Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2)

Short Title

Marginal note:Short title

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

Interpretation

Marginal note:Definitions

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

  adjudicator

  adjudicator means a person or board of adjudication to whom a grievance is referred under paragraph 223(2)(a), (b) or (c). (arbitre de grief)

  arbitral award

  arbitral award means an award made by an arbitration board in respect of a dispute. (décision arbitrale)

  arbitration board

  arbitration board means a board established under Division 9 of Part 1. (conseil d’arbitrage)

  bargaining agent

  bargaining agent means an employee organization that is certified by the Board as the bargaining agent for the employees in a bargaining unit. (agent négociateur)

  bargaining unit

  bargaining unit means a group of two or more employees that is determined by the Board to constitute a unit of employees appropriate for collective bargaining. (unité de négociation)

  Board

  Board means the Federal Public Sector Labour Relations and Employment Board referred to in subsection 4(1) of the Federal Public Sector Labour Relations and Employment Board Act. (Commission)

  Chairperson

  Chairperson means the Chairperson of the Board. (président)

  collective agreement

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

  core public administration

  core public administration has the same meaning as in subsection 11(1) of the Financial Administration Act. (administration publique centrale)

  council of employee organizations

  council of employee organizations means a council formed by two or more employee organizations within the meaning of paragraph (a) of the definition employee organization or by two or more employee organizations within the meaning of paragraph (b) of that definition. (regroupement d’organisations syndicales)

  deputy head

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

  dispute

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

  employee

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

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

  • (b) a person locally engaged outside Canada;

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

  • (d) a person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act;

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

  • (f) a person employed on a casual basis;

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

  • (h) an employee of the Administrative Tribunals Support Service of Canada who provides any of the following services exclusively to the Board:

    • (i) mediation and dispute resolution services,

    • (ii) legal services,

    • (iii) advisory services relating to the Board’s exercise of its powers and performance of its duties and functions;

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

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

  employee organization

  employee organization means

  • (a) in respect of employees who are not RCMP members or reservists, an organization of employees that has as one of its purposes the regulation of relations between the employer and its employees for the purposes of Parts 1 and 2; and

  • (b) in respect of employees who are RCMP members or reservists, an organization of those employees that has as one of its purposes the regulation of relations between the employer and its employees for the purposes of Parts 1, 2 and 2.1. (organisation syndicale)

  employer

  employer means Her Majesty in right of Canada as represented by

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

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

  managerial or confidential position

  managerial or confidential position means a position declared to be a managerial or confidential position by an order made by the Board under subsection 62(1), section 63, subsection 74(1) or section 75. (poste de direction ou de confiance)

  member

  member means a member of the Board, whether full-time or part-time. (commissaire)

  membership dues

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

  Minister

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

  National Joint Council

  National Joint Council means the National Joint Council whose establishment was authorized by Order in Council P.C. 3676, dated May 16, 1944. (Conseil national mixte)

  public service

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

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

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

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

  RCMP member

  RCMP member, except in Division 2 of Part 2.1, means a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act who is appointed to a rank. (membre de la GRC)

  reservist

  reservist means a person who is appointed as a reservist under regulations made under subsection 11(1) of the Royal Canadian Mounted Police Act. (réserviste)

  separate agency

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

  strike

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

  Vice-Chairperson

  Vice-Chairperson means a Vice-Chairperson of the Board. (vice-président)

• Marginal note:Employment status preserved

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

• Marginal note:Persons who are not employees

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

  • (a) the person is engaged under section 30 of the Federal Public Sector Labour Relations and Employment Board Act; or

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

• Marginal note:Casual employment

  (4) For the purposes of paragraph (f) of the definition employee in subsection (1) and paragraph (e) of the definition employee in subsection 206(1), a person employed in the part of the public service to which the Public Service Commission has the exclusive right to make appointments is employed on a casual basis if the person was appointed under section 50 of the Public Service Employment Act.

• Marginal note:References to occupants of positions

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

• Marginal note:Reference to employee organization

  (6) Unless the context otherwise requires, a reference to an employee organization includes a reference to a council of employee organizations, and a reference to an employee organization within the meaning of paragraph (a) or (b), as the case may be, of the definition employee organization in subsection 2(1) includes a reference to a council formed by two or more employee organizations within the meaning of that paragraph.

