginal note:Mandatory vote

  (2) Where a trade union applies for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, and the Board is satisfied that not less than thirty-five per cent and not more than fifty per cent of the employees in the unit are members of the trade union, the Board shall order that a representation vote be taken among the employees in the unit.

• Marginal note:Determination of union membership

  (3) Where the Board is satisfied that a trade union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board may disregard those requirements in determining whether a person is a member of a trade union.

Marginal note:Conduct of vote

• 30 (1) Where the Board orders that a representation vote be taken among employees in a unit, the Board shall

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

  • (b) make such arrangements and give such directions as the Board considers necessary 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.

• Marginal note:Choice

  (2) Where the Board orders that a representation vote be taken on an application by a trade union for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, the Board shall include on the ballots a choice whereby an employee may indicate that they do not wish to be represented by any trade union named on the ballots.

• Marginal note:Exception

  (3) Notwithstanding subsection (2), where the employees in a unit have cast ballots in favour of all trade unions involved in a representation vote totalling more than fifty per cent of all the ballots cast but have not given majority support to one trade union in that vote and, as a result, a second or subsequent representation vote is required, the Board shall not be required to include the choice referred to in subsection (2) in the ballots for the second or subsequent vote.

Marginal note:Result of representation vote

• 31 (1) Subject to subsection (2), the Board shall determine the result of a representation vote on the basis of the ballots cast by the majority of employees voting.

• Marginal note:Idem

  (2) Where, on considering the result of a representation vote, the Board determines that less than thirty-five per cent of the employees who are eligible to vote have voted, the Board shall determine that the representation vote is void.

• Marginal note:Idem

  (3) A vote by the majority of the employees voting in a representation vote is evidence that a majority of employees in the unit in respect of which the vote was ordered are of the opinion expressed in the vote of the majority of employees voting.

Marginal note:Council of trade unions

• 32 (1) Where two or more trade unions have formed a council of trade unions, the council so formed may apply to the Board for certification as the bargaining agent for a unit in the same manner as a trade union.

• Marginal note:Certification of council of trade unions

  (2) The Board may certify a council of trade unions as the bargaining agent for a bargaining unit where the Board is satisfied that the requirements for certification prescribed by or pursuant to this Part have been met.

• Marginal note:Membership in council of trade unions

  (3) Membership in any trade union that forms part of a council of trade unions is deemed to be membership in the council of trade unions.

• Marginal note:Council of trade unions bound by collective agreement

  (4) Where a council of trade unions is certified by the Board as the bargaining agent for a bargaining unit,

  • (a) the council of trade unions and each trade union forming the council of trade unions is bound by any collective agreement entered into by the council of trade unions and the employer concerned; and

  • (b) this Part applies, except as otherwise provided, as if the council of trade unions were a trade union.

Marginal note:Designation of employers’ organization

• 33 (1) Where a trade union applies for certification as the bargaining agent for a unit comprised of employees of two or more employers who have formed an employers’ organization, the Board may designate the employers’ organization to be the employer if it is satisfied that each of the employers forming the employers’ organization has granted appropriate authority to the employers’ organization to enable it to discharge the duties and responsibilities of an employer under this Part.

• Marginal note:New members

  (1.1) The Board may, on application by the employers’ organization, include in the designation referred to in subsection (1) any employer that becomes a member of the employers’ organization if it is satisfied that that employer has granted appropriate authority to the employers’ organization to enable the employers’ organization to discharge the duties and responsibilities of an employer and that such an inclusion would ensure the fulfilment of the objectives of this Part.

• Marginal note:Designated employers’ organization deemed to be employer

  (2) Where the Board designates an employers’ organization as an employer pursuant to subsection (1),

  • (a) the employers’ organization and each employer forming the employers’ organization is bound by any collective agreement entered into by the employers’ organization and the trade union concerned; and

  • (b) this Part applies, except as otherwise provided, as if the employers’ organization were an employer.

• Marginal note:Employer ceasing to be member of employers’ organization

  (3) Where an employer ceases to be a member of an employers’ organization or withdraws the authority referred to in subsection (1) or (1.1) that the employer granted to the employers’ organization, the employer

  • (a) continues to be bound by any collective agreement applicable to the employer’s employees that was entered into by the employers’ organization; and

  • (b) may be required to commence collective bargaining in accordance with section 48.

Marginal note:Certification in long-shoring and other industries

• 34 (1) Where employees are employed in

  • (a) the long-shoring industry, or

  • (b) such other industry in such geographic area as may be designated by regulation of the Governor in Council on the recommendation of the Board,

  the Board may determine that the employees of two or more employers actively engaged in the industry in the geographic area constitute a unit appropriate for collective bargaining and may, subject to this Part, certify a trade union as the bargaining agent for the unit.

• Marginal note:Recommendation of Board

  (2) No recommendation under paragraph (1)(b) shall be made by the Board unless, on inquiry, it is satisfied that the employers actively engaged in an industry in a particular geographic area obtain their employees from a group of employees the members of which are employed from time to time by some or all of those employers.

• Marginal note:Representative

  (3) Where the Board, pursuant to subsection (1), certifies a trade union as the bargaining agent for a bargaining unit, the Board shall, by order,

  • (a) require the employers of the employees in the bargaining unit

    • (i) to jointly choose a representative, and

    • (ii) to inform the Board of their choice within the time period specified by the Board; and

  • (b) appoint the representative so chosen as the employer representative for those employers.

• Marginal note:Powers of Board

  (4) Where the employers fail to comply with an order made under paragraph (3)(a), the Board shall, after affording to the employers a reasonable opportunity to make representations, by order, appoint an employer representative of its own choosing.

• Marginal note:New representative

  (4.1) On application by one or more employers of employees in the bargaining unit, the Board may, if it is satisfied that the employer representative is no longer qualified to act in that capacity, revoke the appointment of the employer representative and appoint a new representative.

• Marginal note:Status of employer representative

  (5) An employer representative shall be deemed to be an employer for the purposes of this Part and, by virtue of having been appointed under this section, has the power to, and shall, discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.

• Marginal note:Costs

  (5.1) The employer representative may require each employer of employees in the bargaining unit to remit its share of the costs that the employer representative has incurred or estimates will be incurred in fulfilling its duties and responsibilities under this Part and under the terms of the collective agreement.

• Marginal note:Duty of employer representative

  (6) In the discharge of the duties and responsibilities of an employer under this Part, an employer representative, or a person acting for such a representative, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts.

• Marginal note:Board to determine questions

  (7) The Board shall determine any question that arises under this section, including any question relating to the choice or appointment of the employer representative.

Marginal note:Board may declare single employer

• 35 (1) Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may, by order, declare that for all purposes of this Part the employers and the federal works, undertakings and businesses operated by them that are specified in the order are, respectively, a single employer and a single federal work, undertaking or business. Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

• Marginal note:Review of bargaining units

  (2) The Board may, in making a declaration under subsection (1), determine whether the employees affected constitute one or more units appropriate for collective bargaining.

Marginal note:Effect of certification

• 36 (1) Where a trade union is certified as the bargaining agent for a bargaining unit,

  • (a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

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

  • (c) the trade union so certified is substituted as a party to any collective agreement that affects any employees in the bargaining unit, to the extent that the collective agreement relates to those employees, in the place of the bargaining agent named in the collective agreement or any successor thereto; and

  • (d) the trade union so certified is deemed to be the bargaining agent for the purposes of paragraph 50(b).

• Marginal note:Notice to bargain

  (2) Where, pursuant to paragraph (1)(c), a trade union is substituted as a party to a collective agreement, the trade union may, within three months after the date on which it is certified as the bargaining agent for a bargaining unit affected by the collective agreement, require the employer who is a party to the collective agreement to commence collective bargaining for the purpose of renewing or revising the collective agreement or entering into a new collective agreement.

• Marginal note:Limitation

  (3) Subsection (2) does not apply to a trade union certified as a result of an application made under section 24.1.

Marginal note:Just cause requirement

• 36.1 (1) During the period that begins on the date of certification and ends on the date on which a first collective agreement is entered into, the employer must not dismiss or discipline an employee in the affected bargaining unit without just cause.

• Marginal note:Arbitration

  (2) Where a disagreement relating to the dismissal or discipline of an employee during the period referred to in subsection (1) arises between the employer and the bargaining agent,

  • (a) the bargaining agent may submit the disagreement to an arbitrator for final settlement as if it were a difference; and

  • (b) sections 57 to 66 apply, with the modifications that the circumstances require, to the disagreement.

Marginal note:Duty of fair representation

37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

Revocation of Certification and Related Matters

Marginal note:Application for revocation of certification

• 38 (1) Where a trade union has been certified as the bargaining agent for a bargaining unit, any employee who claims to represent a majority of the employees in the bargaining unit may, subject to subsection (5), apply to the Board for an order revoking the certification of that trade union.

• Marginal note:Time for application

  (2) An application for an order pursuant to subsection (1) may be made in respect of a bargaining agent for a bargaining unit,

  • (a) where a collective agreement applicable to the bargaining unit is in force, only during a period in which an application for certification of a trade union is authorized to be made pursuant to section 24 unless the Board consents to the making of the application for the order at some other time; and

  • (b) where no collective agreement applicable to the bargaining unit is in force, at any time after a period of one year from the date of certification of the trade union.

• Marginal note:Application for order that bargaining agent not entitled to represent bargaining unit

  (3) Where a collective agreement applicable to a bargaining unit is in force but the bargaining agent that is a party to the collective agreement has not been certified by the Board, any employee who claims to represent a majority of the employees in the bargaining unit may, subject to subsection (5), apply to the Board for an order declaring that the bargaining agent is not entitled to represent the employees in the bargaining unit.

• Marginal note:Time for application

  (4) An application for an order pursuant to subsection (3) may be made in respect of a bargaining agent for a bargaining unit,

  • (a) during the term of the first collective agreement that is entered into by the employer of the employees in the bargaining unit and the bargaining agent,

    • (i) at any time during the first year of the term of that collective agreement, and

    • (ii) thereafter, except with the consent of the Board, only during a period in which an application for certification of a trade union is authorized to be made pursuant to section 24; and

  • (b) in any other case, except with the consent of the Board, only during a period in which an application for certification of a trade union is authorized to be made pursuant to section 24.

• Marginal note:No application where strike or lockout

  (5) An application under subsection (1) or (3) must not, except with the consent of the Board, be made in respect of the bargaining agent for employees in a bargaining unit during a strike or lockout of those employees that is not prohibited by this Part.

Marginal note:Order revoking certification or declaring bargaining agent not entitled to represent bargaining unit

• 39 (1) Where, on receipt of an application for an order made under subsection 38(1) or (3) in respect of a bargaining agent for a bargaining unit, and after such inquiry by way of a representation vote or otherwise as the Board considers appropriate in the circumstances, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to have the bargaining agent represent them, the Board shall, subject to subsection (2), by order,

  • (a) in the case of an application made under subsection 38(1), revoke the certification of the trade union as the bargaining agent for the bargaining unit; or

  • (b) in the case of an application made under subsection 38(3), declare that the bargaining agent is not entitled to represent the employees in the bargaining unit.

• Marginal note:Limitation

  (2) Where no collective agreement applicable to a bargaining unit is in force, no order shall be made pursuant to paragraph (1)(a) in relation to the bargaining agent for the bargaining unit unless the Board is satisfied that the bargaining agent has failed to make a reasonable effort to enter into a collective agreement in relation to the bargaining unit.

Marginal note:Application where fraud

• 40 (1) Where a trade union has been certified as the bargaining agent for a bargaining unit,

  • (a) any employee in the bargaining unit,

  • (b) the employer of the employees in the bargaining unit, or

  • (c) any trade union that appeared before the Board in the certification proceeding,

  that alleges that the certification was obtained by the fraud of the trade union so certified, may apply to the Board, at any time, for revocation of the certification.

• Marginal note:Revocation of certification for fraud

  (2) On receipt of an application under subsection (1) in respect of a trade union certification as the bargaining agent for a bargaining unit, the Board shall, by order, revoke the certification of the trade union as the bargaining agent for the bargaining unit if the Board is satisfied that the evidence in support of the application

  • (a) was not and could not, by the exercise of reasonable diligence, have been presented to it in the certification proceeding; and

  • (b) is such that the Board would have refused to certify the trade union as the bargaining agent for the bargaining unit if the evidence had been presented to it in the certification proceeding.

Marginal note:Application for revocation of certification of a council of trade unions

• 41 (1) Where a council of trade unions has been certified as the bargaining agent for a bargaining unit, in addition to any circumstances in which an application for revocation of the certification of the council of trade unions may be made pursuant to section 38 or subsection 40(1), any employee in the bargaining unit, the employer of the employees in the bargaining unit or a trade union that forms part of the council of trade unions may apply to the Board for revocation of the certification on the ground that the council of trade unions no longer meets the requirements for certification of a council of trade unions.

• Marginal note:Revocation of certification of a council of trade unions

  (2) Where an application for revocation of certification is made under subsection (1), the Board may, by order, revoke the certification of the council of trade unions if, in the opinion of the Board, the council of trade unions no longer meets the requirements for certification of a council of trade unions.

• Marginal note:Time for application

  (3) An application under subsection (1) may be made in respect of a council of trade unions that has been certified as the bargaining agent for a bargaining unit only during a period in which an application for an order revoking the certification of that council of trade unions is authorized to be made under section 38.

Marginal note:Effect of revocation or declaration

42 Where the Board makes an order under section 39, subsection 40(2) or section 41 revoking the certification of a trade union or council of trade unions, or declaring that a trade union is not entitled to represent the employees in a bargaining unit,

• (a) any collective agreement between the trade union or council of trade unions and the employer of the employees in the bargaining unit that applies to the bargaining unit ceases to have effect from the time the order is made or from such later time as the Board considers appropriate; and

• (b) the employer shall not bargain collectively, or enter into a collective agreement with the trade union or council of trade unions, for a period of one year from the date of the order, unless the trade union or council of trade unions is certified by the Board under this Part during that period as the bargaining agent for a bargaining unit comprised of employees of the employer.

Successor Rights and Obligations

Marginal note:Mergers, etc., of trade unions

• 43 (1) Where, by reason of a merger or amalgamation of trade unions or a transfer of jurisdiction among trade unions, a trade union succeeds another trade union that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor shall be deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise.

• Marginal note:Board may determine questions

  (2) Where, on a merger or amalgamation of trade unions or a transfer of jurisdiction among trade unions, any question arises concerning the rights, privileges and duties of a trade union under this Part or under a collective agreement in respect of a bargaining unit or an employee therein, the Board, on application to it by a trade union affected by the merger, amalgamation or transfer of jurisdiction, shall determine what rights, privileges and duties have been acquired or are retained.

• Marginal note:Inquiry and votes

  (3) Before determining, pursuant to subsection (2), what rights, privileges and duties of a trade union have been acquired or are retained, the Board may make such inquiry or direct that such representation votes be taken as it considers necessary.

Marginal note:Definitions

• 44 (1) In this section and sections 45 to 47.1,

  business

  business means any federal work, undertaking or business and any part thereof; (entreprise)

  provincial business

  provincial business means a work, undertaking or business, or any part of a work, undertaking or business, the labour relations of which are subject to the laws of a province; (entreprise provinciale)

  sell

  sell, in relation to a business, includes the transfer or other disposition of the business and, for the purposes of this definition, leasing a business is deemed to be selling it. (vente)

• Marginal note:Sale of business

  (2) Where an employer sells a business,

  • (a) a trade union that is the bargaining agent for the employees employed in the business continues to be their bargaining agent;

  • (b) a trade union that made application for certification in respect of any employees employed in the business before the date on which the business is sold may, subject to this Part, be certified by the Board as their bargaining agent;

  • (c) the person to whom the business is sold is bound by any collective agreement that is, on the date on which the business is sold, applicable to the employees employed in the business; and

  • (d) the person to whom the business is sold becomes a party to any proceeding taken under this Part that is pending on the date on which the business was sold and that affects the employees employed in the business or their bargaining agent.

• Marginal note:Change of activity or sale of a provincial business

  (3) Where, as a result of a change of activity, a provincial business becomes subject to this Part, or such a business is sold to an employer who is subject to this Part,

  • (a) the trade union that, pursuant to the laws of the province, is the bargaining agent for the employees employed in the provincial business continues to be their bargaining agent for the purposes of this Part;

  • (b) a collective agreement that applied to employees employed in the provincial business at the time of the change or sale continues to apply to them and is binding on the employer or on the person to whom the business is sold;

  • (c) any proceeding that at the time of the change or sale was before the labour relations board or other person or authority that, under the laws of the province, is competent to decide the matter, continues as a proceeding under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party; and

  • (d) any grievance that at the time of the change or sale was before an arbitrator or arbitration board continues to be processed under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party.

Marginal note:Review of bargaining units

45 In the case of a sale or change of activity referred to in section 44, the Board may, on application by the employer or any trade union affected, determine whether the employees affected constitute one or more units appropriate for collective bargaining.

Marginal note:Board to determine questions

46 The Board shall determine any question that arises under section 44, including a question as to whether or not a business has been sold or there has been a change of activity of a business, or as to the identity of the purchaser of a business.

Marginal note:Where portion of public service established as federal business

• 47 (1) Where the name of any portion of the public service of Canada specified from time to time in Part I or II of Schedule I to the Public Service Staff Relations Act is deleted and that portion of the public service of Canada is established as or becomes a part of a corporation or business to which this Part applies, or where a portion of the public service of Canada included in a portion of the public service of Canada so specified in Part I or II of Schedule I to that Act is severed from the portion in which it was included and established as or becomes a part of such a corporation or business,

  • (a) a collective agreement or arbitral award that applies to any employees in that portion of the public service of Canada and that is in force at the time the portion of the public service of Canada is established as or becomes a part of such a corporation or business continues in force, subject to subsections (3) to (7), until its term expires; and

  • (b) the Public Service Staff Relations Act applies in all respects to the interpretation and application of the collective agreement or arbitral award.

• Marginal note:Application for certification

  (2) A trade union may apply to the Board for certification as the bargaining agent for the employees affected by a collective agreement or arbitral award referred to in subsection (1), but may so apply only during a period in which an application for certification of a trade union is authorized to be made under section 24.

• Marginal note:Application for order

  (3) Where the employees in a portion of the public service of Canada that is established as or becomes a part of a corporation or business to which this Part applies are bound by a collective agreement or arbitral award, the corporation or business, as employer of the employees, or any bargaining agent affected by the change in employment, may, during the period beginning on the one hundred and twentieth day and ending on the one hundred and fiftieth day after the date on which the portion of the public service of Canada is established as or becomes a part of the corporation or business, apply to the Board for an order determining the matters referred to in subsection (4).

• Marginal note:Determination of Board

  (4) Where an application is made under subsection (3) by a corporation or business or bargaining agent, the Board, by order, shall

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

  • (b) determine which trade union shall be the bargaining agent for the employees in each such unit; and

  • (c) in respect of each collective agreement or arbitral award that applies to employees of the corporation or business,

    • (i) determine whether the collective agreement or arbitral award shall remain in force, and

    • (ii) if the collective agreement or arbitral award is to remain in force, determine whether it shall remain in force until the expiration of its term or expire on such earlier date as the Board may fix.

• Marginal note:Application for leave to serve a notice to bargain collectively

  (5) Where the Board determines, pursuant to paragraph (4)(c), that a collective agreement or arbitral award shall remain in force, either party to the collective agreement or arbitral award may, not later than sixty days after the date the Board makes its determination, apply to the Board for an order granting leave to serve on the other party a notice to bargain collectively.

• Marginal note:Application to bargain collectively

  (6) Where no application for an order is made pursuant to subsection (3) within the period specified in that subsection, the corporation or business, as employer of the employees, or any bargaining agent bound by a collective agreement or arbitral award that, by subsection (1), is continued in force, may, during the period commencing on the one hundred and fifty-first day and ending on the two hundred and tenth day after the date the portion of the public service of Canada is established as or becomes a part of the corporation or business, apply to the Board for an order granting leave to serve on the other party a notice to bargain collectively.

• Marginal note:Effect of order

  (7) Where the Board has made an order pursuant to paragraph (4)(c), this Part applies to the interpretation and application of any collective agreement or arbitral award affected thereby.

• Marginal note:Arbitral award deemed part of collective agreement

  (8) An arbitral award that is continued in force by virtue of subsection (1) is deemed to be

  • (a) part of the collective agreement for the bargaining unit to which the award relates, or

  • (b) where there is no collective agreement for the bargaining unit, a collective agreement for the bargaining unit to which the award relates

  for the purposes of section 49, and this Part, other than section 80, applies in respect of the renewal or revision of the collective agreement or entering into a new collective agreement.

Marginal note:Where notice to bargain collectively given prior to deletion

47.1 Where, before the deletion or severance referred to in subsection 47(1), notice to bargain collectively has been given in respect of a collective agreement or arbitral award binding on employees of a corporation or business who, immediately before the deletion or severance, were part of the public service of Canada,

• (a) the terms and conditions of employment contained in a collective agreement or arbitral award that, by virtue of section 52 of the Public Service Staff Relations Act, are continued in force immediately before the date of the deletion or severance or that were last continued in force before that date, in respect of those employees shall continue or resume in force on and after that date and shall be observed by the corporation or business, as employer, the bargaining agent for those employees and those employees until the requirements of paragraphs 89(1)(a) to (d) have been met, unless the employer and the bargaining agent agree otherwise;

• (b) the Public Service Staff Relations Act applies in all respects to the interpretation and application of any term or condition continued or resumed by paragraph (a);

• (c) on application by the corporation or business, as employer, or the bargaining agent for those employees, made during the period beginning on the one hundred and twentieth day and ending on the one hundred and fiftieth day after the date of the deletion or severance, the Board shall make an order determining

  • (i) whether the employees of the corporation or business who are represented by the bargaining agent constitute one or more units appropriate for collective bargaining, and

  • (ii) which trade union shall be the bargaining agent for the employees in each such unit;

• (d) where the Board makes the determinations under paragraph (c), the corporation or business, as employer, or the bargaining agent may, by notice, require the other to commence collective bargaining under this Act for the purpose of entering into a collective agreement; and

• (e) this Part, other than section 80, applies in respect of a notice given under paragraph (d).