Marginal note:Descriptive cross- references

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

PART 1Labour Relations

Interpretation

Marginal note:Definitions

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

  essential service

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

  essential services agreement

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

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

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

  • (c) the specific positions that are necessary for that purpose. (entente sur les services essentiels)

  mediator

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

  National Joint Council

  National Joint Council[Repealed, 2017, c. 9, s. 4]

  parties

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

  public interest commission

  public interest commission means a commission established under Division 10. (commission de l’intérêt public)

• Marginal note:When position is necessary

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

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

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

DIVISION 1Employee Freedoms

Marginal note:Employee freedoms

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

DIVISION 2Management Rights

Marginal note:Right of Treasury Board preserved

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

Marginal note:Right of employer preserved

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

Marginal note:Right of Commissioner of Royal Canadian Mounted Police preserved

7.1 Nothing in this Act is to be construed as affecting the right or authority of the Commissioner of the Royal Canadian Mounted Police under the Royal Canadian Mounted Police Act to ensure that police operations are effective.

DIVISION 3Consultation Committees and Co-Development

Marginal note:Consultation committee

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

• (a) harassment in the workplace; and

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

Marginal note:Meaning of co-development of workplace improvements

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

Marginal note:Co-development of workplace improvements

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

Marginal note:National Joint Council

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

• Marginal note:Facilities and administrative support

  (2) The Chief Administrator of the Administrative Tribunals Support Service of Canada is to provide facilities and administrative support to the National Joint Council.

DIVISION 4Federal Public Sector Labour Relations and Employment Board

Marginal note:Administration of Act

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

Marginal note:Adjudication services

13 The Board is to provide adjudication services that consist of the hearing of applications and complaints made under this Part and Division 1 of Part 2.1, the referral of grievances to adjudication in accordance with Part 2 and Division 2 of Part 2.1 and the hearing of matters brought before the Board under Part 3.

Marginal note:Mediation services

14 The Board is to provide mediation services that consist of

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

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

• (c) mediating in relation to grievances; and

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

15 [Repealed, 2014, c. 20, s. 481]

Marginal note:Powers

16 The Board has, in relation to any matter before it, the power to

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

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

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

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

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

• (f) authorize any person to do anything that the Board may do under paragraphs (a) to (e) and require the person to report to it on what the person has done.

17 [Repealed, 2013, c. 40, s. 367]

18 [Repealed, 2013, c. 40, s. 367]

19 [Repealed, 2013, c. 40, s. 367]

20 [Repealed, 2013, c. 40, s. 367]

21 [Repealed, 2013, c. 40, s. 367]

22 [Repealed, 2013, c. 40, s. 367]

23 [Repealed, 2013, c. 40, s. 367]

24 [Repealed, 2013, c. 40, s. 367]

25 [Repealed, 2013, c. 40, s. 367]

26 [Repealed, 2013, c. 40, s. 367]

27 [Repealed, 2013, c. 40, s. 367]

28 [Repealed, 2013, c. 40, s. 367]

29 [Repealed, 2013, c. 40, s. 367]

30 [Repealed, 2013, c. 40, s. 367]

31 [Repealed, 2013, c. 40, s. 367]

32 [Repealed, 2013, c. 40, s. 367]

33 [Repealed, 2013, c. 40, s. 367]

34 [Repealed, 2013, c. 40, s. 367]

35 [Repealed, 2013, c. 40, s. 367]

36 [Repealed, 2013, c. 40, s. 367]

37 [Repealed, 2013, c. 40, s. 367]

38 [Repealed, 2013, c. 40, s. 367]

Marginal note:Authority to make regulations

39 The Board may make regulations concerning

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

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

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

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

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

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

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

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

• (i) to (k) [Repealed, 2013, c. 40, s. 368]

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

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

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

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

• (m) any other matter that is incidental or conducive to the attainment of the objects of this Part or Division 1 of Part 2.1.

40 [Repealed, 2013, c. 40, s. 369]

41 [Repealed, 2013, c. 40, s. 369]

Marginal note:Scope of orders

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

Marginal note:Review of orders and decisions

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

• Marginal note:Exception

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

44 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

45 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

46 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

47 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

48 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

49 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

50 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

51 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

52 [Repealed, 2013, c. 40, s. 370, as amended by 2013, c. 40, s. 467]

53 [Repealed, 2013, c. 40, s. 298]

DIVISION 5Bargaining Rights

Certification of Bargaining Agents

Application for Certification

Marginal note:Right to apply

54 Subject to section 55, an employee organization within the meaning of paragraph (a) of the definition employee organization in subsection 2(1) that seeks to be certified as bargaining agent for a group of employees that it considers constitutes a unit that is appropriate for collective bargaining may apply to the Board, in accordance with the regulations, for certification as bargaining agent for the proposed bargaining unit. The Board must notify the employer of the application without delay.

Marginal note:Agreements for term of two years or less

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

• Marginal note:Agreements for term of more than two years

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

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

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

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

• Marginal note:Agreements for an indefinite term

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

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

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

Marginal note:Continuation of terms and conditions

56 After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer is not authorized, except under a collective agreement or with the consent of the Board, to alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

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

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

Determination of Appropriate Bargaining Units

Marginal note:Determination of unit

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

• Marginal note:Consideration of employer’s classification

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

• Marginal note:Unit co-extensive with occupational groups

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

• Marginal note:Composition of bargaining unit

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

Marginal note:Determination of questions of membership in bargaining units

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

Managerial or Confidential Positions

Marginal note:Application

• 59 (1) After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that

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

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

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

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

  • (e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2 or Division 2 of Part 2.1;

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

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

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

• Marginal note:Content of application

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

Marginal note:Copy to employee organization

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

Marginal note:Objection

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

Marginal note:Decision on objection

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

• Marginal note:Burden of proof on employee organization

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

• Marginal note:Burden of proof on employer

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

Marginal note:When no objection filed

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

Certification

Marginal note:Conditions for certification

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

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

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

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

• (1.1) [Repealed, 2017, c. 12, s. 8]

• Marginal note:Where previous application denied within six months

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

• Marginal note:Membership in council of employee organizations

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

Marginal note:Representation vote

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

• Marginal note:Arrangements for vote

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

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

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

Where Certification Prohibited

Marginal note:Employer participation

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

• Marginal note:Discrimination

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

Effect of Certification

Marginal note:Effect of certification

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

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

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

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

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

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

Marginal note:Termination of existing collective agreement or arbitral award

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

Marginal note:Rights of previous or new bargaining agent

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

Changes to Certification

Review of Bargaining Units

Marginal note:Review of structure of bargaining units

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

• Marginal note:Unit co-extensive with occupational groups

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

• Marginal note:Limitation

  (3) Despite subsection (1), the Board is not permitted to review the structure of the bargaining unit determined under section 238.14.

Managerial or Confidential Positions

Marginal note:Application

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

• Marginal note:Content of application

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

Marginal note:Copy to bargaining agent

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

Marginal note:Objection

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

Marginal note:Decision on objection

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

• Marginal note:Burden of proof on bargaining agent

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

• Marginal note:Burden of proof on employer

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

Marginal note:When no objection filed

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

Marginal note:Membership dues

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

• Marginal note:Remission of dues to occupant of position

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

• Marginal note:Remission of dues to bargaining agent

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

Marginal note:Application for revocation of order

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

• Marginal note:Copy to employer

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

Marginal note:Decision

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

• Marginal note:Burden of proof on bargaining agent

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

Successor Rights and Obligations

Marginal note:Mergers, amalgamations and transfers of jurisdiction

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

• Marginal note:Board to determine questions

  (2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or Division 1 of Part 2.1 or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

• Marginal note:Inquiry and votes

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

Marginal note:Definitions

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

conversion

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

new separate agency

new separate agency means a separate agency established as a result of a conversion or into which is integrated any portion, or part of a portion, of the core public administration as the result of a conversion. (nouvel organisme distinct)

Marginal note:Continuation of collective agreement or arbitral award

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

Marginal note:Parties may amend

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

Marginal note:Application for certification

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

Marginal note:Power of Board

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

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

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

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

• Marginal note:When application may be made

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

Marginal note:Application for leave to give notice to bargain collectively

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

• Marginal note:When application may be made

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

Marginal note:Application for leave to give notice to bargain collectively

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

• Marginal note:When application may be made

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

Marginal note:Notice to bargain given before conversion

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

Marginal note:Duty to observe terms and conditions

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

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

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

Marginal note:Application and notice to bargain

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

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

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

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

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

Marginal note:Inquiry and votes

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

Marginal note:Consideration of employer’s classification

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

• Marginal note:Unit co-extensive with occupational groups

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

Marginal note:Determination of questions of membership in bargaining units

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

Marginal note:Employer participation

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

• Marginal note:Discrimination

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

Revocation of Certification

Marginal note:When employee organization no longer represents employees

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

• Marginal note:When application may be made

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

Marginal note:Taking of representation vote

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

Marginal note:Revocation of certification

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

Marginal note:Certification obtained by fraud

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

Marginal note:Employer participation or discrimination

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

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

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

Marginal note:Abandonment of certification

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

Marginal note:Council of employee organizations

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

• Marginal note:Additional circumstances

  (2) The circumstances set out in subsection (1) apply in addition to the circumstances in which a certification may be revoked under sections 94 to 99 and section 238.17.