Marginal note:Order

47.2 The Governor in Council may, by order, exclude from the operation of sections 47 and 47.1 any portion of the public service of Canada that is deleted or severed as described in subsection 47(1) where the Governor in Council, on the recommendation of the Minister after consultation with the Treasury Board and the Minister responsible for that portion of the public service of Canada, is of the opinion that it is in the public interest to do so.

Successive Contracts for Services

Definition of previous contractor

• 47.3 (1) In this section, previous contractor means an employer who, under the terms of a contract or other arrangement that is no longer in force,

  • (a) provided pre-board security screening services to another employer, or to a person acting on behalf of that other employer, in an industry referred to in paragraph (e) of the definition federal work, undertaking or business in section 2; or

  • (b) provided any other service that may be designated by regulation of the Governor in Council, on the recommendation of the Minister, to another employer or a person acting on behalf of that other employer in any industry that may be designated by regulation of the Governor in Council on the recommendation of the Minister.

• Marginal note:Equal remuneration

  (2) An employer who succeeds a previous contractor as the provider of services, in accordance with a contract or other arrangement, must pay to the employees providing the services under that contract or arrangement remuneration not less than that which the employees of the previous contractor who provided the same or substantially similar services were entitled to receive under the terms of a collective agreement to which this Part applied.

DIVISION IVCOLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS

Obligation to Bargain Collectively

Marginal note:Notice to bargain to enter into a collective agreement

48 Where the Board has certified a bargaining agent for a bargaining unit and no collective agreement binding on the employees in the bargaining unit is in force, the bargaining agent may, by notice, require the employer of those employees, or the employer may, by notice, require the bargaining agent to commence collective bargaining for the purpose of entering into a collective agreement.

Marginal note:Notice to bargain to renew or revise a collective agreement or enter a new collective agreement

• 49 (1) Either party to a collective agreement may, within the period of four months immediately preceding the date of expiration of the term of the collective agreement, or within the longer period that may be provided for in the collective agreement, by notice, require the other party to the collective agreement to commence collective bargaining for the purpose of renewing or revising the collective agreement or entering into a new collective agreement.

• Marginal note:Idem

  (2) Where a collective agreement provides that any provision of the collective agreement may be revised during the term of the collective agreement, a party entitled to do so by the collective agreement may, by notice, require the other party to commence collective bargaining for the purpose of revising the provision.

Marginal note:Duty to bargain and not to change terms and conditions

50 Where notice to bargain collectively has been given under this Part,

• (a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the parties otherwise agree, shall

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

  • (ii) make every reasonable effort to enter into a collective agreement; and

• (b) the employer shall not alter the rates of pay or any other term or condition of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, until the requirements of paragraphs 89(1)(a) to (d) have been met, unless the bargaining agent consents to the alteration of such a term or condition, or such a right or privilege.

Technological Change

Definition of technological change

• 51 (1) In this section and sections 52 to 55, technological change means

  • (a) the introduction by an employer into their work, undertaking or business of equipment or material of a different nature or kind than that previously utilized by the employer in the operation of the work, undertaking or business; and

  • (b) a change in the manner in which the employer carries on the work, undertaking or business that is directly related to the introduction of that equipment or material.

• Marginal note:Application of sections 52, 54 and 55

  (2) Sections 52, 54 and 55 do not apply, in respect of a technological change, to an employer and a bargaining agent who are bound by a collective agreement where

  • (a) the employer has given to the bargaining agent a notice in writing of the technological change that is substantially in accordance with subsection 52(2),

    • (i) prior to the day on which the employer and the bargaining agent entered into the collective agreement, if the notice requiring the parties to commence collective bargaining for the purpose of entering into that collective agreement was given pursuant to section 48, or

    • (ii) not later than the last day on which notice requiring the parties to commence collective bargaining for the purpose of entering into the collective agreement could have been given pursuant to subsection 49(1), if the notice was given under that subsection;

  • (b) the collective agreement contains provisions that specify procedures by which any matters that relate to terms and conditions or security of employment likely to be affected by a technological change may be negotiated and finally settled during the term of the agreement; or

  • (c) the collective agreement contains provisions that

    • (i) are intended to assist employees affected by any technological change to adjust to the effects of the technological change, and

    • (ii) specify that sections 52, 54 and 55 do not apply, during the term of the collective agreement, to the employer and the bargaining agent.

Marginal note:Notice of technological change

• 52 (1) An employer who is bound by a collective agreement and who proposes to effect a technological change that is likely to affect the terms and conditions or security of employment of a significant number of the employer’s employees to whom the collective agreement applies shall give notice of the technological change to the bargaining agent bound by the collective agreement at least one hundred and twenty days prior to the date on which the technological change is to be effected.

• Marginal note:Contents of notice

  (2) The notice referred to in subsection (1) shall be in writing and shall state

  • (a) the nature of the technological change;

  • (b) the date on which the employer proposes to effect the technological change;

  • (c) the approximate number and type of employees likely to be affected by the technological change;

  • (d) the effect that the technological change is likely to have on the terms and conditions or security of employment of the employees affected; and

  • (e) such other information as is required by the regulations made pursuant to subsection (4).

• Marginal note:Details of proposed change

  (3) An employer who has given notice under subsection (1) to a bargaining agent shall, on request from the bargaining agent, provide the bargaining agent with a statement in writing setting out

  • (a) a detailed description of the nature of the proposed technological change;

  • (b) the names of the employees who will initially be likely to be affected by the proposed technological change; and

  • (c) the rationale for the change.

• Marginal note:Regulations of Governor in Council

  (4) The Governor in Council, on the recommendation of the Board, may make regulations

  • (a) specifying the number of employees or the method of determining the number of employees that shall, in respect of any federal work, undertaking or business, be deemed to be “significant” for the purposes of subsections (1) and 54(2); and

  • (b) requiring any information in addition to the information required by subsection (2) to be included in a notice of technological change.

Marginal note:Application for order respecting technological change

• 53 (1) Where a bargaining agent alleges that sections 52, 54 and 55 apply to an employer in respect of an alleged technological change and that the employer has failed to comply with section 52, the bargaining agent may, not later than thirty days after the bargaining agent became aware, or in the opinion of the Board ought to have become aware, of the failure of the employer to comply with section 52, apply to the Board for an order determining the matters so alleged.

• Marginal note:Order respecting technological change

  (2) On receipt of an application for an order determining the matters alleged under subsection (1) and after affording an opportunity for the parties to make representations, the Board may, by order,

  • (a) determine that sections 52, 54 and 55 do not apply to the employer in respect of the alleged technological change; or

  • (b) determine that sections 52, 54 and 55 apply to the employer in respect of the alleged technological change and that the employer has failed to comply with section 52 in respect of the technological change.

• Marginal note:Idem

  (3) The Board may, in any order made under paragraph (2)(b), or by order made after consultation with the parties pending the making of any order under subsection (2),

  • (a) direct the employer not to proceed with the technological change or alleged technological change for such period, not in excess of one hundred and twenty days, as the Board considers appropriate;

  • (b) require the reinstatement of any employee displaced by the employer as a result of the technological change; and

  • (c) where an employee is reinstated pursuant to paragraph (b), require the employer to reimburse the employee for any loss of pay suffered by the employee as a result of their displacement.

• Marginal note:Order deemed notice

  (4) An order of the Board made under paragraph (2)(b) in respect of an employer is deemed to be a notice of technological change given by the employer pursuant to section 52, and the Board shall concurrently, by order, grant leave to the bargaining agent to serve on the employer a notice to commence collective bargaining for the purpose referred to in subsection 54(1).

Marginal note:Application for order to serve notice to bargain

• 54 (1) Where a bargaining agent receives notice of a technological change pursuant to section 52, the bargaining agent may, in order to assist the employees affected by the change to adjust to the effects of the change, apply to the Board, within thirty days after the date on which it receives the notice, for an order granting leave to serve on the employer a notice to commence collective bargaining for the purpose of

  • (a) revising the existing provisions of the collective agreement by which they are bound that relate to terms and conditions or security of employment; or

  • (b) including new provisions in the collective agreement that relate to terms and conditions or security of employment.

• Marginal note:Order to serve notice to bargain

  (2) Where the Board has received from a bargaining agent an application for an order under subsection (1), and it is satisfied that the technological change in respect of which the bargaining agent has received notice given pursuant to section 52 is likely, substantially and adversely, to affect the terms and conditions or security of employment of a significant number of employees to whom the collective agreement between the bargaining agent and the employer applies, the Board may, by order, grant leave to the bargaining agent to serve on the employer a notice to commence collective bargaining for the purpose referred to in subsection (1).

Marginal note:Conditions precedent to technological change

55 Where a bargaining agent applies to the Board for an order under subsection 54(1), the employer in respect of whom the application is made shall not effect the technological change in respect of which the application is made until

• (a) the Board has made an order refusing to grant leave to the bargaining agent to serve on the employer a notice to commence collective bargaining; or

• (b) the Board has made an order granting leave to the bargaining agent to serve on the employer a notice to commence collective bargaining and

  • (i) an agreement has been reached as a result of collective bargaining, or

  • (ii) the requirements of paragraphs 89(1)(a) to (d) have been met.

Content and Interpretation of Collective Agreements

Marginal note:Effect of collective agreement

56 A collective agreement entered into between a bargaining agent and an employer in respect of a bargaining unit is, subject to and for the purposes of this Part, binding on the bargaining agent, every employee in the bargaining unit and the employer.

Marginal note:Provision for final settlement without stoppage of work

• 57 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

• Marginal note:Where arbitrator to be appointed

  (2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement

  • (a) to an arbitrator selected by the parties; or

  • (b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary.

• Marginal note:Idem

  (3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(a) and (b).

• Marginal note:Request to Minister for appointment of arbitrator or arbitration board chairperson

  (4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairperson, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written request to the Minister to appoint an arbitrator or arbitration board chairperson, as the case may be.

• Marginal note:Appointment by Minister

  (5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairperson, as the case may be.

• Marginal note:Effect of appointment by Minister

  (6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairperson shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties.

Marginal note:Decisions not to be reviewed by court

• 58 (1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court.

• Marginal note:No review by certiorari, etc.

  (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of their proceedings under this Part.

• Marginal note:Status

  (3) For the purposes of the Federal Court Act, an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act.

Marginal note:Copy to be filed with Minister

59 A copy of every order or decision of an arbitrator or arbitration board shall be filed with the Minister by the arbitrator or arbitration board chairperson and shall be available to the public in circumstances prescribed by the Governor in Council.

Marginal note:Powers of arbitrator, etc.

• 60 (1) An arbitrator or arbitration board has

  • (a) the powers conferred on the Board by paragraphs 16(a), (b), (c) and (f.1);

  • (a.1) the power to interpret, apply and give relief in accordance with a statute relating to employment matters, whether or not there is conflict between the statute and the collective agreement;

  • (a.2) the power to make the interim orders that the arbitrator or arbitration board considers appropriate;

  • (a.3) the power to consider submissions provided in the form that the arbitrator or the arbitration board considers appropriate or to which the parties agree;

  • (a.4) the power to expedite proceedings and to prevent abuse of the arbitration process by making the orders or giving the directions that the arbitrator or arbitration board considers appropriate for those purposes; and

  • (b) power to determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable.

• Marginal note:Power to extend time

  (1.1) The arbitrator or arbitration board may extend the time for taking any step in the grievance process or arbitration procedure set out in a collective agreement, even after the expiration of the time, if the arbitrator or arbitration board is satisfied that there are reasonable grounds for the extension and that the other party would not be unduly prejudiced by the extension.

• Marginal note:Power to mediate

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

• Marginal note:Idem

  (2) Where an arbitrator or arbitration board determines that an employee has been discharged or disciplined by an employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the arbitration, the arbitrator or arbitration board has power to substitute for the discharge or discipline such other penalty as to the arbitrator or arbitration board seems just and reasonable in the circumstances.

Marginal note:Procedure

61 An arbitrator or arbitration board shall determine their own procedure, but shall give full opportunity to the parties to the proceeding to present evidence and make submissions to the arbitrator or arbitration board.

Marginal note:Decision of arbitration board

62 Where a difference described in subsection 57(1) 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.

Marginal note:Arbitration costs, fees and expenses

63 Where a difference described in subsection 57(1) is submitted by the parties to an arbitrator or arbitration board, the costs, fees and expenses with respect to the arbitration proceedings shall, unless the collective agreement otherwise provides or the parties otherwise agree, be borne as follows:

• (a) each party shall bear its own costs and shall pay the fees and expenses of any member of the arbitration board who is nominated by it; and

• (b) the fees and expenses of an arbitrator or arbitration board chairperson, whether the arbitrator or chairperson is selected by the parties or their nominees or appointed by the Minister under this Part, shall be borne equally by the parties.

Marginal note:Order or decision within sixty days

• 64 (1) Every order or decision of an arbitrator or arbitration board shall be made or given within sixty days after, in the case of an arbitrator, their appointment as arbitrator, and, in the case of an arbitration board, the appointment of the arbitration board chairperson, unless

  • (a) the collective agreement otherwise provides or the parties otherwise agree; or

  • (b) 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 sixty days.

• Marginal note:Days not included

  (2) For the purposes of subsection (1), any day that is included in a period for which the arbitration proceedings are suspended pursuant to subsection 65(2) shall not be counted as one of the sixty days referred to in subsection (1).

• Marginal note:Late order or decision not invalid

  (3) The failure of an arbitrator or arbitration board to make or give any order or decision within the sixty days referred to in subsection (1) does not affect the jurisdiction of the arbitrator or arbitration board to continue with and complete the arbitration proceedings and any order or decision made or given by the arbitrator or arbitration board after the expiration of those sixty days is not for that reason invalid.

Marginal note:Questions may be referred to Board

• 65 (1) Where any question arises in connection with a matter that has been referred to an arbitrator or arbitration board, relating to the existence of a collective agreement or the identification of the parties or employees bound by a collective agreement, the arbitrator or arbitration board, the Minister or any alleged party may refer the question to the Board for determination.

• Marginal note:Arbitration proceeding not suspended

  (2) The referral of any question to the Board pursuant to subsection (1) shall not operate to suspend any proceeding before an arbitrator or arbitration board unless the arbitrator or arbitration board decides that the nature of the question warrants a suspension of the proceeding or the Board directs the suspension of the proceeding.

Marginal note:Filing of orders and decisions in Federal Court

• 66 (1) Any person or organization affected by any order or decision of an arbitrator or arbitration board may, after fourteen days from the date on which the order or decision is made or given, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order or decision, exclusive of the reasons therefor.

• Marginal note:Idem

  (2) On filing an order or decision of an arbitrator or arbitration board in the Federal Court under subsection (1), the order or decision shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order or decision were a judgment obtained in the Court.

Marginal note:Term of collective agreement

• 67 (1) 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 date on which it comes into force and shall not, except as provided by subsection 36(2) or with the consent of the Board, be terminated by the parties thereto within that term of one year.

• Marginal note:Revision of collective agreement

  (2) Nothing in this Part prohibits the parties to a collective agreement from agreeing to a revision of any provision of the collective agreement other than a provision relating to the term of the collective agreement.

• Marginal note:Board may order alteration of termination date

  (3) The Board may, on application made jointly by both parties to a collective agreement, order that the termination date of the collective agreement be altered for the purpose of establishing a common termination date for two or more collective agreements binding a single employer.

• Marginal note:Provision for settlement of differences to remain in force

  (4) Notwithstanding anything contained in a collective agreement, the provision required to be contained therein by subsection 57(1) shall remain in force after the termination of the collective agreement and until the requirements of paragraphs 89(1)(a) to (d) have been met.

• Marginal note:Power of arbitrator where agreement terminates

  (5) Where a difference between the parties to a collective agreement relating to a provision contained in the collective agreement arises during the period from the date of its termination to the date the requirements of paragraphs 89(1)(a) to (d) have been met,

  • (a) an arbitrator or arbitration board may hear and determine the difference; and

  • (b) sections 57 to 66 apply to the hearing and determination.

• Marginal note:Powers of arbitrator when conditions of paragraphs 89(1)(a) to (d) have been met

  (6) Where a disagreement concerning the dismissal or discipline of an employee in the bargaining unit arises during the period that begins on the date on which the requirements of paragraphs 89(1)(a) to (d) are met and ends on the date on which a new or revised collective agreement is entered into, the bargaining agent may submit the disagreement for final settlement in accordance with the provisions for the settlement of differences contained in the previous collective agreement. The relevant provisions in the collective agreement and sections 57 to 66 apply, with such modifications as the circumstances require, to the settlement of the disagreement.

Marginal note:Collective agreement may contain certain provisions

68 Nothing in this Part prohibits the parties to a collective agreement from including in the collective agreement a provision

• (a) requiring, as a condition of employment, membership in a specified trade union; or

• (b) granting a preference of employment to members of a specified trade union.

Definition of referral

• 69 (1) In this section, referral includes assignment, designation, dispatching, scheduling and selection.

• Marginal note:Operation of hiring halls

  (2) Where, pursuant to a collective agreement, a trade union is engaged in the referral of persons to employment, it shall establish rules for the purpose of making such referrals and apply those rules fairly and without discrimination.

• Marginal note:Posting of rules

  (3) Rules applied by a trade union pursuant to subsection (2) shall be kept posted in a conspicuous place in every area of premises occupied by the trade union in which persons seeking referral normally gather.

Compulsory Check-Off

Marginal note:Union dues to be deducted

• 70 (1) Where a trade union that is the bargaining agent for employees in a bargaining unit so requests, there shall be included in the collective agreement between the trade union and the employer of the employees a provision requiring the employer to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular union dues and to remit the amount to the trade union forthwith.

• Marginal note:Religious objections

  (2) Where the Board is satisfied that an employee, because of their religious conviction or beliefs, objects to joining a trade union or to paying regular union dues to a trade union, the Board may order that the provision in a collective agreement requiring, as a condition of employment, membership in a trade union or requiring the payment of regular union dues to a trade union does not apply to that employee so long as an amount equal to the amount of the regular union dues is paid by the employee, either directly or by way of deduction from their wages, to a registered charity mutually agreed on by the employee and the trade union.

• Marginal note:Designation by Board

  (3) Where an employee and the trade union are unable to agree on a registered charity for the purposes of subsection (2), the Board may designate any such charity as the charity to which payment should be made.

• Marginal note:Definitions

  (4) In this section,

  registered charity

  registered charity has the meaning assigned to that expression by the Income Tax Act; (organisme de bienfaisance enregistré)

  regular union dues

  regular union dues means, in respect of

  • (a) an employee who is a member of a trade union, the dues uniformly and regularly paid by a member of the union in accordance with the constitution and by-laws of the union, and

  • (b) an employee who is not a member of a trade union, the dues referred to in paragraph (a), other than any amount that is for payment of pension, superannuation, sickness insurance or any other benefit available only to members of the union. (cotisation syndicale normale)

DIVISION VCONCILIATION AND FIRST AGREEMENTS

Federal Mediation and Conciliation Service

Marginal note:Federal Mediation and Conciliation Service

• 70.1 (1) The Federal Mediation and Conciliation Service, the employees of which are employees of the Department of Human Resources Development, advises the Minister of Labour with respect to industrial relations matters and is responsible for fostering harmonious relations between trade unions and employers by assisting them in the negotiation of collective agreements and their renewal and the management of the relations resulting from the implementation of the agreements.

• Marginal note:Head

  (2) The head of the Federal Mediation and Conciliation Service reports to the Minister in respect of responsibilities relating to the resolution of disputes.

Conciliation Procedures

Marginal note:Notice of dispute

• 71 (1) Where a notice to commence collective bargaining has been given under this Part, either party may inform the Minister, by sending a notice of dispute, of their failure to enter into, renew or revise a collective agreement where

  • (a) collective bargaining has not commenced within the time fixed by this Part; or

  • (b) the parties have bargained collectively for the purpose of entering into or revising a collective agreement but have been unable to reach agreement.

• Marginal note:Copy to other party

  (2) The party who sends a notice of dispute under subsection (1) must immediately send a copy of it to the other party.

Marginal note:Options of Minister

• 72 (1) The Minister shall, not later than fifteen days after receiving a notice in writing under section 71,

  • (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, in writing, of the Minister’s intention not to appoint a conciliation officer or conciliation commissioner or establish a conciliation board.

• Marginal note:Idem

  (2) Where the Minister has not received a notice under section 71 but considers it advisable to take any action set out in paragraph (1)(a), (b) or (c) for the purpose of assisting the parties in entering into or revising a collective agreement, the Minister may take such action.

• Marginal note:Limitation

  (3) The Minister may only take one action referred to in this section with respect to any particular dispute involving a bargaining unit.

Marginal note:Delivery of notice to conciliation officer

• 73 (1) Where a conciliation officer has been appointed under subsection 72(1), the Minister shall forthwith deliver to the officer a copy of the notice given under section 71 in respect of the dispute.

• Marginal note:Duties of conciliation officer

  (2) Where a conciliation officer has been appointed under section 72, the conciliation officer shall

  • (a) forthwith after the appointment, confer with the parties to the dispute and endeavour to assist them in entering into or revising a collective agreement; and

  • (b) within fourteen days after the date of 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.