Marginal note:Effect of revocation

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

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

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

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

• Marginal note:Determination of rights of bargaining agent

  (2) If the certification of an employee organization is revoked by the Board under section 96, any of sections 98 to 100 or section 238.17, the Board must, on application by the employee organization or any employee organization that is substituted in the place of a bargaining agent under paragraph 67(c), determine any question as to any right or duty of the employee organization or of the substituted employee organization.

Marginal note:Direction

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

DIVISION 6Choice of Process for Dispute Resolution

Marginal note:Choice of process

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

• Marginal note:Recording of process

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

• Marginal note:Period during which process to apply

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

Marginal note:Change of process

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

• Marginal note:Recording of change

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

• Marginal note:Effective date and duration

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

DIVISION 7Collective Bargaining and Collective Agreements

Negotiation of Collective Agreements

Notice to Bargain Collectively

Marginal note:Notice to bargain collectively

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

• Marginal note:When notice may be given

  (2) The notice to bargain collectively may be given

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

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

• (2.1) [Repealed, 2018, c. 24, s. 7]

• Marginal note:Copy of notice to Board

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

Effect of Notice

Marginal note:Duty to bargain in good faith

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

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

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

Marginal note:Duty to observe terms and conditions

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

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

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

Mediation

Marginal note:Appointment of mediator

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

• Marginal note:Recommendations

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

Collective Bargaining for Two or More Units

Marginal note:Negotiation of single collective agreement

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

• Marginal note:Election not changeable

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

Two-tier Bargaining

Marginal note:Two-tier bargaining

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

• Marginal note:More than one department or portion

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

• Marginal note:Duty to bargain in good faith

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

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

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

Collective Agreements

Authority to Enter into Agreement

Marginal note:Authority of Treasury Board

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

Marginal note:Authority of separate agency

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

Restriction on Content of Collective Agreement

Marginal note:Collective agreement not to require legislative implementation

113 A collective agreement that applies to a bargaining unit — other than a bargaining unit determined under section 238.14 — must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

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

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

Duration and Effect

Marginal note:Agreement is binding

114 Subject to and for the purposes of this Part and Division 1 of Part 2.1, a collective agreement is binding on the employer, the bargaining agent and every employee in the bargaining unit on and after the day on which it has effect. To the extent that the collective agreement deals with matters referred to in section 12 of the Financial Administration Act, the collective agreement is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