Marginal note:Delivery of notice

• 74 (1) Where a conciliation commissioner has been appointed or a conciliation board has been established, the Minister must immediately deliver to the conciliation commissioner or the members of the conciliation board a copy of the notice of dispute sent under section 71 and may, until their report has been submitted, refer other questions to them.

• Marginal note:Duties of conciliation commissioner or conciliation board

  (2) Where a conciliation commissioner has been appointed or a conciliation board has been established under subsection 72(1), the conciliation commissioner 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 fourteen days after the date of appointment or establishment, 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.

• Marginal note:Report of the Board

  (3) The report of the majority of the members of a conciliation board is the report of the conciliation board, except where each member of the conciliation board makes a report, in which case the report made by the person appointed by the Minister as a member and chairperson of the conciliation board is the report of the conciliation board.

Marginal note:Time limits

• 75 (1) Except with the consent of the parties, the Minister may not extend the time for a conciliation officer to report, or for a conciliation commissioner or conciliation board to submit a report, beyond sixty days after the date of appointment or establishment.

• Marginal note:Deemed reporting

  (2) The conciliation officer is deemed to have reported sixty days after the date on which that officer was appointed or at the end of the extended time limit to which the parties consent, unless she or he actually reports earlier.

• Marginal note:Deemed receipt of report

  (3) The Minister is deemed to have received the report of the conciliation commissioner or conciliation board sixty days after the date on which the conciliation commissioner was appointed or the board was established or at the end of the extended time limit to which the parties consent, unless the Minister actually receives the report earlier.

Marginal note:Reconsideration of report

76 After a conciliation commissioner or conciliation board has submitted their report, the Minister may direct the conciliation commissioner or conciliation board to reconsider the report and clarify or amplify any part of it.

Marginal note:Release of report

77 After receiving the report of a conciliation commissioner or conciliation board, the Minister

• (a) immediately releases a copy of the report to the parties to the dispute; and

• (b) may make the report available to the public in a manner that the Minister considers advisable.

Marginal note:Report binding by agreement

78 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.

Marginal note:Agreement

• 79 (1) Despite any other provision of this Part, an employer and a bargaining agent may agree in writing, as part of a collective agreement or otherwise, to refer any matter respecting the renewal or revision of a collective agreement or the entering into of a new collective agreement to a person or body for final and binding determination.

• Marginal note:Effect of agreement

  (2) The agreement suspends the right to strike or lockout and constitutes an undertaking to implement the determination.

Settlement of First Agreement

Marginal note:Minister may refer dispute to Board

• 80 (1) Where an employer or a bargaining agent is required, by notice given under section 48, to commence collective bargaining for the purpose of entering into the first collective agreement between the parties with respect to the bargaining unit for which the bargaining agent has been certified and the requirements of paragraphs 89(1)(a) to (d) have otherwise been met, the Minister may, if the Minister considers it necessary or advisable, at any time thereafter direct the Board to inquire into the dispute and, if the Board considers it advisable, to settle the terms and conditions of the first collective agreement between the parties.

• Marginal note:Board may settle terms and conditions

  (2) The Board shall proceed as directed by the Minister under subsection (1) and, if the Board settles the terms and conditions of a first collective agreement referred to in that subsection, those terms and conditions shall constitute the collective agreement between the parties and shall be binding on them and on the employees in the bargaining unit, except to the extent that such terms and conditions are subsequently amended by the parties by agreement in writing.

• Marginal note:Matters the Board may consider

  (3) In settling the terms and conditions of a first collective agreement under this section, the Board shall give the parties an opportunity to present evidence and make representations and the Board may take into account

  • (a) the extent to which the parties have, or have not, bargained in good faith in an attempt to enter into the first collective agreement between them;

  • (b) the terms and conditions of employment, if any, negotiated through collective bargaining for employees performing the same or similar functions in the same or similar circumstances as the employees in the bargaining unit; and

  • (c) such other matters as the Board considers will assist it in arriving at terms and conditions that are fair and reasonable in the circumstances.

• Marginal note:Duration of agreement

  (4) Where the terms and conditions of a first collective agreement are settled by the Board under this section, the agreement is effective for a period of two years after the date on which the Board settles the terms and conditions of the collective agreement.

Establishment of Conciliation Boards

Marginal note:Composition

• 81 (1) A conciliation board shall consist of three members appointed in the manner specified in section 82.

• Marginal note:Eligibility of members

  (2) A person is not eligible to be a member of a conciliation board if the person has a pecuniary interest that may be directly affected by any matter referred to the board.

Marginal note:Nomination by parties

• 82 (1) Where the Minister has, pursuant to section 72, decided to establish a conciliation board, the Minister shall immediately, by notice in writing, require each of the parties to the dispute to nominate, within seven days after receipt by the party of the notice, one person to be a member of the conciliation board and, on receipt of the nomination within those seven days, the Minister shall appoint the nominee to be a member of the conciliation board.

• Marginal note:Failure to nominate

  (2) Where either party to whom a notice is given pursuant to subsection (1) fails or neglects to nominate a person to be a member of the conciliation board to be established by the Minister within seven days after the receipt by that party of the notice, the Minister shall appoint, as a member of the conciliation board, a person the Minister considers to be qualified to be such a member, and the member so appointed shall be deemed to have been appointed on the nomination of that party.

• Marginal note:Nomination of chairperson

  (3) The members of a conciliation board appointed under subsection (1) or (2) shall, within five days after the appointment of the second member, nominate a third person, who is willing and ready to act, to be a member and chairperson of the conciliation board, and the Minister shall appoint that person to be a member and chairperson of the conciliation board.

• Marginal note:Failure to nominate chairperson

  (4) Where the members of a conciliation board appointed under subsection (1) or (2) fail or neglect to nominate a chairperson within five days after the appointment of the second such member, the Minister shall forthwith appoint, as the third member and chairperson of the conciliation board, a person whom the Minister considers qualified to be a member and chairperson of the conciliation board.

Marginal note:Notification to parties of establishment of board

83 When the members of a conciliation board have been appointed under section 82 in respect of a dispute, the Minister shall forthwith give notice to the parties of the names of the members of the board, and thereupon it shall be conclusively presumed that the conciliation board described in the notice has been established in accordance with this Part as of the date the notice is given.

General

Marginal note:Powers of board

84 A conciliation commissioner or a conciliation board

• (a) may determine their own procedure;

• (b) has, in relation to any proceeding before them, the powers conferred on the Board, in relation to any proceeding before the Board, by paragraphs 16(a), (b), (c), (f) and (h); and

• (c) may authorize any person to do anything described in paragraph 16(b) or (f) that the conciliation commissioner or conciliation board may do and to report to the conciliation commissioner or conciliation board thereon.

Marginal note:Sittings

• 85 (1) The chairperson of a conciliation board shall

  • (a) after consultation with the other members of the board, fix the time and place of sittings of the conciliation board;

  • (b) notify the parties to the dispute of the time and place so fixed; and

  • (c) at the conclusion of the sittings of the conciliation board, send to the Minister a detailed certified statement as to those sittings and as to the members of the conciliation board and witnesses present at each sitting.

• Marginal note:Quorum

  (2) The chairperson and one other member of a conciliation board constitute a quorum but, in the absence of any member, the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.

• Marginal note:Substitute member

  (3) Where a person ceases to be a member of a conciliation board before the board has completed its work, another member shall be nominated and appointed in their place in accordance with section 82.

Marginal note:Proceedings prohibited

86 No order shall be made, process entered or proceeding taken in any court

• (a) to question the appointment of, or refusal to appoint, a conciliation officer or conciliation commissioner, or the establishment of, or the refusal to establish, a conciliation board; or

• (b) to review, prohibit or restrain any proceeding of a conciliation officer, conciliation commissioner or conciliation board.

Marginal note:Report and testimony not evidence

87 No report of a conciliation commissioner or conciliation board, and no testimony or record of proceedings before a conciliation commissioner or conciliation board, are admissible in evidence in any court in Canada, except in the case of a prosecution for perjury.

DIVISION V.1OBLIGATIONS RELATING TO STRIKES AND LOCKOUTS

Marginal note:Definitions

87.1 The following definitions apply in this Division.

employer

employer includes an employers’ organization. (employeur)

trade union

trade union includes a council of trade unions. (syndicat)

Marginal note:Strike notice

• 87.2 (1) Unless a lockout not prohibited by this Part has occurred, a trade union must give notice to the employer, at least seventy-two hours in advance, indicating the date on which a strike will occur, and must provide a copy of the notice to the Minister.

• Marginal note:Lockout notice

  (2) Unless a strike not prohibited by this Part has occurred, an employer must give notice to the trade union, at least seventy-two hours in advance, indicating the date on which a lockout will occur, and must provide a copy of the notice to the Minister.

• Marginal note:New notice

  (3) Unless the parties agree otherwise in writing, where no strike or lockout occurs on the date indicated in a notice given pursuant to subsection (1) or (2), a new notice of at least seventy-two hours must be given by the trade union or the employer if they wish to initiate a strike or lockout.

Marginal note:Secret ballot — strike vote

• 87.3 (1) Unless a lockout not prohibited by this Part has occurred, a trade union may not declare or authorize a strike unless it has, within the previous sixty days, or any longer period that may be agreed to in writing by the trade union and the employer, held a secret ballot vote among the employees in the unit and received the approval of the majority of the employees who voted.

• Marginal note:Secret ballot — lockout vote

  (2) Unless a strike not prohibited by this Part has occurred, an employers’ organization may not declare or cause a lockout unless it has, within the previous sixty days, or any longer period that may be agreed to in writing by the trade union and the employers’ organization, held 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.

• Marginal note:Conduct of vote

  (3) A vote held under subsection (1) or (2) must be conducted in such a manner as to ensure that those employees or employers who are eligible to vote are given a reasonable opportunity to participate in the vote and to be informed of the results.

• Marginal note:Application to have vote declared invalid

  (4) An employee who is a member of a bargaining unit for which a strike vote has been held pursuant to subsection (1) and who alleges that there were irregularities in the conduct of the vote may, no later than ten days after the announcement of the results of the vote, make an application to the Board to have the vote declared invalid.

• Marginal note:Application to have vote declared invalid

  (5) An employer who is a member of an employers’ organization that has held a lockout vote pursuant to subsection (2) and who alleges that there were irregularities in the conduct of the vote may, no later than ten days after the announcement of the results of the vote, make an application to the Board to have the vote declared invalid.

• Marginal note:Summary procedure

  (6) The Board may summarily dismiss an application made pursuant to subsection (4) or (5) if it is satisfied that, even if the alleged irregularities were proven, the outcome of the vote would not be different.

• Marginal note:Order that vote invalid

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

Marginal note:Maintenance of activities

• 87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit 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 the safety or health of the public.

• Marginal note:Notice

  (2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.

• Marginal note:Agreement

  (3) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer enter into an agreement with respect to compliance with subsection (1), either party may file a copy of the agreement with the Board. When the agreement is filed, it has the same effect as an order of the Board.

• Marginal note:Where no agreement entered into

  (4) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer do not enter into an agreement, the Board shall, on application made by either party no later than fifteen days after notice of dispute has been given, determine any question with respect to the application of subsection (1).

• Marginal note:Referral

  (5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.

• Marginal note:Board order

  (6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,

  • (a) designate the supply of those services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public;

  • (b) specify the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production; and

  • (c) impose any measure that it considers appropriate for carrying out the requirements of this section.

• Marginal note:Review of order

  (7) On application by the employer or the trade union, or on referral by the Minister, during a strike or lockout not prohibited by this Part, the Board may, where in the Board’s opinion the circumstances warrant, review and confirm, amend or cancel an agreement entered into, or a determination or order made, under this section and make any orders that it considers appropriate in the circumstances.

• Marginal note:Binding settlement

  (8) Where the Board is satisfied that the level of activity to be continued in compliance with subsection (1) renders ineffective the exercise of the right to strike or lockout, the Board may, on application by the employer or the trade union, direct a binding method of resolving the issues in dispute between the parties for the purpose of ensuring settlement of a dispute.

Marginal note:Rights unaffected

• 87.5 (1) Where the Board has received an application pursuant to subsection 87.4(4) or a question has been referred to the Board pursuant to subsection 87.4(5), the employer must not alter the rates of pay or any other term or condition of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, without the consent of the bargaining agent, until the later of the date on which the Board has determined the application or the question referred and the date on which the requirements of paragraphs 89(1)(a) to (d) have been met.

• Marginal note:Rights unaffected

  (2) Unless the parties otherwise agree, the rates of pay or any other term or condition of employment, and any rights, duties or privileges of the employees, the employer or the trade union in effect before the requirements of paragraphs 89(1)(a) to (d) were met, continue to apply with respect to employees who are members of the bargaining unit and who have been assigned to maintain services, facilities and production pursuant to section 87.4.

• Marginal note:Continuation of strike or lockout

  (3) A referral made pursuant to subsection 87.4(5), during a strike or lockout not prohibited by this Part, or an application or referral made pursuant to subsection 87.4(7), does not suspend the strike or lockout.

Marginal note:Reinstatement of employees after strike or lockout

87.6 At the end of a strike or lockout not prohibited by this Part, the employer must reinstate employees in the bargaining unit who were on strike or locked out, 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.

Marginal note:Services to grain vessels

• 87.7 (1) During a strike or lockout not prohibited by this Part, an employer in the long-shoring industry, or other industry included in paragraph (a) of the definition federal work, undertaking or business in section 2, its employees and their bargaining agent shall continue to provide the services they normally provide to ensure the tie-up, let-go and loading of grain vessels at licensed terminal and transfer elevators, and the movement of the grain vessels in and out of a port.

• Marginal note:Rights unaffected

  (2) Unless the parties otherwise agree, the rates of pay or any other term or condition of employment, and any rights, duties or privileges of the employees, the employer or the trade union in effect before the requirements of paragraphs 89(1)(a) to (d) were met, continue to apply with respect to employees who are members of the bargaining unit and who have been assigned to provide services pursuant to subsection (1).

• Marginal note:Board order

  (3) On application by an affected employer or trade union, or on referral by the Minister, the Board may determine any question with respect to the application of subsection (1) and make any order it considers appropriate to ensure compliance with that subsection.

DIVISION VIPROHIBITIONS AND ENFORCEMENT

Strikes and Lockouts

Marginal note:Definitions

88 In this Division,

employer

employer includes an employers’ organization; (employeur)

trade union

trade union includes a council of trade unions. (syndicat)

Marginal note:Strikes and lockouts prohibited during term of collective agreement

88.1 Strikes and lockouts are prohibited during the term of a collective agreement except if

• (a) a notice to bargain collectively has been given pursuant to a provision of this Part, other than subsection 49(1); and

• (b) the requirements of subsection 89(1) have been met.

Marginal note:No strike or lockout until certain requirements met

• 89 (1) No employer shall declare or cause a lockout and no trade union shall declare or authorize a strike unless

  • (a) the employer or trade union has given notice to bargain collectively under this Part;

  • (b) the employer and the trade union

    • (i) have failed to bargain collectively within the period specified in paragraph 50(a), or

    • (ii) have bargained collectively in accordance with section 50 but have failed to enter into or revise a collective agreement;

  • (c) the Minister has

    • (i) received a notice, given under section 71 by either party to the dispute, informing the Minister of the failure of the parties to enter into or revise a collective agreement, or

    • (ii) taken action under subsection 72(2);

  • (d) twenty-one days have elapsed after the date on which the Minister

    • (i) notified the parties of the intention not to appoint a conciliation officer or conciliation commissioner, or to establish a conciliation board under subsection 72(1),

    • (ii) notified the parties that a conciliation officer appointed under subsection 72(1) has reported,

    • (iii) released a copy of the report to the parties to the dispute pursuant to paragraph 77(a), or

    • (iv) is deemed to have been reported to pursuant to subsection 75(2) or to have received the report pursuant to subsection 75(3);

  • (e) the Board has determined any application made pursuant to subsection 87.4(4) or any referral made pursuant to subsection 87.4(5); and

  • (f) sections 87.2 and 87.3 have been complied with.

• Marginal note:No employee to strike until certain requirements met

  (2) No employee shall participate in a strike unless

  • (a) the employee is a member of a bargaining unit in respect of which a notice to bargain collectively has been given under this Part; and

  • (b) the requirements of subsection (1) have been met in respect of the bargaining unit of which the employee is a member.

Marginal note:Right to strike or lockout limited during period between Parliaments

• 90 (1) Where a strike or lockout not prohibited by this Part occurs or may occur during the time commencing on the date of a dissolution of Parliament and ending on the date fixed for the return of the writs at the next following general election and, in the opinion of the Governor in Council, adversely affects or would adversely affect the national interest, the Governor in Council may during that time make an order deferring the strike or lockout during the period commencing on the day the order is made and ending on the twenty-first day following the date fixed for the return of the writs.

• Marginal note:Minister’s report

  (2) Where the Governor in Council makes an order pursuant to subsection (1) during the time mentioned in that subsection, the Minister shall, on any of the first ten sitting days of the first session of Parliament next following that time, lay before Parliament a report stating the reasons for the making of the order.

Declarations Relating to Strikes and Lockouts

Marginal note:Employer may apply for declaration that strike unlawful

• 91 (1) Where an employer alleges that a trade union has declared or authorized a strike, or that employees have participated, are participating or are likely to participate in a strike, the effect of which was, is or would be to involve the participation of an employee in a strike in contravention of this Part, the employer may apply to the Board for a declaration that the strike was, is or would be unlawful.

• Marginal note:Declaration that strike unlawful and strike prohibited

  (2) Where an employer applies to the Board under subsection (1) for a declaration that a strike was, is or would be unlawful, the Board may, after affording the trade union or employees referred to in subsection (1) an opportunity to make representations on the application, make such a declaration and, if the employer so requests, may make an order

  • (a) requiring the trade union to revoke the declaration or authorization to strike and to give notice of such revocation forthwith to the employees to whom it was directed;

  • (b) enjoining any employee from participating in the strike;

  • (c) requiring any employee who is participating in the strike to perform the duties of their employment; and

  • (d) requiring any trade union, of which any employee with respect to whom an order is made under paragraph (b) or (c) is a member, and any officer or representative of that union, forthwith to give notice of any order made under paragraph (b) or (c) to any employee to whom it applies.

Marginal note:Declaration that lockout unlawful and prohibition of lockout

92 Where a trade union alleges that an employer has declared or caused or is about to declare or cause a lockout of employees in contravention of this Part, the trade union may apply to the Board for a declaration that the lockout was, is or would be unlawful and the Board may, after affording the employer an opportunity to make representations on the application, make such a declaration and, if the trade union so requests, may make an order

• (a) enjoining the employer or any person acting on behalf of the employer from declaring or causing the lockout;

• (b) requiring the employer or any person acting on behalf of the employer to discontinue the lockout and to permit any employee of the employer who was affected by the lockout to return to the duties of their employment; and

• (c) requiring the employer forthwith to give notice of any order made against the employer under paragraph (a) or (b) to any employee who was affected, or would likely have been affected, by the lockout.

Marginal note:Terms and duration of order

• 93 (1) An order made under section 91 or 92

  • (a) shall be in such terms as the Board considers necessary and sufficient to meet the circumstances of the case; and

  • (b) subject to subsection (2), shall have effect for such time as is specified in the order.

• Marginal note:Application for supplementary order

  (2) Where the Board makes an order under section 91 or 92, the Board may, from time to time on application by the employer or trade union that requested the order or any employer, trade union, employee or other person affected thereby, notice of which application has been given to the parties named in the order, by supplementary order,

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

  • (b) revoke the order.

Unfair Practices

Marginal note:Employer interference in trade union

• 94 (1) No employer or person acting on behalf of an employer shall

  • (a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; or

  • (b) contribute financial or other support to a trade union.

• Marginal note:Exception

  (2) An employer is deemed not to contravene subsection (1) by reason only that they

  • (a) in respect of a trade union that is the bargaining agent for a bargaining unit comprised of or including employees of the employer,

    • (i) permit an employee or representative of the trade union to confer with them during hours of work or to attend to the business of the trade union during hours of work without any deduction from wages or any deduction of time worked for the employer,

    • (ii) provide free transportation to representatives of the trade union for purposes of collective bargaining, the administration of a collective agreement and related matters, or

    • (iii) permit the trade union to use their premises for the purposes of the trade union;

  • (b) contribute financial support to any pension, health or other welfare trust fund the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees; or

  • (c) express a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

• Marginal note:Prohibition relating to replacement workers

  (2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union’s representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a 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 bargaining unit on strike or locked out.

• Marginal note:Prohibitions relating to employers

  (3) No employer or person acting on behalf of an employer shall

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

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

    • (ii) has been expelled or suspended from membership in a trade union for a 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,

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

    • (iv) has made or is about to make a disclosure that the person may be required to make in a proceeding under this Part,

    • (v) has made an application or filed a complaint under this Part, or

    • (vi) has participated in a strike that is not prohibited by this Part or exercised any right under this Part;

  • (b) impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred on them by this Part;

  • (c) suspend, discharge or impose any financial or other penalty on an employee, or take any other disciplinary action against an employee, by reason of their refusal to perform all or some of the duties and responsibilities of another employee who is participating in a strike or subject to a lockout that is not prohibited by this Part;

  • (d) deny to any employee any pension rights or benefits to which the employee would be entitled but for

    • (i) the cessation of work by the employee as the result of a lockout or strike that is not prohibited by this Part, or

    • (ii) the dismissal of the employee contrary to this Part;

  • (d.1) where the requirements of paragraphs 89(1)(a) to (d) have been met, cancel or threaten to cancel a medical, dental, disability, life or other insurance plan, whether administered by the employer or otherwise, that benefits employees, so long as the bargaining agent tenders or attempts to tender to the employer payments or premiums sufficient to continue the plan;

  • (d.2) where the requirements of paragraphs 89(1)(a) to (d) have been met and the bargaining agent has tendered or attempted to tender to the employer payments or premiums sufficient to continue an insurance plan referred to in paragraph (d.1), deny or threaten to deny to any employee any benefits under the plan to which the employee was entitled before those requirements were met;

  • (e) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of a trade union or to refrain from

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

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

    • (iii) making an application or filing a complaint under this Part;

  • (f) suspend, discharge or impose any financial or other penalty on a person employed by them, or take any other disciplinary action against such a person, by reason of that person having refused to perform an act that is prohibited by this Part; or

  • (g) bargain collectively for the purpose of entering into a collective agreement or enter into a collective agreement with a trade union in respect of a bargaining unit, if another trade union is the bargaining agent for that bargaining unit.

Marginal note:Prohibitions relating to trade unions

95 No trade union or person acting on behalf of a trade union shall

• (a) seek to compel an employer to bargain collectively with the trade union if the trade union is not the bargaining agent for a bargaining unit that includes employees of the employer;

• (b) bargain collectively for the purpose of entering into a collective agreement or enter into a collective agreement with an employer in respect of a bargaining unit, if that trade union or person knows or, in the opinion of the Board, ought to know that another trade union is the bargaining agent for that bargaining unit;

• (c) participate in or interfere with the formation or administration of an employers’ organization;

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

• (e) require an employer to terminate the employment of an employee because the employee has been expelled or suspended from membership in the trade union for a 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;

• (f) expel or suspend an employee from membership in the trade union or deny membership in the trade union to an employee by applying to the employee in a discriminatory manner the membership rules of the trade union;

• (g) take disciplinary action against or impose any form of penalty on an employee by applying to that employee in a discriminatory manner the standards of discipline of the trade union;

• (h) expel or suspend an employee from membership in the trade union or take disciplinary action against or impose any form of penalty on an employee by reason of that employee having refused to perform an act that is contrary to this Part; or

• (i) discriminate against a person with respect to employment, a term or condition of employment or membership in a trade union, 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 that the person may be required to make in a proceeding under this Part, or

  • (iii) has made an application or filed a complaint under this Part.

Marginal note:General prohibition

96 No person shall seek by intimidation or coercion to compel a person to become or refrain from becoming or to cease to be a member of a trade union.

Marginal note:Complaints to the Board

• 97 (1) Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that

  • (a) an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has contravened or failed to comply with subsection 24(4) or 34(6) or section 37, 47.3, 50, 69, 87.5 or 87.6, subsection 87.7(2) or section 94 or 95; or

  • (b) any person has failed to comply with section 96.

• Marginal note:Time for making complaint

  (2) Subject to subsections (4) and (5), a complaint pursuant to subsection (1) must be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

• (3) [Repealed, 1998, c. 26, s. 43]

• Marginal note:Limitation on complaints against trade unions

  (4) Subject to subsection (5), no complaint shall be made to the Board under subsection (1) on the ground that a trade union or any person acting on behalf of a trade union has failed to comply with paragraph 95(f) or (g) unless

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

  • (b) the trade union

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

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

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

• Marginal note:Exception

  (5) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by a trade union to comply with paragraph 95(f) or (g) that has not been presented as a grievance or appeal to the trade union, if the Board is satisfied that

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

  • (b) the trade union has not given the complainant ready access to a grievance or appeal procedure.

Marginal note:Duty and power of the Board

• 98 (1) Subject to subsection (3), on receipt of a complaint made under section 97, the Board may assist the parties to the complaint to settle the complaint and shall, where it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, determine the complaint.

• (2) [Repealed, 1998, c. 26, s. 44]

• Marginal note:Board may refuse to determine complaint involving collective agreement

  (3) The Board may refuse to determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.

• Marginal note:Burden of proof

  (4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.

Marginal note:Board orders

• 99 (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may

  • (a) in respect of a failure to comply with subsection 24(4), section 47.3, paragraph 50(b) or subsection 87.5(1) or (2) or 87.7(2), by order, require an employer to pay to any employee compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

  • (a.1) in respect of a contravention of subsection 34(6), by order, require an employer representative to take and carry on on behalf of any employer affected by the contravention, or to assist any such employer to take and carry on, such action or proceeding as the Board considers that the representative ought to have taken and carried on on the employer’s behalf or ought to have assisted the employer to take and carry on;

  • (b) in respect of a contravention of section 37, require a trade union to take and carry on on behalf of any employee affected by the contravention or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

  • (b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects;

  • (b.2) in respect of a failure to comply with section 87.6, by order, require an employer to reinstate any employee who the employer has failed to reinstate in accordance with that section and pay to the employee compensation not exceeding the sum that, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee;

  • (b.3) in respect of a failure to comply with subsection 94(2.1), by order, require the employer to stop using, for the duration of the dispute, the services of 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 employees in the bargaining unit on strike or locked out;

  • (c) in respect of a failure to comply with paragraph 94(3)(a), (c) or (f), by order, require an employer to

    • (i) employ, continue to employ or permit to return to the duties of their employment any employee or other person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged for a reason that is prohibited by one of those paragraphs,

    • (ii) pay to any employee or other person affected by that failure compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee or other person, and

    • (iii) rescind any disciplinary action taken in respect of and pay compensation to any employee affected by that failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;

  • (c.1) in respect of a contravention of paragraph 94(3)(d.1) or (d.2), by order, require the employer to reinstate any medical, dental, disability, life or other insurance plan, or to pay to any employee any benefits under such a plan to which the employee was entitled before the requirements of paragraphs 89(1)(a) to (d) were met;

  • (d) in respect of a failure to comply with paragraph 94(3)(e), by order, require an employer to rescind any action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;

  • (e) in respect of a failure to comply with paragraph 95(f) or (h), by order, require a trade union to reinstate or admit an employee as a member of the trade union; and

  • (f) in respect of a failure to comply with paragraph 95(g), (h) or (i), by order, require a trade union to rescind any disciplinary action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the trade union.

• Marginal note:Idem

  (2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.

Marginal note:Certification

99.1 The Board may certify a trade union despite a lack of evidence of majority support if

• (a) the employer has failed to comply with section 94; and

• (b) the Board is of the opinion that, but for the unfair labour practice, the trade union could reasonably have been expected to have had the support of a majority of the employees in the unit.

Offences and Punishment

Marginal note:Lockout contrary to this Part

• 100 (1) Every employer who declares or causes a lockout contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the lockout continues.

• Marginal note:Idem

  (2) Every person who, on behalf of an employer, declares or causes a lockout contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

• Marginal note:Strike contrary to this Part

  (3) Every trade union that declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the strike continues.

• Marginal note:Idem

  (4) Every officer or representative of a trade union who declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

Marginal note:General offences by persons

• 101 (1) Subject to section 100, every person other than an employer or a trade union who contravenes or fails to comply with any provision of this Part other than section 50, 94 or 95 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.

• Marginal note:General offences by employers or trade unions

  (2) Subject to section 100, every employer or trade union who or that contravenes or fails to comply with any provision of this Part other than section 50, 94 or 95 is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

Marginal note:Further offences

102 Every person who

• (a) being required to attend to give evidence pursuant to paragraph 16(a), fails, without valid excuse, to attend accordingly,

• (b) being commanded to produce, pursuant to paragraph 16(a), any document or thing in their possession or under their control, fails to produce the document or thing,

• (c) refuses to be sworn or to affirm, as the case may be, after being required to do so pursuant to paragraph 16(a), or

• (d) refuses to answer any proper question put to them, pursuant to paragraph 16(a), by the Board, a conciliation board, a conciliation commissioner, an arbitrator or an arbitration board,

is guilty of an offence and liable on summary conviction to a fine not exceeding four hundred dollars.

Marginal note:Prosecution of employers’ organizations, trade unions and councils of trade unions

• 103 (1) A prosecution for an offence under this Part may be brought against and in the name of an employers’ organization, a trade union or a council of trade unions.

• Marginal note:Idem

  (2) For the purpose of a prosecution under subsection (1),

  • (a) an employers’ organization, trade union or council of trade unions shall be deemed to be a person; and

  • (b) any act or thing done or omitted to be done by an officer or agent of an employers’ organization, trade union or council of trade unions within the scope of their authority to act on behalf of the employers’ organization, trade union or council of trade unions shall be deemed to be an act or thing done or omitted to be done by the employers’ organization, trade union or council of trade unions.

Marginal note:Consent of Board before prosecution

104 Except with the consent in writing of the Board, no prosecution shall be instituted in respect of an offence under this Part.

DIVISION VIIGENERAL

Promotion of Industrial Peace

Marginal note:Round-table meetings

104.1 The Minister shall meet from time to time with a group consisting of the experts in industrial relations, and representatives of employers and of trade unions, that the Minister considers advisable for the purpose of discussing industrial relations issues.

Marginal note:Mediators

• 105 (1) The Minister, on request or on the Minister’s own initiative, may, where the Minister deems it expedient, at any time appoint a mediator to confer with the parties to a dispute or difference and endeavour to assist them in settling the dispute or difference.

• Marginal note:Recommendations

  (2) At the request of the parties or the Minister, a mediator appointed pursuant to subsection (1) may make recommendations for settlement of the dispute or the difference.

Marginal note:Inquiries regarding industrial matters

106 The Minister, on application or on the Minister’s own initiative, may, where the Minister deems it expedient, make any inquiries that the Minister considers advisable regarding matters that may affect industrial relations.

Marginal note:Additional powers

107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.

Marginal note:Industrial Inquiry Commission

• 108 (1) Pursuant to section 106 or where, in any industry, a dispute or difference between any employer and employees exists or is apprehended, the Minister may appoint a commission to be designated as an Industrial Inquiry Commission and to which the Minister shall refer the matter under consideration for investigation and report to the Minister.

• Marginal note:Idem

  (2) Where a matter under consideration is referred, pursuant to subsection (1), to an Industrial Inquiry Commission, the Minister shall

  • (a) furnish the Commission with a statement of the matter; and

  • (b) where the inquiry will involve any particular person or organization, inform the person or organization of the appointment.

• Marginal note:Composition of Commission

  (3) An Industrial Inquiry Commission shall consist of one or more members to be appointed by the Minister.

• Marginal note:Functions of Commission

  (4) Forthwith on its appointment, an Industrial Inquiry Commission

  • (a) shall inquire into the matters referred to it by the Minister and endeavour to carry out its terms of reference; and

  • (b) where the Commission is inquiring into a dispute or difference between any employer and employees and a settlement of the dispute or difference is not effected during the inquiry, shall make its report and recommendations to the Minister within fourteen days after its appointment or within such longer period as the Minister may allow.

• Marginal note:Distribution and publication of report

  (5) On receipt of a report of an Industrial Inquiry Commission relating to any dispute or difference between any employer and employees, the Minister shall

  • (a) furnish a copy of the report to each employer and trade union involved in the dispute or difference; and

  • (b) publish the report in such manner as the Minister considers advisable.

• Marginal note:Powers of Commission

  (6) An Industrial Inquiry Commission has all of the powers of a person appointed as a Commissioner under Part I of the Inquiries Act.

Vote on Employer’s Offer

Marginal note:Minister may order vote to be held

• 108.1 (1) Where notice to bargain collectively has been given under this Part, and the Minister is of the opinion that it is in the public interest that the employees in the affected bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties, the Minister may

  • (a) on such terms and conditions as the Minister considers appropriate, direct that a vote of the employees in the bargaining unit to accept or reject the offer be held as soon as possible; and

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

• Marginal note:No effect on time limits or periods

  (2) A direction under subsection (1) that a vote be held, or the holding of that vote, does not abridge or extend any time limit or period provided for in this Part, including those stipulated in section 89 for the acquisition of the right to lockout or strike.

• Marginal note:Consequences of favourable vote

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

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

  • (b) any lockout or strike not prohibited by this Part that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance shall cease forthwith.

• Marginal note:Powers respecting vote

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

Access to Employees

Marginal note:Application for access order

• 109 (1) Where the Board receives from a trade union an application for an order granting an authorized representative of the trade union access to employees living in an isolated location on premises owned or controlled by their employer or by any other person, the Board may make an order granting the authorized representative of the trade union designated in the order access to the employees on the premises of their employer or such other person, as the case may be, that are designated in the order if the Board determines that access to the employees

  • (a) would be impracticable unless permitted on premises owned or controlled by their employer or by such other person; and

  • (b) is reasonably required for purposes relating to soliciting union memberships, the negotiation or administration of a collective agreement, the processing of a grievance or the provision of a union service to employees.

• Marginal note:Content of order

  (2) The Board shall, in every order made under subsection (1), specify the method of access to the employees, the times at which access is permitted and the periods of its duration.

Marginal note:Communication with off-site workers

• 109.1 (1) On application by a trade union, the Board may, by order, require an employer to give an authorized representative of the trade union mentioned in the order, or the Board, or both, the names and addresses of employees whose normal workplace is not on premises owned or controlled by their employer and authorize the trade union to communicate with those employees, by electronic means or otherwise, if the Board is of the opinion that such communication is required for purposes relating to soliciting trade union memberships, the negotiation or administration of a collective agreement, the processing of a grievance or the provision of a trade union service to employees.

• Marginal note:Contents of order

  (2) An order made under subsection (1)

  • (a) must specify the method of communication, the times of day and the periods during which the communication is authorized, and the conditions that must be met in order to ensure the protection of the privacy and the safety of affected employees and to prevent the abusive use of information; and

  • (b) may include a requirement that the employer, in accordance with any terms and conditions that the Board establishes, transmit the information that the union wishes to communicate to the employees by means of any electronic communications system that the employer uses to communicate with the employees.

• Marginal note:Board transmission

  (3) If the Board is of the opinion that the privacy and safety of affected employees cannot otherwise be protected, the Board may

  • (a) provide each employee with the opportunity to refuse the giving of their name and address to the representative of the trade union that the Board authorizes and, if the employee does not so refuse, may transmit that name and address to the authorized representative; or

  • (b) transmit the information that the union wishes to communicate to the employees in the manner it considers appropriate.

• Marginal note:Protection of names and addresses

  (4) The names and addresses of employees provided under subsection (1) shall not be used unless it is for a purpose consistent with this section.

Access to Financial Statements

Marginal note:Financial statement of trade union and employers’ organization

• 110 (1) Every trade union and every employers’ organization shall, forthwith on the request of any of its members, provide the member, free of charge, with a copy of a financial statement of its affairs to the end of the last fiscal year, certified to be a true copy by its president and treasurer or by its president and any other officer responsible for the handling and administration of its funds.

• Marginal note:Idem

  (2) Any financial statement provided under subsection (1) shall contain information in sufficient detail to disclose accurately the financial condition and operations of the trade union or employers’ organization for the fiscal year for which it was prepared.

• Marginal note:Complaint to Board where failure to provide financial statement

  (3) The Board, on the complaint of any member of a trade union or employers’ organization that it has failed to comply with subsection (1), may make an order requiring the trade union or employers’ organization to file with the Board, within the time set out in the order, a statement in such form and with such particulars as the Board may determine.

• Marginal note:Order of the Board

  (4) The Board may make an order requiring a trade union or employers’ organization to provide a copy of a statement filed under subsection (3) to such members of the trade union or employers’ organization as the Board in its discretion directs.

Regulations

Marginal note:Regulations

111 The Governor in Council may make regulations

• (a) prescribing to or by whom and in what manner any notice, request or report that may be given or made to or received by the Minister shall be given, made or received;

• (b) prescribing in what form and manner any notice or report that is authorized or required to be given or sent by the Minister, a conciliation commissioner, a conciliation board or an Industrial Inquiry Commission shall be given or sent and what shall constitute sufficient service of such notice or report on the person to whom it is given or sent;

• (c) designating, with respect to any notice or request authorized or required to be given or sent by the Minister, the officer who may give or send the notice or request on behalf of the Minister;

• (d) prescribing the form and content of a notice to commence collective bargaining;

• (e) prescribing the form and content of a notice under section 71 and prescribing any additional information that is to be furnished with such a notice;

• (f) prescribing the form and content of a notice under section 87.2 and prescribing any additional information that is to be furnished with such a notice;

• (g) and (h) [Repealed, 1998, c. 26, s. 51]

• (i) prescribing the form and content of any written request to the Minister under subsection 57(2) or (4) and prescribing any additional information that is to be furnished with such a request;

• (j) prescribing the manner in which and the time within which a copy of an order or decision referred to in section 59 shall be filed with the Minister;

• (k) prescribing the circumstances in which copies of orders and decisions filed with the Minister pursuant to section 59 may be examined by members of the public and the fees, if any, to be charged for providing copies thereof; and

• (l) prescribing the manner in which a report of a conciliation commissioner or a conciliation board may be released by the Minister to the parties to a dispute pursuant to paragraph 77(a).

Marginal note:Delegation

111.1 The Minister may delegate to the head of the Federal Mediation and Conciliation Service his or her powers of appointment under this Act.

Miscellaneous

Marginal note:Documents as evidence

• 112 (1) Any document purporting to contain or to be a copy of any order or decision of the Board and purporting to be signed by a member of the Board is admissible in any court in evidence without proof of the signature or official character of the person appearing to have signed the document and without further proof thereof.

• Marginal note:Certificate of Minister is evidence

  (2) A certificate purporting to be signed by the Minister or an official of the Federal Mediation and Conciliation Service stating that a report, request or notice was or was not received or given by the Minister pursuant to this Part and, if so received or given, stating the date on which it was so received or given, is admissible in any court in evidence without proof of the signature or official character of the person appearing to have signed the certificate and without further proof thereof.

Marginal note:Late report not invalid

113 The failure of a conciliation officer, conciliation commissioner or conciliation board to report to the Minister within a period limited by this Part does not invalidate the proceeding or terminate the authority of the conciliation officer, conciliation commissioner or conciliation board.

Marginal note:Defect in form or irregularity

114 No proceeding under this Part is invalid by reason only of a defect in form or a technical irregularity.

Marginal note:Collective agreement to be filed

115 Each party to a collective agreement shall, forthwith on its execution, file one copy of the collective agreement with the Minister.

Marginal note:Remuneration and expenses

116 The members of an Industrial Inquiry Commission, the members of a conciliation board and every person not employed in the public service of Canada who acts as a conciliation officer or conciliation commissioner or who functions under this Part in any other capacity at the request of the Minister, except as an arbitrator or arbitration board chairperson, shall be paid such remuneration and expenses as may be fixed by the Governor in Council by regulation or by order.

Marginal note:Persons deemed not to be employed in Public Service

117 Unless the Governor in Council otherwise orders in a 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.

Marginal note:Witness fees and expenses

118 A person who is summoned by the Board, a conciliation board, a conciliation commissioner or an Industrial Inquiry Commission to attend as a witness in any proceeding taken under this Part, and who so attends, is entitled to be paid an allowance for expenses and a witness fee, 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 proceeding is being taken.

Marginal note:Member of Board, conciliation board, etc., not required to give evidence

119 No member of the Board or a conciliation board, conciliation officer, conciliation commissioner, officer or employee employed by the Board or in the public service of Canada or person appointed by the Board or the Minister under this Part shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of their duties under this Part.

Marginal note:No disclosure

119.1 For greater certainty, the following may not be disclosed without the consent of the person who made them:

• (a) notes or draft orders or decisions of the Board or any of its members, or of an arbitrator or arbitration board chairperson appointed by the Minister under this Part; and

• (b) notes or draft reports of persons appointed by the Minister under this Part to assist in resolving disputes or differences, or of persons authorized or designated by the Board to assist in resolving complaints or issues in dispute before the Board.

Arrangements with Provinces

Marginal note:Where uniform provincial legislation

• 120 (1) Where this Part and legislation enacted by the legislature of a province are substantially uniform, the Minister may, on behalf of the Government of Canada, with the approval of the Governor in Council, enter into an agreement with the government of the province to provide for the administration of the legislation of the province by officers and employees employed in the public service of Canada.

• Marginal note:Agreement for administration by Canada

  (2) An agreement made pursuant to subsection (1) in respect of the administration of any legislation of a province may provide

  • (a) for the administration by Canada of the legislation of the province with respect to any particular work, undertaking or business;

  • (b) that the Minister may, on behalf of the province, exercise the powers conferred or perform the duties imposed under the legislation of the province;

  • (c) that the members of the Board, or officers and employees employed in the public service of Canada, may exercise the powers conferred or perform the duties imposed under the legislation of the province; and

  • (d) for payment by the government of the province to the Government of Canada for expenses incurred by the Government of Canada in the administration of the legislation of the province.

• Marginal note:Where powers or duties conferred by provincial legislation

  (3) Where an agreement has been entered into between the Government of Canada and the government of a province in respect of any legislation of the province, the Minister, the members of the Board and any officers or employees employed in the public service of Canada may, if the legislation so provides and the Governor in Council so orders, exercise the powers and perform the duties specified in the legislation or agreement.

Annual Reports

Marginal note:Annual report of Board

• 121 (1) The Board shall, on or before January 31 next following the end of each fiscal year, submit to the Minister a report on the activities of the Board during the immediately preceding fiscal year and the Minister shall cause the report to be laid before Parliament within fifteen days after the receipt thereof or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

• (2) [Repealed, 1996, c. 11, s. 65]

Application of Provincial Laws

Marginal note:Provincial Crown corporations

121.1 The Governor in Council may by regulation direct that this Part applies in respect of any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation that is, or is part of, a corporation that is an agent of Her Majesty in right of a province and whose activities are regulated, in whole or in part, pursuant to the Nuclear Safety and Control Act.

Marginal note:Exclusion from application

• 121.2 (1) The Governor in Council may by regulation exclude, in whole or in part, from the application of any of the provisions of this Part any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation whose activities are regulated, in whole or in part, pursuant to the Nuclear Safety and Control Act.