Marginal note:When agreement has effect

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

• (a) the effective date specified in it; or

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

Marginal note:Minimum duration

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

Marginal note:Duty to implement provisions of the collective agreement

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

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

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

Amendments

Marginal note:Parties may amend

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

DIVISION 8Essential Services

Marginal note:Application of Division

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

Marginal note:Employer determines levels of service

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

Marginal note:Proportion of duties may vary during strike

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

• Marginal note:Determination of number of necessary employees

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

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

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

Marginal note:Obligation to negotiate

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

• Marginal note:Timing

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

Marginal note:Application to the Board

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

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

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

• Marginal note:Delay

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

• Marginal note:Powers of Board

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

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

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

• Marginal note:Restriction

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

• Marginal note:Proportion of duties may vary during strike

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

• Marginal note:Determination of number of necessary employees

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

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

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

• Marginal note:Application relating to specific position

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

Marginal note:Coming into force of agreement

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

Marginal note:Duration

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

Marginal note:Notice to negotiate amendment

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

• Marginal note:Timing

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

Marginal note:Application to Board

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

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

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

• Marginal note:Delay

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

• Marginal note:Amendment by Board

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

• Marginal note:Restriction

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

• Marginal note:Proportion of duties may vary during strike

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

• Marginal note:Determination of number of necessary employees

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

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

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

• Marginal note:Application relating to specific position

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

Marginal note:Coming into force of amendment

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

Marginal note:Replacement positions

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

• Marginal note:Effect of notice

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

Marginal note:Notification of employees

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

• Marginal note:Notification of change

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

Marginal note:Emergency application

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

Marginal note:Duty to observe terms and conditions

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

Marginal note:Extension of time

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

Marginal note:Filing of essential services agreement

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

DIVISION 9Arbitration

Application of Division

Marginal note:Application

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

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

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

Request for Arbitration

Marginal note:Request for arbitration

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

• Marginal note:When request may be made

  (2) The request may be made

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

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

• Marginal note:Contents of notice

  (3) The party requesting arbitration must

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

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

• Marginal note:Notice to other party

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

• Marginal note:Request for arbitration of additional matters

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

• Marginal note:Notice to include proposal

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

Establishment of Arbitration Board

Marginal note:Establishment

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

• Marginal note:Delay

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

Marginal note:Constitution

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

Marginal note:Board with single member

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

Marginal note:Board with three members

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

• Marginal note:Failure to nominate

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

• Marginal note:Appointment of chairperson nominated by parties

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

• Marginal note:Failure to nominate

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

Marginal note:Eligibility

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

Marginal note:Notification of establishment

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

• Marginal note:Effect of notification

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

Marginal note:Death, incapacity or resignation of single member

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

• Marginal note:Vacancy — board with three members

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

Referral to Arbitration

Marginal note:Referral to arbitration

• 144 (1) Subject to sections 150 and 238.22, after establishing the arbitration board, the Chairperson must without delay refer the matters in dispute to the board.

• Marginal note:Subsequent agreement

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

Duty and Powers

Marginal note:Assistance to parties

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

Marginal note:Procedure

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

• Marginal note:Quorum and absence of members

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

Marginal note:Powers

• 147 (1) The arbitration board has all the powers of the Board set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(a) and (d) to (f) of the Federal Public Sector Labour Relations and Employment Board Act.

• Marginal note:Delegation

  (2) The arbitration board may authorize any person to exercise any of its powers set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(d) and (e) of the Federal Public Sector Labour Relations and Employment Board Act, and require that person to report to it on the exercise of those powers.

Making of Arbitral Award

Marginal note:Factors to be considered

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

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

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

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

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

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

Marginal note:Making of arbitral award

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

• (1.1) [Repealed, 2018, c. 24, s. 11]

• Marginal note:Award to be signed

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

Marginal note:Award not to require legislative implementation

• 150 (1) An arbitral award that applies to a bargaining unit — other than a bargaining unit determined under section 238.14 — must not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if

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

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

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

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

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

• Marginal note:Matters not negotiated

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

Marginal note:Decision of majority

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

• Marginal note:Decision where majority cannot agree

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

Marginal note:Form of award

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

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

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

Marginal note:Copy sent to parties

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

Duration and Operation of Arbitral Award

Marginal note:Binding effect

154 Subject to and for the purposes of this Part and Division 1 of Part 2.1, as of the day on which it is made, the arbitral award binds the employer and the bargaining agent that are parties to it and the employees in the bargaining unit in respect of which the bargaining agent has been certified. To the extent that it deals with matters referred to in section 12 of the Financial Administration Act, the arbitral award is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.

Marginal note:When arbitral award has effect

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

• Marginal note:Limitation on retroactive effect

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

• Marginal note:Effect on previous collective agreement or award

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

Marginal note:Term of arbitral award

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

• Marginal note:Factors

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

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

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

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

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

• Marginal note:Limitation on term

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

Implementation

Marginal note:Duty to implement provisions of the arbitral award

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

Matters Not Dealt With

Marginal note:Reference of matters not dealt with

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

158.1 [Repealed, 2018, c. 24, s. 12]

Amendment

Marginal note:Amendment

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

DIVISION 10Conciliation

Application of Division

Marginal note:Application

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

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

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

Request for Conciliation

Marginal note:Request for conciliation

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

• Marginal note:Contents of notice

  (2) The party requesting conciliation must

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

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

• Marginal note:Notice to other party

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

• Marginal note:Request for conciliation of additional matters

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

• Marginal note:Notice to include proposal

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

Establishment of Public Interest Commission

Marginal note:Recommendation to establish

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

• Marginal note:Delay

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

• Marginal note:Refusal

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

Marginal note:Chairperson’s initiative

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

• Marginal note:Notice

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

Marginal note:Constitution

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

• Marginal note:Request for commission of three members

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

Marginal note:List

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

• Marginal note:Contents

  (2) The list must set out

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

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

Marginal note:Commission with single member

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

• Marginal note:Appointment

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

Marginal note:Commission with three members

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

• Marginal note:Failure to nominate

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

• Marginal note:Appointment of chairperson nominated by parties

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

• Marginal note:Failure to nominate

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

• Marginal note:Appointment

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

Marginal note:Eligibility

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

Marginal note:Notification of establishment

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

• Marginal note:Effect of notification

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

Marginal note:Death, incapacity or resignation of single member

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

• Marginal note:Vacancy — commission with three members

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

Marginal note:Delivery of notice

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

Powers and Functions

Marginal note:Assistance to parties

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

Marginal note:Procedure

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

• Marginal note:Quorum and absence of members

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

Marginal note:Powers

• 174 (1) The public interest commission has all the powers of the Board set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(a) and (d) to (f) of the Federal Public Sector Labour Relations and Employment Board Act.