• Marginal note:Regulations

  (2) On the recommendation of the Minister, the Governor in Council may make regulations respecting any matter relating to industrial relations, including the prevention of a work stoppage or the continuation or resumption of operations, in relation to employment that is subject to a regulation made pursuant to subsection (1).

• Marginal note:Incorporation of provincial law

  (3) A regulation made under subsection (2) incorporating by reference, in whole or in part, an Act of the legislature of a province or an instrument made under such an Act may incorporate the Act or instrument as amended to a certain date or from time to time.

• Marginal note:Application of regulation

  (4) A regulation made under subsection (2) may apply

  • (a) generally, with respect to all employment that is subject to a regulation made pursuant to subsection (1); or

  • (b) to any class or classes of employment that are subject to a regulation made pursuant to subsection (1).

• Marginal note:Administration and enforcement

  (5) A regulation made under subsection (2) incorporating an Act or instrument shall, after consultation by the Minister with the appropriate provincial minister, be administered and enforced by the person or authority that is responsible for the administration and enforcement of the Act or instrument.

• Marginal note:Offence and penalty

  (6) Subject to subsection (7), every person who contravenes a regulation made under subsection (2) by contravening a provision of an Act of the legislature of a province that, or an instrument made under such an Act that, is incorporated by the regulation is guilty of an offence against this Act and liable to the same punishment as is imposed by or under an Act of that legislature for the contravention of that provision.

• Marginal note:Defence

  (7) No person may be convicted of an offence or subjected to a punishment for a contravention described in subsection (6) unless it is proved that, at the time of the alleged contravention,

  • (a) the incorporated Act or instrument was reasonably accessible to the person;

  • (b) reasonable steps had been taken to ensure that the incorporated Act or instrument was accessible to persons likely to be affected by the regulation; or

  • (c) the incorporated Act or instrument had been published in the official gazette of the province or as otherwise authorized by the legislature of the province.

• Marginal note:Procedure

  (8) The prosecution of a contravention described in subsection (6) shall be commenced by the attorney general of the province in which the offence was committed.

Marginal note:Non-application of Statutory Instruments Act

121.3 Subsection 5(1) of the Statutory Instruments Act does not apply to a regulation made pursuant to section 121.1 or 121.2.

Definition of regulation

• 121.4 (1) In this section, regulation means a regulation made under subsection 121.2(2).

• Marginal note:Bargaining agents

  (2) A bargaining agent that represents a bargaining unit immediately before the time when a regulation is made to which the employees in the bargaining unit are subject continues, at that time, to represent the bargaining unit for the purposes of the application of the regulation.

• Marginal note:Collective agreements continued

  (3) Every collective agreement that is in force immediately before the time when a regulation is made that applies to employees who are subject to the collective agreement continues in force, at that time, under the regulation until its term expires.

• Marginal note:Notice to bargain

  (4) A notice to bargain given under this Part is deemed, at the time when a regulation is made to which the employees who are affected by the notice to bargain are subject, to have been given pursuant to the regulation on the day on which it was given.

• Marginal note:Acquired rights, etc.

  (5) Any rights, privileges or duties acquired under this Part by the bargaining unit, bargaining agent, employer or employees before the time when a regulation is made are deemed to have been acquired pursuant to the regulation on the day on which they were acquired.

• Marginal note:Decisions

  (6) A person or authority that, under an Act of the legislature of a province, is competent to decide a matter that is contemplated by this section in relation to a provision of an Act of the legislature of a province or an instrument made under such an Act may, on application by the employer or bargaining agent or, where the person or authority considers it appropriate, an employee, decide any matter that is contemplated by this section in relation to a regulation incorporating that provision.

Marginal note:Regulations

121.5 Notwithstanding section 121.4, the Governor in Council may make regulations respecting any matter referred to in that section in relation to a regulation made under subsection 121.2(2).

PART IIOccupational Health and Safety

Interpretation

Marginal note:Definitions

• 122 (1) In this Part,

  appeals officer

  agent d’appel

  appeals officer means a person who is designated as an appeals officer under section 145.1; (agent d’appel)

  Board

  Conseil

  Board means the Canada Industrial Relations Board established by section 9; (Conseil)

  collective agreement

  convention collective

  collective agreement has the same meaning as in section 166; (convention collective)

  danger

  danger

  danger means any existing or potential hazard or condition or any current or future activity that could reasonably be expected to cause injury or illness to a person exposed to it before the hazard or condition can be corrected, or the activity altered, whether or not the injury or illness occurs immediately after the exposure to the hazard, condition or activity, and includes any exposure to a hazardous substance that is likely to result in a chronic illness, in disease or in damage to the reproductive system; (danger)

  employee

  employé

  employee means a person employed by an employer; (employé)

  employer

  employeur

  employer means a person who employs one or more employees and includes an employers’ organization and any person who acts on behalf of an employer; (employeur)

  hazardous substance

  substance dangereuse

  hazardous substance includes a controlled product and a chemical, biological or physical agent that, by reason of a property that the agent possesses, is hazardous to the safety or health of a person exposed to it; (substance dangereuse)

  health and safety officer

  agent de santé et de sécurité

  health and safety officer means a person who is designated as a health and safety officer under section 140; (agent de santé et de sécurité)

  health and safety representative

  représentant

  health and safety representative means a person who is appointed as a health and safety representative under section 136; (représentant)

  policy committee

  comité d’orientation

  policy committee means a policy health and safety committee established under section 134.1; (comité d’orientation)

  prescribe

  règlement

  prescribe means prescribe by regulation of the Governor in Council or determine in accordance with rules prescribed by regulation of the Governor in Council; (règlement)

  regional health and safety officer

  agent régional de santé et de sécurité

  regional health and safety officer means a person who is designated as a regional health and safety officer under section 140; (agent régional de santé et de sécurité)

  regional safety officer

  regional safety officer[Repealed, 2000, c. 20, s. 2]

  safety

  sécurité

  safety means protection from danger and hazards arising out of, linked with or occurring in the course of employment; (sécurité)

  safety and health committee

  safety and health committee[Repealed, 2000, c. 20, s. 2]

  safety and health representative

  safety and health representative[Repealed, 2000, c. 20, s. 2]

  safety officer

  safety officer[Repealed, 2000, c. 20, s. 2]

  work place

  lieu de travail

  work place means any place where an employee is engaged in work for the employee’s employer; (lieu de travail)

  work place committee

  comité local

  work place committee means a work place health and safety committee established under section 135. (comité local)

• Marginal note:Idem

  (2) In this Part, the expressions controlled product, hazard symbol, Ingredient Disclosure List, label and material safety data sheet have the same meanings as in the Hazardous Products Act.

• Marginal note:Idem

  (3) Except where otherwise provided in this Part, all other words and expressions have the same meanings as in Part I.

Purpose of Part

Marginal note:Purpose of Part

122.1 The purpose of this Part is to prevent accidents and injury to health arising out of, linked with or occurring in the course of employment to which this Part applies.

Marginal note:Preventive measures

122.2 Preventive measures should consist first of the elimination of hazards, then the reduction of hazards and finally, the provision of personal protective equipment, clothing, devices or materials, all with the goal of ensuring the health and safety of employees.

Methods of Communication

Marginal note:Rights of employees

• 122.3 (1) An employee with a special need shall be given any direction, notice, information, instruction or training that is required to be given to employees under this Part by any method of communication that readily permits the employee to receive it, including braille, large print, audio tape, computer disk, sign language and verbal communication.

• Meaning of special need

  (2) For the purposes of this section, an employee has a special need if the employee is affected by a condition that impairs their ability to receive any direction, notice, information, instruction or training given by a method that would otherwise be sufficient under this Part.

Application

Marginal note:Application of Part

• 123 (1) Notwithstanding any other Act of Parliament or any regulations thereunder, this Part applies to and in respect of employment

  • (a) on or in connection with the operation of any federal work, undertaking or business other than a work, undertaking or business of a local or private nature in the Yukon Territory, the Northwest Territories or Nunavut;

  • (b) by a corporation established to perform any function or duty on behalf of the Government of Canada; and

  • (c) by a Canadian carrier, as defined in section 2 of the Telecommunications Act, that is an agent of Her Majesty in right of a province.

• Marginal note:Application to public service of Canada

  (2) This Part applies to the public service of Canada and to persons employed in the public service of Canada to the extent provided for under section 11 of the Financial Administration Act.

123.1 [Repealed, 1996, c. 12, s. 2]

Duties of Employers

Marginal note:General duty of employer

124 Every employer shall ensure that the health and safety at work of every person employed by the employer is protected.

Marginal note:Specific duties of employer

• 125 (1) Without restricting the generality of section 124, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

  • (a) ensure that all permanent and temporary buildings and structures meet the prescribed standards;

  • (b) install guards, guard-rails, barricades and fences in accordance with prescribed standards;

  • (c) investigate, record and report in the manner and to the authorities as prescribed all accidents, occupational diseases and other hazardous occurrences known to the employer;

  • (d) post at a place accessible to every employee and at every place directed by a health and safety officer

    • (i) a copy of this Part,

    • (ii) a statement of the employer’s general policy concerning the health and safety at work of employees, and

    • (iii) any other printed material related to health and safety that may be directed by a health and safety officer or that is prescribed;

  • (e) make readily available to employees for examination, in printed or electronic form, a copy of the regulations made under this Part that apply to the work place;

  • (f) if a copy of the regulations is made available in electronic form, provide appropriate training to employees to enable them to have access to the regulations and, on the request of an employee, make a printed copy of the regulations available;

  • (g) keep and maintain in prescribed form and manner prescribed health and safety records;

  • (h) provide prescribed first-aid facilities and health services;

  • (i) provide prescribed sanitary and personal facilities;

  • (j) provide, in accordance with prescribed standards, potable water;

  • (k) ensure that the vehicles and mobile equipment used by the employees in the course of their employment meet prescribed standards;

  • (l) provide every person granted access to the work place by the employer with prescribed safety materials, equipment, devices and clothing;

  • (m) ensure that the use, operation and maintenance of the following are in accordance with prescribed standards:

    • (i) boilers and pressure vessels,

    • (ii) escalators, elevators and other devices for moving persons or freight,

    • (iii) all equipment for the generation, distribution or use of electricity,

    • (iv) gas or oil burning equipment or other heat generating equipment, and

    • (v) heating, ventilation and air-conditioning systems;

  • (n) ensure that the levels of ventilation, lighting, temperature, humidity, sound and vibration are in accordance with prescribed standards;

  • (o) comply with prescribed standards relating to fire safety and emergency measures;

  • (p) ensure, in the prescribed manner, that employees have safe entry to, exit from and occupancy of the work place;

  • (q) provide, in the prescribed manner, each employee with the information, instruction, training and supervision necessary to ensure their health and safety at work;

  • (r) maintain all installed guards, guard-rails, barricades and fences in accordance with prescribed standards;

  • (s) ensure that each employee is made aware of every known or foreseeable health or safety hazard in the area where the employee works;

  • (t) ensure that the machinery, equipment and tools used by the employees in the course of their employment meet prescribed health, safety and ergonomic standards and are safe under all conditions of their intended use;

  • (u) ensure that the work place, work spaces and procedures meet prescribed ergonomic standards;

  • (v) adopt and implement prescribed safety codes and safety standards;

  • (w) ensure that every person granted access to the work place by the employer is familiar with and uses in the prescribed circumstances and manner all prescribed safety materials, equipment, devices and clothing;

  • (x) comply with every oral or written direction given to the employer by an appeals officer or a health and safety officer concerning the health and safety of employees;

  • (y) ensure that the activities of every person granted access to the work place do not endanger the health and safety of employees;

  • (z) ensure that employees who have supervisory or managerial responsibilities are adequately trained in health and safety and are informed of the responsibilities they have under this Part where they act on behalf of their employer;

  • (z.01) ensure that members of policy and work place committees and health and safety representatives receive the prescribed training in health and safety and are informed of their responsibilities under this Part;

  • (z.02) respond as soon as possible to reports made by employees under paragraph 126(1)(g);

  • (z.03) develop, implement and monitor, in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative, a prescribed program for the prevention of hazards in the work place appropriate to its size and the nature of the hazards in it that also provides for the education of employees in health and safety matters;

  • (z.04) where the program referred to in paragraph (z.03) does not cover certain hazards unique to a work place, develop, implement and monitor, in consultation with the work place committee or the health and safety representative, a prescribed program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

  • (z.05) consult the policy committee or, if there is no policy committee, the work place committee or the health and safety representative to plan the implementation of changes that might affect occupational health and safety, including work processes and procedures;

  • (z.06) consult the work place committee or the health and safety representative in the implementation of changes that might affect occupational health and safety, including work processes and procedures;

  • (z.07) ensure the availability in the work place of premises, equipment and personnel necessary for the operation of the policy and work place committees;

  • (z.08) cooperate with the policy and work place committees or the health and safety representative in the execution of their duties under this Part;

  • (z.09) develop health and safety policies and programs in consultation with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative;

  • (z.10) respond in writing to recommendations made by the policy and work place committees or the health and safety representative within thirty days after receiving them, indicating what, if any, action will be taken and when it will be taken;

  • (z.11) provide to the policy committee, if any, and to the work place committee or the health and safety representative, a copy of any report on hazards in the work place, including an assessment of those hazards;

  • (z.12) ensure that the work place committee or the health and safety representative inspects each month all or part of the work place, so that every part of the work place is inspected at least once each year;

  • (z.13) when necessary, develop, implement and monitor a program for the provision of personal protective equipment, clothing, devices or materials, in consultation, except in emergencies, with the policy committee or, if there is no policy committee, with the work place committee or the health and safety representative;

  • (z.14) take all reasonable care to ensure that all of the persons granted access to the work place, other than the employer’s employees, are informed of every known or foreseeable health or safety hazard to which they are likely to be exposed in the work place;

  • (z.15) meet with the health and safety representative as necessary to address health and safety matters;

  • (z.16) take the prescribed steps to prevent and protect against violence in the work place;

  • (z.17) post and keep posted, in a conspicuous place or places where they are likely to come to the attention of employees, the names, work place telephone numbers and work locations of all of the members of work place committees or of the health and safety representative;

  • (z.18) provide, within thirty days after receiving a request, or as soon as possible after that, the information requested from the employer by a policy committee under subsection 134.1(5) or (6), by a work place committee under subsection 135(8) or (9) or by a health and safety representative under subsection 136(6) or (7); and

  • (z.19) consult with the work place committee or the health and safety representative on the implementation and monitoring of programs developed in consultation with the policy committee.

• Marginal note:Exception

  (2) Paragraph (1)(z.17) does not apply to an employer who controls

  • (a) a single work place at which fewer than twenty employees are normally employed, if all of those employees and the health and safety representative normally work at the same time and in the same location; or

  • (b) a single work place at which only one employee is normally employed.

Marginal note:Further specific duties of employer

125.1 Without restricting the generality of section 124 or limiting the duties of an employer under section 125 but subject to any exceptions that may be prescribed, every employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls the activity,

• (a) ensure that concentrations of hazardous substances in the work place are controlled in accordance with prescribed standards;

• (b) ensure that all hazardous substances in the work place are stored and handled in the manner prescribed;

• (c) ensure that all hazardous substances in the work place, other than controlled products, are identified in the manner prescribed;

• (d) subject to the Hazardous Materials Information Review Act, ensure that each controlled product in the work place or each container in the work place in which a controlled product is contained has applied to it a label that discloses prescribed information and has displayed on it, in the manner prescribed, all applicable prescribed hazard symbols;

• (e) subject to the Hazardous Materials Information Review Act, make available to every employee, in the prescribed manner, a material safety data sheet that discloses the following information with respect to each controlled product to which the employee may be exposed, namely,

  • (i) if the controlled product is a pure substance, its chemical identity, and if it is not a pure substance, the chemical identity of any ingredient of it that is a controlled product and the concentration of that ingredient,

  • (ii) if the controlled product contains an ingredient that is included in the Ingredient Disclosure List and the ingredient is in a concentration that is equal to or greater than the concentration specified in the Ingredient Disclosure List for that ingredient, the chemical identity and concentration of that ingredient,

  • (iii) the chemical identity of any ingredient of the controlled product that the employer believes on reasonable grounds may be harmful to an employee and the concentration of that ingredient,

  • (iv) the chemical identity of any ingredient of the controlled product the toxicological properties of which are not known to the employer and the concentration of that ingredient, and

  • (v) any other information with respect to the controlled product that may be prescribed;

• (f) where employees may be exposed to hazardous substances, investigate and assess the exposure in the manner prescribed, with the assistance of the work place committee or the health and safety representative; and

• (g) ensure that all records of exposure to hazardous substances are kept and maintained in the prescribed manner and that personal records of exposure are made available to the affected employees.

Marginal note:Employer to provide information in emergency

• 125.2 (1) An employer shall, in respect of every work place controlled by the employer and, in respect of every work activity carried out by an employee in a work place that is not controlled by the employer, to the extent that the employer controls that activity, provide, in respect of any controlled product to which an employee may be exposed, as soon as is practicable in the circumstances, any information referred to in paragraph 125.1(e) that is in the employer’s possession to any physician or other prescribed medical professional who requests that information for the purpose of making a medical diagnosis of, or rendering medical treatment to, an employee in an emergency.

• Marginal note:Information to be kept confidential

  (2) Any physician or other prescribed medical professional to whom information is provided by an employer pursuant to subsection (1) shall keep confidential any information specified by the employer as being confidential, except for the purpose for which it is provided.

Marginal note:Coal mines

• 125.3 (1) Every employer of employees employed in a coal mine shall

  • (a) comply with every condition imposed on the employer pursuant to paragraph 137.2(2)(b) or (3)(a);

  • (b) comply with every provision substituted for a provision of the regulations, in respect of the employer, pursuant to paragraph 137.2(3)(b);

  • (c) permit inspections and tests to be carried out on behalf of the employees, in any part of the mine and on any machinery or equipment therein, in the prescribed manner and at intervals not greater than the prescribed interval; and

  • (d) as a condition of carrying out any activity for which the submission of plans and procedures is prescribed, submit to the Coal Mining Safety Commission for approval, in the form and manner and at the time prescribed, plans and procedures relating to that activity and carry out the activity in conformity with plans and procedures as approved.

• Marginal note:Methods, machinery and equipment

  (2) No employer shall require or permit the use in a coal mine of any mining method, machinery or equipment in respect of which no prescribed safety standards are applicable unless the use thereof has been approved pursuant to paragraph 137.2(2)(a).

• Marginal note:Searches

  (3) Every employer of employees employed in a coal mine shall, at intervals not greater than the prescribed interval, for the purpose of preventing alcohol, articles for use in smoking and drugs, other than drugs exempted by the regulations, from being brought into the mine,

  • (a) require every person entering an underground portion of the mine who is not employed there to submit to a personal search conducted in the prescribed manner; and

  • (b) require a proportion, not less than the prescribed proportion, of employees employed in the underground portions of the mine to submit to personal searches conducted in the prescribed manner.

• Definition of coal mine

  (4) For the purposes of this section and section 137.2, coal mine includes any work place above ground that is used in the operation of the mine and is under the control of the employer of employees employed in the mine.

Duties of Employees

Marginal note:Health and safety matters

• 126 (1) While at work, every employee shall

  • (a) use any safety materials, equipment, devices and clothing that are intended for the employee’s protection and furnished to the employee by the employer or that are prescribed;

  • (b) follow prescribed procedures with respect to the health and safety of employees;

  • (c) take all reasonable and necessary precautions to ensure the health and safety of the employee, the other employees and any person likely to be affected by the employee’s acts or omissions;

  • (d) comply with all instructions from the employer concerning the health and safety of employees;

  • (e) cooperate with any person carrying out a duty imposed under this Part;

  • (f) cooperate with the policy and work place committees or the health and safety representative;

  • (g) report to the employer any thing or circumstance in a work place that is likely to be hazardous to the health or safety of the employee, or that of the other employees or other persons granted access to the work place by the employer;

  • (h) report in the prescribed manner every accident or other occurrence arising in the course of or in connection with the employee’s work that has caused injury to the employee or to any other person;

  • (i) comply with every oral or written direction of a health and safety officer or an appeals officer concerning the health and safety of employees; and

  • (j) report to the employer any situation that the employee believes to be a contravention of this Part by the employer, another employee or any other person.

• Marginal note:No relief of employer’s duties

  (2) Nothing in subsection (1) relieves an employer from any duty imposed on the employer under this Part.

• Marginal note:Limitation of liability

  (3) No employee is personally liable for anything done or omitted to be done in good faith by the employee when the employee is assisting the employer, as requested by the employer, in providing first-aid or in carrying out any other emergency measures.

Employment Safety

Marginal note:Interference at accident scene prohibited

• 127 (1) Subject to subsection (2), if an employee is killed or seriously injured in a work place, no person shall, unless authorized to do so by a health and safety officer, remove or in any way interfere with or disturb any wreckage, article or thing related to the incident except to the extent necessary to

  • (a) save a life, prevent injury or relieve human suffering in the vicinity;

  • (b) maintain an essential public service; or

  • (c) prevent unnecessary damage to or loss of property.

• Marginal note:Exception

  (2) No authorization referred to in subsection (1) is required where an employee is killed or seriously injured by an accident or incident involving

  • (a) an aircraft, a ship, rolling stock or a pipeline, where the accident or incident is being investigated under the Aeronautics Act, the Canada Shipping Act or the Canadian Transportation Accident Investigation and Safety Board Act; or

  • (b) a motor vehicle on a public highway.

Internal Complaint Resolution Process

Marginal note:Complaint to supervisor

• 127.1 (1) An employee who believes on reasonable grounds that there has been a contravention of this Part or that there is likely to be an accident or injury to health arising out of, linked with or occurring in the course of employment shall, before exercising any other recourse available under this Part, except the rights conferred by sections 128, 129 and 132, make a complaint to the employee’s supervisor.

• Marginal note:Resolve complaint

  (2) The employee and the supervisor shall try to resolve the complaint between themselves as soon as possible.

• Marginal note:Investigation of complaint

  (3) The employee or the supervisor may refer an unresolved complaint to a chairperson of the work place committee or to the health and safety representative to be investigated jointly

  • (a) by an employee member and an employer member of the work place committee; or

  • (b) by the health and safety representative and a person designated by the employer.

• Marginal note:Notice

  (4) The persons who investigate the complaint shall inform the employee and the employer in writing, in the form and manner prescribed if any is prescribed, of the results of the investigation.

• Marginal note:Recommendations

  (5) The persons who investigate a complaint may make recommendations to the employer with respect to the situation that gave rise to the complaint, whether or not they conclude that the complaint is justified.

• Marginal note:Employer’s duty

  (6) If the persons who investigate the complaint conclude that the complaint is justified, the employer, on being informed of the results of the investigation, shall in writing and without delay inform the persons who investigated the complaint of how and when the employer will resolve the matter, and the employer shall resolve the matter accordingly.

• Marginal note:Stoppage of activity

  (7) If the persons who investigate the complaint conclude that a danger exists as described in subsection 128(1), the employer shall, on receipt of a written notice, ensure that no employee use or operate the machine or thing, work in the place or perform the activity that constituted the danger until the situation is rectified.

• Marginal note:Referral to health and safety officer

  (8) The employee or employer may refer a complaint that there has been a contravention of this Part to a health and safety officer in the following circumstances:

  • (a) where the employer does not agree with the results of the investigation;

  • (b) where the employer has failed to inform the persons who investigated the complaint of how and when the employer intends to resolve the matter or has failed to take action to resolve the matter; or

  • (c) where the persons who investigated the complaint do not agree between themselves as to whether the complaint is justified.

• Marginal note:Investigation by health and safety officer

  (9) The health and safety officer shall investigate, or cause another health and safety officer to investigate, the complaint referred to the officer under subsection (8).

• Marginal note:Duty and power of health and safety officer

  (10) On completion of the investigation, the health and safety officer

  • (a) may issue directions to an employer or employee under subsection 145(1);

  • (b) may, if in the officer’s opinion it is appropriate, recommend that the employee and employer resolve the matter between themselves; or

  • (c) shall, if the officer concludes that a danger exists as described in subsection 128(1), issue directions under subsection 145(2).

• Marginal note:Interpretation

  (11) For greater certainty, nothing in this section limits a health and safety officer’s authority under section 145.

Marginal note:Refusal to work if danger

• 128 (1) Subject to this section, an employee may refuse to use or operate a machine or thing, to work in a place or to perform an activity, if the employee while at work has reasonable cause to believe that

  • (a) the use or operation of the machine or thing constitutes a danger to the employee or to another employee;

  • (b) a condition exists in the place that constitutes a danger to the employee; or

  • (c) the performance of the activity constitutes a danger to the employee or to another employee.

• Marginal note:No refusal permitted in certain dangerous circumstances

  (2) An employee may not, under this section, refuse to use or operate a machine or thing, to work in a place or to perform an activity if

  • (a) the refusal puts the life, health or safety of another person directly in danger; or

  • (b) the danger referred to in subsection (1) is a normal condition of employment.

• Marginal note:Employees on ships and aircraft

  (3) If an employee on a ship or an aircraft that is in operation has reasonable cause to believe that

  • (a) the use or operation of a machine or thing on the ship or aircraft constitutes a danger to the employee or to another employee,

  • (b) a condition exists in a place on the ship or aircraft that constitutes a danger to the employee, or

  • (c) the performance of an activity on the ship or aircraft by the employee constitutes a danger to the employee or to another employee,

  the employee shall immediately notify the person in charge of the ship or aircraft of the circumstances of the danger and the person in charge shall, as soon as is practicable after having been so notified, having regard to the safe operation of the ship or aircraft, decide whether the employee may discontinue the use or operation of the machine or thing or cease working in that place or performing that activity and shall inform the employee accordingly.

• Marginal note:No refusal permitted in certain cases

  (4) An employee who, under subsection (3), is informed that the employee may not discontinue the use or operation of a machine or thing or cease to work in a place or perform an activity shall not, while the ship or aircraft on which the employee is employed is in operation, refuse under this section to use or operate the machine or thing, work in that place or perform that activity.

• Marginal note:When ship or aircraft in operation

  (5) For the purposes of subsections (3) and (4),

  • (a) a ship is in operation from the time it casts off from a wharf in a Canadian or foreign port until it is next secured alongside a wharf in Canada; and

  • (b) an aircraft is in operation from the time it first moves under its own power for the purpose of taking off from a Canadian or foreign place of departure until it comes to rest at the end of its flight to its first destination in Canada.

• Marginal note:Report to employer

  (6) An employee who refuses to use or operate a machine or thing, work in a place or perform an activity under subsection (1), or who is prevented from acting in accordance with that subsection by subsection (4), shall report the circumstances of the matter to the employer without delay.

• Marginal note:Select a remedy

  (7) Where an employee makes a report under subsection (6), the employee, if there is a collective agreement in place that provides for a redress mechanism in circumstances described in this section, shall inform the employer, in the prescribed manner and time if any is prescribed, whether the employee intends to exercise recourse under the agreement or this section. The selection of recourse is irrevocable unless the employer and employee agree otherwise.

• Marginal note:Employer to take immediate action

  (8) If the employer agrees that a danger exists, the employer shall take immediate action to protect employees from the danger. The employer shall inform the work place committee or the health and safety representative of the matter and the action taken to resolve it.

• Marginal note:Continued refusal

  (9) If the matter is not resolved under subsection (8), the employee may, if otherwise entitled to under this section, continue the refusal and the employee shall without delay report the circumstances of the matter to the employer and to the work place committee or the health and safety representative.

• Marginal note:Investigation of report

  (10) An employer shall, immediately after being informed of the continued refusal under subsection (9), investigate the matter in the presence of the employee who reported it and of

  • (a) at least one member of the work place committee who does not exercise managerial functions;

  • (b) the health and safety representative; or

  • (c) if no person is available under paragraph (a) or (b), at least one person from the work place who is selected by the employee.

• Marginal note:If more than one report

  (11) If more than one employee has made a report of a similar nature under subsection (9), those employees may designate one employee from among themselves to be present at the investigation.

• Marginal note:Absence of employee

  (12) An employer may proceed with an investigation in the absence of the employee who reported the matter if that employee or a person designated under subsection (11) chooses not to be present.

• Marginal note:Continued refusal to work

  (13) If an employer disputes a matter reported under subsection (9) or takes steps to protect employees from the danger, and the employee has reasonable cause to believe that the danger continues to exist, the employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity. On being informed of the continued refusal, the employer shall notify a health and safety officer.

• Marginal note:Notification of steps to eliminate danger

  (14) An employer shall inform the work place committee or the health and safety representative of any steps taken by the employer under subsection (13).

Marginal note:Employees on shift during work stoppage

• 128.1 (1) Unless otherwise provided in a collective agreement or other agreement, employees who are affected by a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during the stoppage until work resumes or until the end of the scheduled work period or shift, whichever period is shorter.

• Marginal note:Employees on next shift

  (2) Unless otherwise provided in a collective agreement or other agreement, employees who are due to work on a scheduled work period or shift after a shift during which there has been a stoppage of work arising from the application of section 127.1, 128 or 129 or subsection 145(2) are deemed, for the purpose of calculating wages and benefits, to be at work during their work period or shift, unless they have been given at least one hour’s notice not to attend work.

• Marginal note:Alternative work

  (3) An employer may assign reasonable alternative work to employees who are deemed under subsection (1) or (2) to be at work.

• Marginal note:Repayment

  (4) Unless otherwise provided in a collective agreement or other agreement, employees who are paid wages or benefits under subsection (1) or (2) may be required by the employer to repay those wages and benefits if it is determined, after all avenues of redress have been exhausted by the employee who exercised rights under section 128 or 129, that the employee exercised those rights knowing that no circumstances existed that would warrant it.

Marginal note:Investigation by health and safety officer

• 129 (1) On being notified that an employee continues to refuse to use or operate a machine or thing, work in a place or perform an activity under subsection 128(13), the health and safety officer shall without delay investigate or cause another officer to investigate the matter in the presence of the employer, the employee and one other person who is

  • (a) an employee member of the work place committee;

  • (b) the health and safety representative; or

  • (c) if a person mentioned in paragraph (a) or (b) is not available, another employee from the work place who is designated by the employee.

• Marginal note:Employees’ representative if more than one employee

  (2) If the investigation involves more than one employee, those employees may designate one employee from among themselves to be present at the investigation.

• Marginal note:Absence of any person

  (3) A health and safety officer may proceed with an investigation in the absence of any person mentioned in subsection (1) or (2) if that person chooses not to be present.

• Marginal note:Decision of health and safety officer

  (4) A health and safety officer shall, on completion of an investigation made under subsection (1), decide whether the danger exists and shall immediately give written notification of the decision to the employer and the employee.

• Marginal note:Continuation of work

  (5) Before the investigation and decision of a health and safety officer under this section, the employer may require that the employee concerned remain at a safe location near the place in respect of which the investigation is being made or assign the employee reasonable alternative work, and shall not assign any other employee to use or operate the machine or thing, work in that place or perform the activity referred to in subsection (1) unless

  • (a) the other employee is qualified for the work;

  • (b) the other employee has been advised of the refusal of the employee concerned and of the reasons for the refusal; and

  • (c) the employer is satisfied on reasonable grounds that the other employee will not be put in danger.

• Marginal note:Decision of health and safety officer re danger

  (6) If a health and safety officer decides that the danger exists, the officer shall issue the directions under subsection 145(2) that the officer considers appropriate, and an employee may continue to refuse to use or operate the machine or thing, work in that place or perform that activity until the directions are complied with or until they are varied or rescinded under this Part.

• Marginal note:Appeal

  (7) If a health and safety officer decides that the danger does not exist, the employee is not entitled under section 128 or this section to continue to refuse to use or operate the machine or thing, work in that place or perform that activity, but the employee, or a person designated by the employee for the purpose, may appeal the decision, in writing, to an appeals officer within ten days after receiving notice of the decision.

Marginal note:When collective agreement exists

130 The Minister may, on the joint application of the parties to a collective agreement, if the Minister is satisfied that the agreement contains provisions that are at least as effective as those under sections 128 and 129 in protecting the employees to whom the agreement relates from danger to their health or safety, exclude the employees from the application of those sections for the period during which the agreement remains in force.

Marginal note:Compensation under other laws not precluded

131 The fact that an employer or employee has complied with or failed to comply with any of the provisions of this Part may not be construed as affecting any right of an employee to compensation under any statute relating to compensation for employment injury or illness, or as affecting any liability or obligation of any employer or employee under any such statute.

Pregnant and Nursing Employees

Marginal note:Cease to perform job

• 132 (1) In addition to the rights conferred by section 128 and subject to this section, an employee who is pregnant or nursing may cease to perform her job if she believes that, by reason of the pregnancy or nursing, continuing any of her current job functions may pose a risk to her health or to that of the foetus or child. On being informed of the cessation, the employer, with the consent of the employee, shall notify the work place committee or the health and safety representative.

• Marginal note:Consult medical practitioner

  (2) The employee must consult with a qualified medical practitioner, as defined in section 166, of her choice as soon as possible to establish whether continuing any of her current job functions poses a risk to her health or to that of the foetus or child.

• Marginal note:Provision no longer applicable

  (3) Without prejudice to any other right conferred by this Act, by a collective agreement or other agreement or by any terms and conditions of employment, once the medical practitioner has established whether there is a risk as described in subsection (1), the employee may no longer cease to perform her job under subsection (1).

• Marginal note:Employer may reassign

  (4) For the period during which the employee does not perform her job under subsection (1), the employer may, in consultation with the employee, reassign her to another job that would not pose a risk to her health or to that of the foetus or child.

• Marginal note:Status of employee

  (5) The employee, whether or not she has been reassigned to another job, is deemed to continue to hold the job that she held at the time she ceased to perform her job functions and shall continue to receive the wages and benefits that are attached to that job for the period during which she does not perform the job.

Complaints when Action against Employees

Marginal note:Complaint to Board

• 133 (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.

• Marginal note:Time for making complaint

  (2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Restriction

  (3) A complaint in respect of the exercise of a right under section 128 or 129 may not be made under this section unless the employee has complied with subsection 128(6) or a health and safety officer has been notified under subsection 128(13), as the case may be, in relation to the matter that is the subject-matter of the complaint.

• Marginal note:Exclusion of arbitration

  (4) Notwithstanding any law or agreement to the contrary, a complaint made under this section may not be referred by an employee to arbitration or adjudication.

• Marginal note:Duty and power of Board

  (5) On receipt of a complaint made under this section, the Board may assist the parties to the complaint to settle the complaint and shall, if it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, hear and determine the complaint.

• Marginal note:Burden of proof

  (6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.

Marginal note:Board orders

134 If, under subsection 133(5), the Board determines that an employer has contravened section 147, the Board may, by order, require the employer to cease contravening that section and may, if applicable, by order, require the employer to

• (a) permit any employee who has been affected by the contravention to return to the duties of their employment;

• (b) reinstate any former employee affected by the contravention;

• (c) pay to any employee or former employee affected by the contravention compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for the contravention, have been paid by the employer to the employee or former employee; and

• (d) rescind any disciplinary action taken in respect of, and pay compensation to any employee affected by, the contravention, not exceeding the sum that, in the Board’s opinion, is equivalent to any financial or other penalty imposed on the employee by the employer.

Policy Health and Safety Committees

Marginal note:Establishment mandatory

• 134.1 (1) For the purposes of addressing health and safety matters that apply to the work, undertaking or business of an employer, every employer who normally employs directly three hundred or more employees shall establish a policy health and safety committee and, subject to section 135.1, select and appoint its members.

• Marginal note:Exception

  (2) An employer who normally employs directly more than twenty but fewer than three hundred employees may also establish a policy committee.

• Marginal note:More than one committee

  (3) An employer may establish more than one policy committee with the agreement of

  • (a) the trade union, if any, representing the employees; and

  • (b) the employees, in the case of employees not represented by a trade union.

• Marginal note:Duties of policy committee

  (4) A policy committee

  • (a) shall participate in the development of health and safety policies and programs;

  • (b) shall consider and expeditiously dispose of matters concerning health and safety raised by members of the committee or referred to it by a work place committee or a health and safety representative;

  • (c) shall participate in the development and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters;

  • (d) shall participate to the extent that it considers necessary in inquiries, investigations, studies and inspections pertaining to occupational health and safety;

  • (e) shall participate in the development and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials;

  • (f) shall cooperate with health and safety officers;

  • (g) shall monitor data on work accidents, injuries and health hazards; and

  • (h) shall participate in the planning of the implementation and in the implementation of changes that might affect occupational health and safety, including work processes and procedures.

• Marginal note:Information

  (5) A policy committee may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities in any of the employer’s work places.

• Marginal note:Access

  (6) A policy committee shall have full access to all of the government and employer reports, studies and tests relating to the health and safety of employees in the work place, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person’s consent.

• Marginal note:Meetings of committee

  (7) A policy committee shall meet during regular working hours at least quarterly and, if other meetings are required as a result of an emergency or other special circumstances, the committee shall meet as required during regular working hours or outside those hours.

Work Place Health and Safety Committees

Marginal note:Establishment mandatory

• 135 (1) For the purposes of addressing health and safety matters that apply to individual work places, and subject to this section, every employer shall, for each work place controlled by the employer at which twenty or more employees are normally employed, establish a work place health and safety committee and, subject to section 135.1, select and appoint its members.

• Marginal note:Exception

  (2) An employer is not required to establish a committee under subsection (1) for a work place that is on board a ship in respect of employees whose base is the ship.

• Marginal note:Exemption by Minister

  (3) On receipt of a request from an employer that is submitted in the form and manner prescribed, if any is prescribed, and if the Minister is satisfied after considering the factors set out in subsection (4) that the nature of work being done by employees at the work place is relatively free from risks to health and safety, the Minister may, by order, on any terms and conditions that are specified in the order, exempt the employer from the requirement to establish a work place committee.

• Marginal note:Factors to be considered

  (4) The following factors are to be considered for the purposes of subsection (3):

  • (a) the risk of occupational injury or illness from hazardous substances or other conditions known to be associated with the type of activity conducted in that type of work place;

  • (b) whether the nature of the operation of, and the processes and equipment used in, the work place are relatively free from hazards to health and safety in comparison with similar operations, processes and equipment;

  • (c) the physical and organizational structure of the work place, including the number of employees and the different types of work being performed; and

  • (d) during the current calendar year and the two calendar years immediately before it,

    • (i) the number of disabling injuries in relation to the number of hours worked in the work place,

    • (ii) the occurrence of incidents in the work place having serious effects on health and safety, and

    • (iii) any directions issued in respect of contraventions of paragraph 125(1)(c), (z.10) or (z.11), and any contraventions of this Part that had serious consequences in respect of the work place.

• Marginal note:Posting of request

  (5) A request for an exemption must be posted in a conspicuous place or places where it is likely to come to the attention of employees, and be kept posted until the employees are informed of the Minister’s decision in respect of the request.

• Marginal note:Exemption if collective agreement

  (6) If, under a collective agreement or any other agreement between an employer and the employer’s employees, a committee of persons has been appointed and the committee has, in the opinion of a health and safety officer, a responsibility for matters relating to health and safety in the work place to such an extent that a work place committee established under subsection (1) for that work place would not be necessary,

  • (a) the health and safety officer may, by order, exempt the employer from the requirements of subsection (1) in respect of that work place;

  • (b) the committee of persons that has been appointed for the work place has, in addition to any rights, functions, powers, privileges and obligations under the agreement, the same rights, functions, powers, privileges and obligations as a work place committee under this Part; and

  • (c) the committee of persons so appointed is, for the purposes of this Part, deemed to be a work place committee established under subsection (1) and all rights and obligations of employers and employees under this Part and the provisions of this Part respecting a work place committee apply, with any modifications that the circumstances require, to the committee of persons so appointed.

• Marginal note:Duties of committee

  (7) A work place committee, in respect of the work place for which it is established,

  • (a) shall consider and expeditiously dispose of complaints relating to the health and safety of employees;

  • (b) shall participate in the implementation and monitoring of the program referred to in paragraph 134.1(4)(c);

  • (c) where the program referred to in paragraph 134.1(4)(c) does not cover certain hazards unique to the work place, shall participate in the development, implementation and monitoring of a program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

  • (d) where there is no policy committee, shall participate in the development, implementation and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters related to those hazards;

  • (e) shall participate in all of the inquiries, investigations, studies and inspections pertaining to the health and safety of employees, including any consultations that may be necessary with persons who are professionally or technically qualified to advise the committee on those matters;

  • (f) shall participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials and, where there is no policy committee, shall participate in the development of the program;

  • (g) shall ensure that adequate records are maintained on work accidents, injuries and health hazards relating to the health and safety of employees and regularly monitor data relating to those accidents, injuries and hazards;

  • (h) shall cooperate with health and safety officers;

  • (i) shall participate in the implementation of changes that might affect occupational health and safety, including work processes and procedures and, where there is no policy committee, shall participate in the planning of the implementation of those changes;

  • (j) shall assist the employer in investigating and assessing the exposure of employees to hazardous substances;

  • (k) shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year; and

  • (l) where there is no policy committee, shall participate in the development of health and safety policies and programs.

• Marginal note:Information

  (8) A work place committee, in respect of the work place for which it is established, may request from an employer any information that the committee considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities.

• Marginal note:Access

  (9) A work place committee, in respect of the work place for which it is established, shall have full access to all of the government and employer reports, studies and tests relating to the health and safety of the employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person’s consent.

• Marginal note:Meetings of committee

  (10) A work place committee shall meet during regular working hours at least nine times a year at regular intervals and, if other meetings are required as a result of an emergency or other special circumstances, the committee shall meet as required during regular working hours or outside those hours.

Provisions Common to Policy Committees and Work Place Committees

Marginal note:Appointment of members

• 135.1 (1) Subject to this section, a policy committee or a work place committee shall consist of at least two persons and at least half of the members shall be employees who

  • (a) do not exercise managerial functions; and

  • (b) subject to any regulations made under subsection 135.2(1), have been selected by

    • (i) the employees, if the employees are not represented by a trade union, or

    • (ii) the trade union representing employees, in consultation with any employees who are not so represented.

• Marginal note:Exception — policy committee

  (2) Despite subsection (1) and if provided in a collective agreement or other agreement, the members of a policy committee may include persons who are not employees.

• Marginal note:Exception — work place committee

  (3) If there is no policy committee, a work place committee may, when dealing with an issue that would have come within the responsibilities of a policy committee, select two additional members. Unless otherwise provided in a collective agreement or other agreement, one of the additional members shall be an employee who meets the criteria set out in paragraphs (1)(a) and (b).

• Marginal note:Notification

  (4) If a trade union fails to select a person under subparagraph (1)(b)(ii), a health and safety officer may notify in writing the local branch of the trade union, and shall send a copy of any such notification to the trade union’s national or international headquarters and to the employer, indicating that the committee is not established until a person is selected in accordance with subparagraph (1)(b)(ii).

• Marginal note:Failure to select

  (5) If no person is selected under paragraph (1)(b), the employer shall perform the functions of the committee until a person is selected and the committee is established.

• Marginal note:Alternate members

  (6) The employer and employees may select alternate members to serve as replacements for members selected by them who are unable to perform their functions. Alternate members for employee members shall meet the criteria set out in paragraphs (1)(a) and (b).