• Marginal note:Delegation

  (2) The public interest commission may authorize any person to exercise any of its powers set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(d) and (e) of the Federal Public Sector Labour Relations and Employment Board Act, and require that person to report to it on the exercise of those powers.

Marginal note:Factors to be considered

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

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

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

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

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

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

Report

Marginal note:Report to Chairperson

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

• (1.1) and (1.2) [Repealed, 2018, c. 24, s. 18]

• Marginal note:Report to be signed

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

Marginal note:Report not to require legislative implementation

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

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

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

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

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

• Marginal note:Matters not negotiated

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

Marginal note:Findings and recommendations of majority

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

• Marginal note:Findings and recommendations when majority cannot agree

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

Marginal note:Reconsideration of matters contained in report

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

Marginal note:Copy of report to be sent to parties

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

Marginal note:Agreement to be bound

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

Alternate Dispute Resolution Process

Marginal note:Alternate dispute resolution process

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

• Marginal note:Alternate process applicable only to terms referred to it

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

• Marginal note:Agreement not unilaterally changeable

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

• Marginal note:Form of determination

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

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

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

• Marginal note:Binding effect

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

• Marginal note:Eligibility

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

Vote on Employer’s Offer

Marginal note:Minister may order vote to be held

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

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

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

• Marginal note:Vote does not delay right

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

• Marginal note:Consequences of favourable vote

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

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

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

• Marginal note:Powers respecting vote

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

DIVISION 11Strike Votes

Marginal note:Secret ballot vote

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

• Marginal note:Application to have vote declared invalid

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

• Marginal note:Dismissal of application

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

• Marginal note:New vote

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

DIVISION 12Unfair Labour Practices

Marginal note:Meaning of unfair labour practice

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

Marginal note:Unfair labour practices — employer

• 186 (1) No employer, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall

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

  • (b) discriminate against an employee organization.

• Marginal note:Unfair labour practices — employer

  (2) No employer, no person acting on the employer’s behalf, and, whether or not they are acting on the employer’s behalf, no person who occupies a managerial or confidential position and no person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer, shall

  • (a) refuse to employ or to continue to employ, or suspend, lay off, discharge for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

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

    • (ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2 or 2.1,

    • (iii) has made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or

    • (iv) has exercised any right under this Part or Part 2 or 2.1;

  • (b) impose, or propose the imposition of, any condition on an appointment, or in an employee’s terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2 or 2.1; or

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

    • (i) testifying or otherwise participating in a proceeding under this Part or Part 2 or 2.1,

    • (ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2 or 2.1, or

    • (iii) making an application or filing a complaint under this Part or Division 1 of Part 2.1 or presenting a grievance under Part 2 or Division 2 of Part 2.1.

• Marginal note:Exception

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

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

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

• Marginal note:Exception

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

  • (a) if the employer or person is acting in accordance with this Part or Division 1 of Part 2.1, or a regulation, a collective agreement or an arbitral award; or

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

• Marginal note:Exception

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

• Marginal note:Exception

  (6) The employer or a person does not commit an unfair labour practice under any of paragraphs (1)(a) or (b) or (2)(a) to (c) by reason only of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position or to a person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer.

Marginal note:Unfair representation by bargaining agent

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

Marginal note:Unfair labour practices — employee organizations

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

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

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

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

• (d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or 2.1 or having refused to perform an act that is contrary to this Part or Division 1 of Part 2.1; or

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

  • (i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2 or 2.1,

  • (ii) made an application or filed a complaint under this Part or Division 1 of Part 2.1 or presented a grievance under Part 2 or Division 2 of Part 2.1, or

  • (iii) exercised any right under this Part or Part 2 or 2.1.

Marginal note:Unfair labour practices — persons

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

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

  • (b) to refrain from exercising any other right under this Part or Part 2 or 2.1.

• Marginal note:Exception

  (2) A person does not commit an unfair labour practice referred to in subsection (1) by reason of any act or thing done or omitted in relation to a person who occupies, or who is proposed to occupy, a managerial or confidential position or to a person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or who occupies a position held by such an officer.

DIVISION 13Complaints

Marginal note:Complaints

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

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

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

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

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

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

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

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

• Marginal note:Time for making complaint

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

• Marginal note:Limitation on complaints against employee organizations

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

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

  • (b) the employee organization

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

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

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

• Marginal note:Exception

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

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

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

Marginal note:Duty and power of the Board

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

• Marginal note:Refusal to determine complaint involving collective agreement

  (2) The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 or Division 2 of Part 2.1 by the complainant.