• Marginal note:Chairpersons

  (7) A committee shall have two chairpersons selected from among the committee members. One of the chairpersons shall be selected by the employee members and the other shall be selected by the employer members.

• Marginal note:Chairpersons to assign functions

  (8) The chairpersons of a committee shall jointly designate members of the committee to perform the functions of the committee under this Part as follows:

  • (a) if two or more members are designated, at least half of the members shall be employee members; or

  • (b) if one member is designated, the member shall be an employee member.

• Marginal note:Records

  (9) A committee shall ensure that accurate records are kept of all of the matters that come before it and that minutes are kept of its meetings. The committee shall make the minutes and records available to a health and safety officer at the officer’s request.

• Marginal note:Time required for duties

  (10) The members of a committee are entitled to take the time required, during their regular working hours,

  • (a) to attend meetings or to perform any of their other functions; and

  • (b) for the purposes of preparation and travel, as authorized by both chairpersons of the committee.

• Marginal note:Payment of wages

  (11) A committee member shall be compensated by the employer for the functions described in paragraphs (10)(a) and (b), whether performed during or outside the member’s regular working hours, at the member’s regular rate of pay or premium rate of pay, as specified in the collective agreement or, if there is no collective agreement, in accordance with the employer’s policy.

• Marginal note:Wages for alternate members

  (12) Subsections (10) and (11) apply to alternate members only while they are actually performing the functions of the committee member they are replacing.

• Marginal note:Limitation of liability

  (13) No person serving as a member of a committee is personally liable for anything done or omitted to be done by the person in good faith under the authority or purported authority of this Part.

• Marginal note:Committee may establish rules

  (14) Subject to subsections 134.1(7) and 135(10) and any regulations made under subsection 135.2(1), a committee shall establish its own rules of procedure in respect of the terms of office, not exceeding two years, of its members and the time, place and frequency of regular meetings of the committee and may establish any rules of procedure for its operation that it considers advisable.

Marginal note:Regulations

• 135.2 (1) The Governor in Council may make regulations

  • (a) specifying the qualifications and terms of office of members of a committee;

  • (b) specifying the time and place of regular meetings of a committee;

  • (c) specifying the method of selecting employee members of a committee if employees are not represented by a trade union;

  • (d) specifying the method of selecting the chairpersons of a committee and their terms of office;

  • (e) establishing any rules of procedure for the operation of a committee that the Governor in Council considers advisable;

  • (f) requiring copies of minutes of committee meetings to be provided by and to any persons that the Governor in Council may prescribe;

  • (g) requiring a committee to submit an annual report of its activities to a specified person in the prescribed form within the prescribed time; and

  • (h) specifying the manner in which a committee may exercise its powers and perform its functions.

• Marginal note:Regulation may be general or specific

  (2) A regulation made under subsection (1) may be made applicable generally to all committees or particularly to one or more committees or classes of committees.

Health and Safety Representatives

Marginal note:Appointment of health and safety representative

• 136 (1) Every employer shall, for each work place controlled by the employer at which fewer than twenty employees are normally employed or for which an employer is not required to establish a work place committee, appoint the person selected in accordance with subsection (2) as the health and safety representative for that work place.

• Marginal note:Selection of person to be appointed

  (2) The health and safety representative for a work place shall be selected as follows:

  • (a) the employees at the work place who do not exercise managerial functions shall select from among those employees the person to be appointed; or

  • (b) if those employees are represented by a trade union, the trade union shall select the person to be appointed, in consultation with any employees who are not so represented, and subject to any regulations made under subsection (11).

  The employees or the trade union shall advise the employer in writing of the name of the person so selected.

• Marginal note:Notification

  (3) If a trade union fails to select a person under subsection (2), a health and safety officer may so notify in writing the local branch of the trade union. The officer shall send a copy of the notification to the trade union’s national or international headquarters and to the employer.

• Marginal note:Failure to select a representative

  (4) The employer shall perform the functions of the health and safety representative until a person is selected under subsection (2).

• Marginal note:Duties of representative

  (5) A health and safety representative, in respect of the work place for which the representative is appointed,

  • (a) shall consider and expeditiously dispose of complaints relating to the health and safety of employees;

  • (b) shall ensure that adequate records are maintained pertaining to work accidents, injuries, health hazards and the disposition of complaints related to the health and safety of employees and regularly monitor data relating to those accidents, injuries, hazards and complaints;

  • (c) shall meet with the employer as necessary to address health and safety matters;

  • (d) shall participate in the implementation and monitoring of the program referred to in paragraph 134.1(4)(c);

  • (e) where the program referred to in paragraph 134.1(4)(c) does not cover certain hazards unique to that work place, shall participate in the development, implementation and monitoring of a program for the prevention of those hazards that also provides for the education of employees in health and safety matters related to those hazards;

  • (f) where there is no policy committee, shall participate in the development, implementation and monitoring of a program for the prevention of hazards in the work place that also provides for the education of employees in health and safety matters;

  • (g) shall participate in all of the inquiries, investigations, studies and inspections pertaining to the health and safety of employees, including any consultations that may be necessary with persons who are professionally or technically qualified to advise the representative on those matters;

  • (h) shall cooperate with health and safety officers;

  • (i) shall participate in the implementation of changes that may affect occupational health and safety, including work processes and procedures and, where there is no policy committee, shall participate in the planning of the implementation of those changes;

  • (j) shall inspect each month all or part of the work place, so that every part of the work place is inspected at least once each year;

  • (k) shall participate in the development of health and safety policies and programs;

  • (l) shall assist the employer in investigating and assessing the exposure of employees to hazardous substances; and

  • (m) shall participate in the implementation and monitoring of a program for the provision of personal protective equipment, clothing, devices or materials and, where there is no policy committee, shall participate in the development of the program.

• Marginal note:Information

  (6) A health and safety representative, in respect of the work place for which the representative is appointed, may request from an employer any information that the representative considers necessary to identify existing or potential hazards with respect to materials, processes, equipment or activities.

• Marginal note:Access

  (7) A health and safety representative, in respect of the work place for which the representative is appointed, shall have full access to all of the government and employer reports, studies and tests relating to the health and safety of employees, or to the parts of those reports, studies and tests that relate to the health and safety of employees, but shall not have access to the medical records of any person except with the person’s consent.

• Marginal note:Time required for duties

  (8) A health and safety representative is entitled to take the time required, during their regular working hours,

  • (a) to perform any of the representative’s functions; and

  • (b) for the purposes of preparation and travel, as authorized by both chairpersons of the policy committee or, if there is no policy committee, as authorized by the employer.

• Marginal note:Payment of wages

  (9) A health and safety representative shall be compensated by the employer for the functions described in paragraphs (8)(a) and (b), whether performed during or outside the representative’s regular working hours, at the representative’s regular rate of pay or premium rate of pay, as specified in the collective agreement or, if there is no collective agreement, in accordance with the employer’s policy.

• Marginal note:Limitation of liability

  (10) No health and safety representative is personally liable for anything done or omitted to be done by the representative in good faith under the authority or purported authority of this section.

• Marginal note:Regulations

  (11) The Governor in Council may make regulations specifying

  • (a) the qualifications and term of office of a health and safety representative;

  • (b) the method of selecting a health and safety representative if employees are not represented by a trade union; and

  • (c) the manner in which a health and safety representative may exercise their powers and perform their functions.

Marginal note:Committees or representatives for certain work places

137 Notwithstanding sections 135 and 136, if an employer controls more than one work place referred to in section 135 or 136 or the size or nature of the operations of the employer or those of the work place precludes the effective functioning of a single work place committee or health and safety representative, as the case may be, for those work places, the employer shall, subject to the approval or in accordance with the direction of a health and safety officer, establish or appoint in accordance with section 135 or 136, as the case may require, a work place committee or health and safety representative for the work places that are specified in the approval or direction.

Coal Mining Safety Commission

Marginal note:Establishment of Commission

• 137.1 (1) There is hereby established a Coal Mining Safety Commission, in this section referred to as the “Commission” consisting of, subject to subsection (2.1), not more than five members to be appointed by the Minister to hold office during pleasure.

• Marginal note:Members of Commission

  (2) One member of the Commission shall be designated chairperson of the Commission by the Minister and the others shall be equally representative of the non-supervisory employees employed in coal mines and of the employers of those employees.

• Marginal note:Alternate chairperson

  (2.1) The Minister may appoint, by order, and under the terms and conditions specified in the order, any person as an alternate chairperson to act in the absence or incapacity of the chairperson. An alternate chairperson, while acting as chairperson, has all of the powers, duties and immunity of the chairperson.

• Marginal note:Selection and tenure

  (3) The manner of selection of the members of the Commission, other than the chairperson and an alternate chairperson, and the term of office of the members of the Commission shall be such as may be prescribed.

• Marginal note:Quorum

  (4) A quorum of the Commission consists of the chairperson or alternate chairperson, one member representative of non-supervisory employees and one member representative of employers.

• Marginal note:Health and safety officers ineligible

  (5) No health and safety officer is eligible to be appointed to the Commission or as alternate chairperson under subsection (2.1), or to be designated for the purposes of subsection 137.2(1) or (2).

• Marginal note:Remuneration

  (6) The members of the Commission, including an alternate chairperson, shall be paid the remuneration that may be fixed by the Governor in Council and, subject to the approval of the Treasury Board, any reasonable travel and living expenses that are incurred by them while performing their functions away from their ordinary place of residence.

• Marginal note:By-laws

  (7) The Commission may, subject to the approval of the Minister, make by-laws for the conduct of its activities.

• Marginal note:Staff and other assistance

  (8) The Minister may, at the request of the Commission, make available to the Commission such staff and other assistance as are necessary for the proper conduct of its activities.

• Marginal note:Annual report

  (9) The Commission shall, within sixty days following the end of each calendar year, submit a report to the Minister of its activities during the year.

• Marginal note:Immunity

  (10) No member of the Commission and no person designated by the Commission pursuant to subsection 137.2(1) or (2) is personally liable for anything done or omitted to be done in good faith under section 137.2.

Marginal note:Approval of plans, procedures

• 137.2 (1) The Commission or persons designated by the Commission for the purposes of this subsection may approve in writing, with or without modification, plans or procedures submitted in accordance with paragraph 125.3(1)(d).

• Marginal note:Approval of methods, machinery, equipment

  (2) On the application of an employer, the Commission or persons designated by the Commission for the purposes of this subsection may, if, in the opinion of the Commission or those persons, protection of the health and safety of employees would not thereby be diminished,

  • (a) approve in writing the use by the employer in coal mines of mining methods, machinery or equipment in respect of which no prescribed safety standards are applicable; or

  • (b) approve in writing, notwithstanding anything in this Part, the use by the employer in coal mines, for a specified time and subject to specified conditions, of any mining method, machinery or equipment that does not meet prescribed safety standards applicable in respect of it.

• Marginal note:Exemptions and substitutions

  (3) On the application of an employer, the Commission may, if in its opinion protection of the health and safety of employees would not thereby be diminished, by order,

  • (a) exempt the employer from compliance with any provision of the regulations in the operation of coal mines controlled by the employer, subject to any conditions contained in the order; or

  • (b) substitute for any provision of the regulations, so far as it applies to coal mines controlled by the employer, another provision having substantially the same purpose and effect.

• Marginal note:Recommendations for amendments

  (4) The Commission may make recommendations to the Minister for amending or revoking any provision of the regulations applicable to coal mines or for adding any provision thereto.

Administration

Marginal note:Special committees

• 138 (1) The Minister may appoint committees of persons to assist or advise the Minister on any matter that the Minister considers advisable concerning occupational health and safety related to employment to which this Part applies.

• Marginal note:Remuneration and expenses

  (1.1) At the discretion of the Minister, persons appointed to those committees may be paid the remuneration that may be fixed by the Minister and, in accordance with any applicable Treasury Board directives, any reasonable travel and living expenses that are incurred by them while performing their functions away from their ordinary place of residence.

• Marginal note:Inquiries

  (2) The Minister may cause an inquiry to be made into and concerning occupational health and safety in any employment to which this Part applies and may appoint one or more persons to hold the inquiry.

• Marginal note:Powers on an inquiry

  (3) A person appointed pursuant to subsection (2) has all the powers of a person appointed as a commissioner under Part I of the Inquiries Act.

• Marginal note:Research

  (4) The Minister may undertake research into the cause of and the means of preventing employment injury and occupational illness and may, where the Minister deems it appropriate, undertake such research in cooperation with any department or agency of the Government of Canada or with any or all provinces or with any organization undertaking similar research.

• Marginal note:Publication of information

  (5) The Minister may publish the results of any research undertaken under subsection (4) and compile, prepare and disseminate data or information bearing on health or safety of employees obtained from that research or otherwise.

• Marginal note:Occupational safety and health programs

  (6) The Minister may undertake programs to reduce or prevent employment injury and occupational illness and may, where the Minister deems it appropriate, undertake those programs in cooperation with any department or agency of the Government of Canada or with any or all provinces or any organization undertaking similar programs.

Marginal note:Medical surveillance and examination programs

• 139 (1) The Minister may undertake medical surveillance and examination programs with respect to occupational health and safety and may, if the Minister considers it appropriate, undertake those programs in cooperation with any department or agency of the Government of Canada or with any or all of the provinces or any organization undertaking similar programs.

• Marginal note:Appointment of medical officers

  (2) The Minister may appoint any medical practitioner qualified in occupational medicine to undertake the medical surveillance and examination programs.

Health and Safety Officers

Marginal note:Designation

• 140 (1) The Minister may designate as a regional health and safety officer or as a health and safety officer for the purposes of this Part any person who is qualified to perform the duties of such an officer.

• Marginal note:Agreements re use of provincial employees as officers

  (2) The Minister may, with the approval of the Governor in Council, enter into an agreement with any province or any provincial body specifying the terms and conditions under which a person employed by that province or provincial body may act as a health and safety officer for the purposes of this Part and, if such an agreement has been entered into, a person so employed and referred to in the agreement is deemed to be designated as a health and safety officer under subsection (1).

Marginal note:Powers of health and safety officers

• 141 (1) Subject to section 143.2, a health and safety officer may, in carrying out the officer’s duties and at any reasonable time, enter any work place controlled by an employer and, in respect of any work place, may

  • (a) conduct examinations, tests, inquiries, investigations and inspections or direct the employer to conduct them;

  • (b) take or remove for analysis, samples of any material or substance or any biological, chemical or physical agent;

  • (c) be accompanied or assisted by any person and bring any equipment that the officer deems necessary to carry out the officer’s duties;

  • (d) take or remove, for testing, material or equipment if there is no reasonable alternative to doing so;

  • (e) take photographs and make sketches;

  • (f) direct the employer to ensure that any place or thing specified by the officer not be disturbed for a reasonable period pending an examination, test, inquiry, investigation or inspection in relation to the place or thing;

  • (g) direct any person not to disturb any place or thing specified by the officer for a reasonable period pending an examination, test, inquiry, investigation or inspection in relation to the place or thing;

  • (h) direct the employer to produce documents and information relating to the health and safety of the employer’s employees or the safety of the work place and to permit the officer to examine and make copies of or take extracts from those documents and that information;

  • (i) direct the employer or an employee to make or provide statements, in the form and manner that the officer may specify, respecting working conditions and material and equipment that affect the health or safety of employees;

  • (j) direct the employer or an employee or a person designated by either of them to accompany the officer while the officer is in the work place; and

  • (k) meet with any person in private or, at the request of the person, in the presence of the person’s legal counsel or union representative.

• Marginal note:Officer not on premises

  (2) A health and safety officer may issue a direction under subsection (1) whether or not the officer is in the work place at the time the direction is issued.

• Marginal note:Return of material and equipment

  (3) A health and safety officer who has, under paragraph (1)(d), taken or removed material or equipment for testing shall, if requested by the person from whom it was taken or removed, return the material or equipment to the person after testing is completed unless the material or equipment is required for the purposes of a prosecution under this Part.

• Marginal note:Investigation of deaths

  (4) A health and safety officer shall investigate every death of an employee that occurred in the work place or while the employee was working, or that was the result of an injury that occurred in the work place or while the employee was working.

• Marginal note:Investigation of motor vehicle accidents

  (5) If the death results from a motor vehicle accident on a public road, as part of the investigation the health and safety officer shall obtain a copy of any police report as soon as possible after the accident.

• Marginal note:Report by officer

  (6) Within ten days after completing a written report on the findings of an inquiry or investigation, the health and safety officer shall provide the employer and the work place committee or the health and safety representative with a copy of the report.

• Marginal note:Certificate of authority

  (7) The Minister shall provide every health and safety officer with a certificate of authority and, when carrying out duties under this Part, the officer shall show the certificate to any person who asks to see it.

• Marginal note:Limitation of liability

  (8) A health and safety officer is not personally liable for anything done or omitted to be done by the officer in good faith under the authority or purported authority of this Part.

• Marginal note:Duty of Her Majesty

  (9) Notwithstanding subsection (8), and for greater certainty, Her Majesty in right of Canada is not relieved of any civil liability to which Her Majesty in right of Canada may otherwise be subject.

Marginal note:Inspections

• 141.1 (1) A health and safety officer shall conduct an inspection of the work place in the presence of

  • (a) an employee member and an employer member of the work place committee; or

  • (b) the health and safety representative and a person designated by the employer.

• Marginal note:Inspection not to be delayed

  (2) A health and safety officer may proceed with an inspection in the absence of any person mentioned in subsection (1) if that person chooses not to be present.

General Matters

Marginal note:Duty to assist officer

142 The person in charge of a work place and every person employed at, or in connection with, a work place shall give every appeals officer and health and safety officer all reasonable assistance to enable them to carry out their duties under this Part.

Marginal note:Obstruction and false statements

143 No person shall obstruct or hinder, or make a false or misleading statement either orally or in writing to an appeals officer or a health and safety officer engaged in carrying out their duties under this Part.

Marginal note:Provision of information

143.1 No person shall prevent an employee from providing information to an appeals officer or a health and safety officer engaged in carrying out their duties under this Part.

Marginal note:Permission required for access to residence

143.2 No person who carries out a duty under this Part shall enter a work place that is situated in an employee’s residence without the employee’s permission.

Marginal note:Evidence in civil suits precluded

• 144 (1) No health and safety officer or person who has accompanied or assisted the officer in carrying out the officer’s duties under this Part may be required to give testimony in a civil suit with regard to information obtained in the carrying out of those duties or in accompanying or assisting the officer, except with the written permission of the Minister.

• Marginal note:Appeals officer

  (2) No appeals officer or person who has accompanied or assisted the officer in carrying out the officer’s duties and functions under this Part may be required to give testimony in any proceeding with regard to information obtained in the carrying out of those duties and functions or in accompanying or assisting the officer.

• Marginal note:Non-disclosure of information

  (3) Subject to subsection (4), no appeals officer or health and safety officer who is admitted to a work place under the powers conferred on an officer by section 141 and no person accompanying such an officer shall disclose to any person any information obtained in the work place by that officer or person with regard to any secret process or trade secret, except for the purposes of this Part or as required by law.

• Marginal note:Privileged information

  (4) All information that, under the Hazardous Materials Information Review Act, an employer is exempt from disclosing under paragraph 125.1(d) or (e) or under paragraph 13(a) or (b) or 14(a) or (b) of the Hazardous Products Act and that is obtained in a work place, by an appeals officer or a health and safety officer who is admitted to the work place, under section 141, or by a person accompanying that officer, is privileged and, notwithstanding the Access to Information Act or any other Act or law, shall not be disclosed to any other person except for the purposes of this Part.

• Marginal note:Information not to be published

  (5) No person shall, except for the purposes of this Part or for the purposes of a prosecution under this Part, publish or disclose the results of an analysis, examination, testing, inquiry, investigation or sampling made or taken by or at the request of an appeals officer or a health and safety officer under section 141.

• Marginal note:Confidential communication

  (6) No person to whom information obtained under section 141 is communicated in confidence shall divulge the name of the informant to any person except for the purposes of this Part, and no such person is competent or compellable to divulge the name of the informant before any court or other tribunal.

Special Safety Measures

Marginal note:Direction to terminate contravention

• 145 (1) A health and safety officer who is of the opinion that a provision of this Part is being contravened or has recently been contravened may direct the employer or employee concerned, or both, to

  • (a) terminate the contravention within the time that the officer may specify; and

  • (b) take steps, as specified by the officer and within the time that the officer may specify, to ensure that the contravention does not continue or re-occur.

• Marginal note:Confirmation in writing

  (1.1) A health and safety officer who has issued a direction orally shall provide a written version of it

  • (a) before the officer leaves the work place, if the officer was in the work place when the direction was issued; or

  • (b) as soon as possible by mail, or by facsimile or other electronic means, in any other case.

• Marginal note:Dangerous situations — direction to employer

  (2) If a health and safety officer considers that the use or operation of a machine or thing, a condition in a place or the performance of an activity constitutes a danger to an employee while at work,

  • (a) the officer shall notify the employer of the danger and issue directions in writing to the employer directing the employer, immediately or within the period that the officer specifies, to take measures to

    • (i) correct the hazard or condition or alter the activity that constitutes the danger, or

    • (ii) protect any person from the danger; and

  • (b) the officer may, if the officer considers that the danger or the hazard, condition or activity that constitutes the danger cannot otherwise be corrected, altered or protected against immediately, issue a direction in writing to the employer directing that the place, machine, thing or activity in respect of which the direction is issued not be used, operated or performed, as the case may be, until the officer’s directions are complied with, but nothing in this paragraph prevents the doing of anything necessary for the proper compliance with the direction.

• Marginal note:Dangerous situations — direction to employee

  (2.1) If a health and safety officer considers that the use or operation of a machine or thing by an employee, a condition in a place or the performance of an activity by an employee constitutes a danger to the employee or to another employee, the officer shall, in addition to the directions issued under paragraph (2)(a), issue a direction in writing to the employee to discontinue the use, operation or activity or cease to work in that place until the employer has complied with the directions issued under that paragraph.

• Marginal note:Posting notice of danger

  (3) If a health and safety officer issues a direction under paragraph (2)(a), the officer shall affix or cause to be affixed to or near the place, machine or thing in respect of which the direction is issued, or in the area in which the activity in respect of which the direction is issued is performed, a notice in the form and containing the information that the Minister may specify, and no person shall remove the notice unless authorized to do so by a health and safety officer.

• Marginal note:Cessation of use

  (4) If a health and safety officer issues a direction under paragraph (2)(b) in respect of a place, machine, thing or activity, the employer shall cause the use or operation of the place, machine or thing or the performance of the activity to be discontinued, and no person shall use or operate the place, machine or thing or perform the activity until the measures directed by the officer have been taken.

• Marginal note:Copies of directions and reports

  (5) If a health and safety officer issues a direction under subsection (1) or (2) or makes a report in writing to an employer on any matter under this Part, the employer shall without delay

  • (a) cause a copy or copies of the direction or report to be posted in the manner that the officer may specify; and

  • (b) give a copy of the direction or report to the policy committee and a copy to the work place committee or the health and safety representative.

• Marginal note:Copy to person who made complaint

  (6) If a health and safety officer issues a direction under subsection (1), (2) or (2.1) or makes a report referred to in subsection (5) in respect of an investigation made by the officer pursuant to a complaint, the officer shall immediately give a copy of the direction or report to each person, if any, whose complaint led to the investigation.

• Marginal note:Copy to employer

  (7) If a health and safety officer issues a direction to an employee under subsection (1) or (2.1), the officer shall immediately give a copy of the direction to the employee’s employer.

• Marginal note:Response to direction or report

  (8) If a health and safety officer issues a direction under subsection (1), (2) or (2.1) or makes a report referred to in subsection (5), the officer may require the employer or the employee to whom the direction is issued or to whom the report relates to respond in writing to the direction or report, within the time that the officer may specify. The employer or employee shall provide a copy of the response to the policy committee and a copy to the work place committee or the health and safety representative.

Appeals of Decisions and Directions

Marginal note:Appointment

• 145.1 (1) The Minister may designate as an appeals officer for the purposes of this Part any person who is qualified to perform the duties of such an officer.

• Marginal note:Status

  (2) For the purposes of sections 146 to 146.5, an appeals officer has all of the powers, duties and immunity of a health and safety officer.

Marginal note:Appeal of direction

• 146 (1) An employer, employee or trade union that feels aggrieved by a direction issued by a health and safety officer under this Part may appeal the direction in writing to an appeals officer within thirty days after the date of the direction being issued or confirmed in writing.

• Marginal note:Direction not stayed

  (2) Unless otherwise ordered by an appeals officer on application by the employer, employee or trade union, an appeal of a direction does not operate as a stay of the direction.

Marginal note:Inquiry

• 146.1 (1) If an appeal is brought under subsection 129(7) or section 146, the appeals officer shall, in a summary way and without delay, inquire into the circumstances of the decision or direction, as the case may be, and the reasons for it and may

  • (a) vary, rescind or confirm the decision or direction; and

  • (b) issue any direction that the appeals officer considers appropriate under subsection 145(2) or (2.1).

• Marginal note:Decision and reasons

  (2) The appeals officer shall provide a written decision, with reasons, and a copy of any direction to the employer, employee or trade union concerned, and the employer shall, without delay, give a copy of it to the work place committee or health and safety representative.

• Marginal note:Posting of notice

  (3) If the appeals officer issues a direction under paragraph (1)(b), the employer shall, without delay, affix or cause to be affixed to or near the machine, thing or place in respect of which the direction is issued a notice of the direction, in the form and containing the information that the appeals officer may specify, and no person may remove the notice unless authorized to do so by the appeals officer.

• Marginal note:Cessation of use

  (4) If the appeals officer directs, under paragraph (1)(b), that a machine, thing or place not be used or an activity not be performed until the direction is complied with, no person may use the machine, thing or place or perform the activity until the direction is complied with, but nothing in this subsection prevents the doing of anything necessary for the proper compliance with the direction.

Marginal note:Powers

146.2 For the purposes of a proceeding under subsection 146.1(1), an appeals officer may

• (a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence under oath and to produce any documents and things that the officer considers necessary to decide the matter;

• (b) administer oaths and solemn affirmations;

• (c) receive and accept any evidence and information on oath, affidavit or otherwise that the officer sees fit, whether or not admissible in a court of law;

• (d) examine records and make inquiries as the officer considers necessary;

• (e) adjourn or postpone the proceeding from time to time;

• (f) abridge or extend the time for instituting the proceeding or for doing any act, filing any document or presenting any evidence;

• (g) make a party to the proceeding, at any stage of the proceeding, any person who, or any group that, in the officer’s opinion has substantially the same interest as one of the parties and could be affected by the decision;

• (h) determine the procedure to be followed, but the officer shall give an opportunity to the parties to present evidence and make submissions to the officer, and shall consider the information relating to the matter;

• (i) decide any matter without holding an oral hearing; and

• (j) order the use of a means of telecommunication that permits the parties and the officer to communicate with each other simultaneously.

Marginal note:Decision final

146.3 An appeals officer’s decision is final and shall not be questioned or reviewed in any court.

Marginal note:No review by certiorari, etc.

146.4 No order may be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an appeals officer in any proceeding under this Part.

Marginal note:Wages

146.5 An employee who is a party to a proceeding under subsection 146.1(1) and who attends at the proceeding, or any employee who has been summoned by an appeals officer to attend at such a proceeding and who attends, is entitled to be paid by the employer at the employee’s regular rate of wages for the time spent at the proceeding that would otherwise have been time at work.

Disciplinary Action

Marginal note:General prohibition re employer

147 No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee

• (a) has testified or is about to testify in a proceeding taken or an inquiry held under this Part;

• (b) has provided information to a person engaged in the performance of duties under this Part regarding the conditions of work affecting the health or safety of the employee or of any other employee of the employer; or

• (c) has acted in accordance with this Part or has sought the enforcement of any of the provisions of this Part.

Marginal note:Abuse of rights

• 147.1 (1) An employer may, after all the investigations and appeals have been exhausted by the employee who has exercised rights under sections 128 and 129, take disciplinary action against the employee who the employer can demonstrate has wilfully abused those rights.

• Marginal note:Written reasons

  (2) The employer must provide the employee with written reasons for any disciplinary action within fifteen working days after receiving a request from the employee to do so.

Offences and Punishment

Marginal note:General offence

• 148 (1) Subject to this section, every person who contravenes a provision of this Part is guilty of an offence and liable

  • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

  • (b) on summary conviction, to a fine of not more than $100,000.

• Marginal note:If death or injury

  (2) Every person who contravenes a provision of this Part the direct result of which is the death of, serious illness of or serious injury to an employee is guilty of an offence and liable

  • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

  • (b) on summary conviction, to a fine of not more than $1,000,000.

• Marginal note:Risk of death or injury

  (3) Every person who wilfully contravenes a provision of this Part knowing that the contravention is likely to cause the death of, serious illness of or serious injury to an employee is guilty of an offence and liable

  • (a) on conviction on indictment, to a fine of not more than $1,000,000 or to imprisonment for a term of not more than two years, or to both; or

  • (b) on summary conviction, to a fine of not more than $1,000,000.

• Marginal note:Defence

  (4) On a prosecution of a person for a contravention of any provision of this Part, except paragraphs 125(1)(c), (z.10) and (z.11), it is a defence for the person to prove that the person exercised due care and diligence to avoid the contravention. However, no person is liable to imprisonment on conviction for an offence under any of paragraphs 125(1)(c), (z.10) and (z.11).

• Marginal note:Presumption

  (5) For the purposes of this section, if regulations are made under subsection 157(1.1) in relation to health or safety matters referred to in a paragraph of any of sections 125 to 126 by which a standard or other thing is to be prescribed, that standard or other thing is deemed to be prescribed within the meaning of that paragraph.

Marginal note:Minister’s consent required

• 149 (1) No proceeding in respect of an offence under this Part may be instituted except with the consent of the Minister or a person designated by the Minister.

• Marginal note:Officers and senior officials, etc.

  (2) If a corporation or a department or other portion of the public service of Canada to which this Part applies commits an offence under this Part, any of the following persons who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable on conviction to the punishment provided for the offence, whether or not the corporation, department or portion of the public service has been prosecuted or convicted:

  • (a) any officer, director, agent or mandatary of the corporation;

  • (b) any senior official in the department or portion of the public service; or

  • (c) any other person exercising managerial or supervisory functions in that corporation, department or portion of the public service.

• Marginal note:Evidence of direction

  (3) On any prosecution for an offence under this Part, a copy of a direction purporting to have been made under this Part and purporting to have been signed by the person authorized under this Part to make the direction is evidence of the direction without proof of the signature or authority of the person by whom it purports to be signed.

• Marginal note:Limitation period

  (4) Proceedings in respect of an offence under this Part may be instituted at any time within but not later than one year after the time when the subject-matter of the proceedings arose.

Marginal note:Venue

150 A complaint or information in respect of an offence under this Part may be heard, tried and determined by a provincial court judge or justice if the accused is resident or carrying on business within the territorial jurisdiction of the provincial court judge or justice, notwithstanding that the matter of the complaint or information did not arise in that territorial jurisdiction.

Marginal note:Information

151 In any proceedings in respect of an offence under this Part, an information may include more than one offence committed by the same person and all those offences may be tried concurrently and one conviction for any or all such offences may be made.

Marginal note:Injunction proceedings

152 The Minister may apply or cause an application to be made to a judge of a superior court or the Federal Court-Trial Division for an order enjoining any person from contravening a provision of this Part, whether or not a prosecution has been instituted for an offence under this Part, or enjoining any person from continuing any act or default for which the person was convicted of an offence under this Part.

Marginal note:Injunction

153 The judge of a court to whom an application under section 152 is made may, in the judge’s discretion, make the order applied for under that section and the order may be entered and enforced in the same manner as any other order or judgment of that court.

Marginal note:Imprisonment precluded in certain cases

• 154 (1) If a person is convicted of an offence under this Part on proceedings by way of summary conviction, no imprisonment may be imposed in default of payment of any fine imposed as punishment.

• Marginal note:Recovery of fines

  (2) Where a person is convicted of an offence under this Part and the fine that is imposed is not paid when required, the prosecutor may, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in a superior court of the province in which the trial was held, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against the person in that court in civil proceedings.

Providing of Information

Marginal note:Notice to provide information

• 155 (1) Where a person is required to provide information for the purposes of this Part, the Minister may require the information to be provided by a notice to that effect served personally or sent by registered mail addressed to the latest known address of the person, and the person shall comply with the notice within such reasonable time as is specified therein.

• Marginal note:Proof of failure to provide information

  (2) A certificate purporting to be signed by the Minister or by a person authorized by the Minister,

  • (a) certifying that a notice was sent by registered mail to the person to whom it was addressed, accompanied by an identified post office certificate of the registration and a true copy of the notice, and

  • (b) certifying that the information has not been provided as requested in the notice sent by the Minister,

  is evidence of the facts set out therein without proof of the signature or official character of the person by whom the certificate purports to be signed.

Powers of the Canada Industrial Relations Board

Marginal note:Complaint to Board

• 156 (1) Despite subsection 14(1), the Chairperson or a Vice-Chairperson of the Board, or a member of the Board appointed under paragraph 9(2)(e), may dispose of any complaint made to the Board under this Part and, in relation to any complaint so made, that person

  • (a) has all the powers, rights and privileges that are conferred on the Board by this Act other than the power to make regulations under section 15; and

  • (b) is subject to all the obligations and limitations that are imposed on the Board by this Act.

• Marginal note:Application of Part I provisions

  (2) The provisions of Part I respecting orders and decisions of and proceedings before the Board under that Part apply in respect of all orders and decisions of and proceedings before the Board or any member thereof under this Part.

Fees

Marginal note:Fees for services, etc.

• 156.1 (1) The Governor in Council may, on the recommendation of the Treasury Board, fix the fees to be paid for services, facilities and products provided by the Minister under this Part or within the purpose of this Part.

• Marginal note:Amount not to exceed cost

  (2) Fees fixed under subsection (1) may not exceed the costs to Her Majesty in right of Canada in respect of those items or matters.

Regulations

Marginal note:Regulations

• 157 (1) Subject to this section, the Governor in Council may make regulations

  • (a) prescribing anything that by this Part is to be prescribed;

  • (a.1) restricting or prohibiting any activity or thing that any provision of this Part contemplates being the subject of regulations; and

  • (b) respecting such other matters or things as are necessary to carry out the provisions of this Part.

• Marginal note:Idem

  (1.1) Where the Governor in Council is of the opinion that a regulation cannot appropriately be made by prescribing a standard or other thing that by a paragraph of sections 125 to 126 is to be prescribed, the Governor in Council may make regulations in relation to the safety and health matters referred to in that paragraph in such manner as the Governor in Council considers appropriate in the circumstances, whether or not the opinion of the Governor in Council is indicated at the time the regulations are made.

• (2) and (2.1) [Repealed, 1993, c. 42, s. 11]

• Marginal note:Ministerial recommendations

  (3) Regulations of the Governor in Council under subsection (1) or (1.1) in respect of occupational safety and health of employees employed

  • (a) on ships, trains or aircraft, while in operation, shall be made on the recommendation of the Minister and the Minister of Transport; or

  • (b) on or in connection with exploration or drilling for or the production, conservation, processing or transportation of oil or gas in frontier lands, as defined in the Canada Petroleum Resources Act, shall be made on the recommendation of

    • (i) the Minister and the Minister of Indian Affairs and Northern Development, and

    • (ii) the Minister of Natural Resources, taking into consideration any recommendations made by the National Energy Board in relation to the regulations.

• Marginal note:Regulations general or specific

  (4) Regulations made under this section may be made applicable to all employment to which this Part applies, to one or more classes of employment to which this Part applies or to such employment in one or more work places.

• Marginal note:Incorporation of standards

  (5) Regulations made under this section incorporating a standard by reference may incorporate the standard as enacted or adopted at a certain date, as amended to a certain date or as amended from time to time.

• Marginal note:Compliance with standards

  (6) Regulations made under this section that prescribe or incorporate a standard but that require the standard to be complied with only to the extent that compliance is practicable or reasonably practicable in circumstances governed by the standard may require the employer to report to a safety officer the reason that full compliance is not practicable or reasonably practicable in particular circumstances.

Marginal note:Provincial Crown corporations

158 The Governor in Council may, by regulation, direct that this Part applies in respect of any employment, or any class or classes of employment, on or in connection with a federal work, undertaking or business set out in the regulation that is, or is part of, a corporation that is an agent of Her Majesty in right of a province, including a corporation whose activities are regulated, in whole or in part, under the Nuclear Safety and Control Act.

Marginal note:Exclusion from application

• 159 (1) The Governor in Council may by regulation exclude, in whole or in part, from the application of any of the provisions of this Part any employment, or any class or classes of employment, on or in connection with a work or undertaking set out in the regulation whose activities are regulated, in whole or in part, pursuant to the Nuclear Safety and Control Act.

• Marginal note:Regulations

  (2) On the recommendation of the Minister after consultation with the Canadian Nuclear Safety Commission, the Governor in Council may make regulations relating to occupational safety and health in relation to employment that is subject to a regulation made pursuant to subsection (1).

Marginal note:Application of certain provisions

160 Subsections 121.2(3) to (8) apply, with such modifications as the circumstances require, in respect of a regulation made pursuant to subsection 159(2) except that the references to “subsection (2)” in subsections 121.2(3) to (6) shall be read as references to subsection 159(2).

161 to 165 [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 4]

PART IIIStandard Hours, Wages, Vacations and Holidays

Interpretation

Marginal note:Definitions

166 In this Part,

collective agreement

convention collective

collective agreement means an agreement in writing containing terms or conditions of employment of employees, including provisions with reference to rates of pay, hours of work and settlement by a third party of disagreements arising in the application of the agreement, between

• (a) an employer or an employers’ organization acting on behalf of an employer, and

• (b) a trade union acting on behalf of the employees in collective bargaining or as a party to an agreement with the employer or employers’ organization; (convention collective)

day

jour

day means any period of twenty-four consecutive hours; (jour)

employer

employeur

employer means any person who employs one or more employees; (employeur)

general holiday

jours fériés

general holiday means New Year’s Day, Good Friday, Victoria Day, Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day and Boxing Day and includes any day substituted for any such holiday pursuant to section 195; (jours fériés)

industrial establishment

établissement

industrial establishment means any federal work, undertaking or business and includes such branch, section or other division of a federal work, undertaking or business as is designated as an industrial establishment by regulations made under paragraph 264(b); (établissement)

inspector

inspecteur

inspector means any person designated as an inspector under section 249; (inspecteur)

order

arrêté

order means any order of the Minister made pursuant to this Part or the regulations; (arrêté)

overtime

heures supplémentaires

overtime means hours of work in excess of standard hours of work; (heures supplémentaires)

qualified medical practitioner

médecin ou médecin qualifié

qualified medical practitioner means a person who is entitled to practise medicine under the laws of a province; (médecin ou médecin qualifié)

regional director

directeur régional

regional director means the director of a regional office of the Department of Human Resources Development or the director’s designated representative; (directeur régional)

standard hours of work

durée normale du travail

standard hours of work means the hours of work established pursuant to section 169 or 170 or in any regulations made pursuant to section 175; (durée normale du travail)

trade union

syndicat

trade union means any organization of employees formed for purposes that include the regulation of relations between employers and employees; (syndicat)

wages

salaire

wages includes every form of remuneration for work performed but does not include tips and other gratuities; (salaire)

week

semaine

week means, in relation to Division I, the period between midnight on Saturday and midnight on the immediately following Saturday. (semaine)

Application

Marginal note:Application of Part

• 167 (1) This Part applies

  • (a) to employment in or in connection with the operation of any federal work, undertaking or business, other than a work, undertaking or business of a local or private nature, in the Yukon Territory, the Northwest Territories or Nunavut;

  • (b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a);

  • (c) to and in respect of any employers of the employees described in paragraph (b);

  • (d) to and in respect of any corporation established to perform any function or duty on behalf of the Government of Canada other than a department as defined in the Financial Administration Act; and

  • (e) to or in respect of any Canadian carrier, as defined in section 2 of the Telecommunications Act, that is an agent of Her Majesty in right of a province.

• Marginal note:Non-application of Division I to certain employees

  (2) Division I does not apply to or in respect of employees who

  • (a) are managers or superintendents or exercise management functions; or

  • (b) are members of such professions as may be designated by regulation as professions to which Division I does not apply.

• Marginal note:Non-application of Division XIV to managers

  (3) Division XIV does not apply to or in respect of employees who are managers.

Marginal note:Saving more favourable benefits

• 168 (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

• Marginal note:Where collective agreement applies exclusively

  (1.1) Divisions II, IV, V and VIII do not apply to an employer and employees who are parties to a collective agreement that confers on employees rights and benefits at least as favourable as those conferred by those respective Divisions in respect of length of leave, rates of pay and qualifying periods for benefits, and, in respect of employees to whom the third party settlement provisions of such a collective agreement apply, the settlement of disagreements relating to those matters is governed exclusively by the collective agreement.

• Marginal note:Sunday

  (2) Nothing in this Part authorizes the doing of any work on Sunday that is prohibited by law.

DIVISION IHOURS OF WORK

Marginal note:Standard hours of work

• 169 (1) Except as otherwise provided by or under this Division

  • (a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and

  • (b) no employer shall cause or permit an employee to work longer hours than eight hours in any day or forty hours in any week.

• Marginal note:Averaging

  (2) Where the nature of the work in an industrial establishment necessitates irregular distribution of the hours of work of an employee, the hours of work in a day and the hours of work in a week may be calculated, in such manner and in such circumstances as may be prescribed by the regulations, as an average for a period of two or more weeks.

• Marginal note:Duration of averaging

  (2.1) The averaged hours of work calculated pursuant to subsection (2) remain in effect

  • (a) where the averaging of hours of work is agreed to in writing by an employer and a trade union, for the duration of that agreement or for such shorter period as is agreed to by the parties; or

  • (b) where the averaging of hours of work is not agreed to in writing by an employer and a trade union, for no longer than three years.

• Marginal note:General holidays in week

  (3) In a week in which one or more general holidays occur that under Division V entitle an employee to holidays with pay in that week, the hours of work of the employee in that week shall be reduced by the standard hours of work for each general holiday in that week and, for the purposes of this subsection, in calculating the time worked by an employee in any such week, no account shall be taken of any time worked by the employee on the holidays or of any time during which the employee was at the disposal of his employer during the holidays.

Marginal note:Modified work schedule

• 170 (1) An employer may, in respect of employees subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

  • (b) the schedule, or its modification or cancellation, is agreed to in writing by the employer and the trade union.

• Marginal note:Idem

  (2) Subject to subsection (3), an employer may, in respect of employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if

  • (a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and

  • (b) the schedule, or its modification or cancellation, has been approved by at least seventy per cent of the affected employees.

• Marginal note:Posting of notice

  (3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.

Marginal note:Maximum hours of work

• 171 (1) An employee may be employed in excess of the standard hours of work but, subject to sections 172, 176 and 177, and to any regulations made pursuant to section 175, the total hours that may be worked by any employee in any week shall not exceed forty-eight hours in a week or such fewer total number of hours as may be prescribed by the regulations as maximum working hours in the industrial establishment in or in connection with the operation of which the employee is employed.

• Marginal note:Averaging

  (2) Subsection 169(2) applies in the computation of the maximum hours of work in a week prescribed under this section.