• Marginal note:Burden of proof

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

Marginal note:Orders

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

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

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

    • (i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on the employer’s behalf has refused to employ or continue to employ, has suspended, transferred, laid off, discharged for the promotion of economy and efficiency in the Royal Canadian Mounted Police or otherwise discriminated against, or discharged contrary to that paragraph,

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

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

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

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

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

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

• Marginal note:Person acting on behalf of employer

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

• Marginal note:Person acting on behalf of employee organization

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

DIVISION 14Prohibitions and Enforcement

Acts of Officers and Representatives of Employee Organizations

Marginal note:Acts deemed to be those of employee organization

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

Prohibitions Relating to Strikes

Marginal note:Declaration or authorization of strike prohibited

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

• Marginal note:Essential services

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

Marginal note:Non-employees

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

Marginal note:Participation prohibited

196 No employee shall participate in a strike if the employee

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Marginal note:Right to strike limited during period between Parliaments

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

• Marginal note:Tabling in Parliament

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

• Marginal note:Declaration or authorization of strike prohibited during deferred period

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

• Marginal note:Participation prohibited during deferred period

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

Declarations and Orders Relating to Strikes

Marginal note:Application for declaration that conduct is unlawful

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

• Marginal note:Declaration that strike unlawful and strike prohibited

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

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

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

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

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

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

• Marginal note:Terms and duration of order

  (3) An order made under subsection (2)

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

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

• Marginal note:Continuation or revocation of order

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

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

  • (b) revoke the order.

Prohibition Relating to Essential Services

Marginal note:Obstruction

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

Prohibition Relating to Counselling

Marginal note:Counselling in respect of peace officer duties

199.1 No employee organization and no officer or representative of an employee organization shall counsel any RCMP member or reservist not to carry out their duties as a peace officer.

Offences and Punishment

Marginal note:Persons

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

Marginal note:Employees

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

Marginal note:Employee organizations

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

• Marginal note:Employee organizations

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

• Marginal note:Employee organization

  (3) Every employee organization that contravenes section 199.1 is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

• Marginal note:Prosecution of employee organization

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

Marginal note:Officers and representatives of employee organizations

203 Every officer or representative of an employee organization who contravenes subsection 194(1) or section 199.1 is guilty of an offence and liable on summary conviction to a fine of not more than $10,000.

Marginal note:Employer

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

Marginal note:Consent to prosecution

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

PART 2Grievances

Interpretation

Marginal note:Definitions

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

  employee

  employee means a person employed in the public service, other than

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

  • (b) a person locally engaged outside Canada;

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

  • (d) a person who is an officer as defined in subsection 2(1) of the Royal Canadian Mounted Police Act;

  • (e) a person employed on a casual basis;

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

  • (g) a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act who occupies a managerial or confidential position; or

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

  group grievance

  group grievance means a grievance presented in accordance with section 215. (grief collectif)

  individual grievance

  individual grievance means a grievance presented in accordance with section 208 or 238.24. (grief individuel)

  policy grievance

  policy grievance means a grievance presented in accordance with section 220. (grief de principe)

• Marginal note:Former employees

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

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

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

Conflict Management

Marginal note:Informal conflict management system

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

Individual Grievances

Presentation

Marginal note:Right of employee

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

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

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

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

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Order to be conclusive proof

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

Reference to Adjudication

Marginal note:Reference to adjudication

• 209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the grievance is related to

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

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

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

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

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

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

• Marginal note:Application of paragraph (1)(a)

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

• Marginal note:Designation

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

Marginal note:Reference to adjudication

209.1 In addition to his or her rights under section 209, an employee, other than an employee who occupies a managerial or confidential position or who is not otherwise represented by a bargaining agent, may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction if the employee has suffered physical or psychological harm, property damage or economic loss as the result of — or has otherwise been adversely affected by — the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, and the grievance is related to that contravention.

Marginal note:Notice to Canadian Human Rights Commission

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

• Marginal note:Standing of Commission

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

Marginal note:Notice to Accessibility Commissioner

• 210.1 (1) When an individual grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Standing of Accessibility Commissioner

  (2) The Accessibility Commissioner has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Exception

211 Nothing in section 209 or 209.1 is to be construed or applied as permitting the referral to adjudication of an individual grievance with respect to

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

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

Representation

Marginal note:Right to be represented by employee organization

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

Marginal note:Right to be represented by employee organization

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

Binding Effect

Marginal note:Decision final and binding

214 If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209, 209.1 or 238.25 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken on it.

Group Grievances

Presentation

Marginal note:Right of bargaining agent

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

• Marginal note:Consent required

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

• Marginal note:Single portion

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Order to be conclusive proof

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

Reference to Adjudication

Marginal note:Reference to adjudication

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

Marginal note:Notice to Canadian Human Rights Commission

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

• Marginal note:Standing of Commission

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

Withdrawal from Group Grievance

Marginal note:Notice to Accessibility Commissioner

• 217.1 (1) When a group grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Standing of Accessibility Commissioner

  (2) The Accessibility Commissioner has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Right of employee to withdraw

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

Marginal note:Effect of notice

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

Policy Grievances

Presentation

Marginal note:Right of employer and bargaining agent

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Limitation

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

• Marginal note:Order to be conclusive proof

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

Reference to Adjudication

Marginal note:Reference to adjudication

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

Marginal note:Notice to Canadian Human Rights Commission

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

• Marginal note:Standing of Commission

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

Adjudication

Notice to Board

Marginal note:Notice to Accessibility Commissioner

• 222.1 (1) When a policy grievance has been referred to adjudication and a party to the grievance raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, that party must, in accordance with the regulations, give notice of the issue to the Accessibility Commissioner, as defined in section 2 of that Act.

• Marginal note:Standing of Accessibility Commissioner

  (2) The Accessibility Commissioner has standing in adjudication proceedings for the purpose of making submissions regarding an issue referred to in subsection (1).

Marginal note:Notice

• 223 (1) A party who refers a grievance to adjudication must, in accordance with the regulations, give notice of the reference to the Board.

• Marginal note:Action to be taken by Chairperson

  (2) If the party specifies in the notice that an adjudicator is named in an applicable collective agreement, that an adjudicator has otherwise been selected by the parties or, if no adjudicator is so named or has been selected, that the party requests the establishment of a board of adjudication, then the Chairperson must, on receipt of the notice by the Board,

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

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

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

• Marginal note:Board seized of grievance

  (2.1) If the notice does not specify any of the things described in subsection (2), or if a board of adjudication has been requested and the other party has objected in the time provided for in the regulations, the Board is seized of the grievance.

• Marginal note:Conference

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

Board of Adjudication

Marginal note:Constitution

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

• Marginal note:Ineligibility

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

Jurisdiction

Marginal note:Compliance with procedures

225 No grievance may be referred to adjudication until the grievance has been presented at all required levels in accordance with the applicable grievance process.

Powers

Marginal note:Powers of adjudicator

• 226 (1) An adjudicator may, in relation to any matter referred to adjudication, exercise any of the powers set out in paragraph 16(d) of this Act and sections 20 to 23 of the Federal Public Sector Labour Relations and Employment Board Act.

• Marginal note:Powers of adjudicator and Board

  (2) An adjudicator or the Board may, in relation to any matter referred to adjudication,

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

  • (a.1) interpret and apply the Accessible Canada Act;

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

  • (b.1) give relief in accordance with section 102 of the Accessible Canada Act; and

  • (c) award interest in the case of grievances involving termination, demotion, suspension or financial penalty at a rate and for a period that the adjudicator or the Board, as the case may be, considers appropriate.

227 [Repealed, 2013, c. 40, s. 376]

Decision

Marginal note:Hearing of grievance

• 228 (1) If a grievance is referred to adjudication, the adjudicator or the Board, as the case may be, must give both parties to the grievance an opportunity to be heard.

• Marginal note:Decision on grievance

  (2) After considering the grievance, the adjudicator or the Board, as the case may be, must render a decision, make the order that the adjudicator or the Board consider appropriate in the circumstances, and then send a copy of the order  —  and, if there are written reasons for the decision, a copy of the reasons  —  to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee whose grievance it is belongs. The adjudicator must also deposit a copy of the order and, if there are written reasons for the decision, a copy of the reasons, with the Chairperson.

• Marginal note:Decision of board of adjudication

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

• Marginal note:Decision where majority cannot agree

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

Marginal note:Decision requiring amendment

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

Marginal note:Determination of reasonableness of opinion

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

Marginal note:Determination of consent requirement

231 An adjudicator or the Board, when seized of a grievance referred to in subparagraph 209(1)(c)(ii), may determine any question relating to whether

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

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

Marginal note:Decision in respect of certain policy grievances

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

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

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

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

Marginal note:No review by court

233 Subsections 34(1) and (3) of the Federal Public Sector Labour Relations and Employment Board Act apply, with any necessary modifications, to an adjudicator’s orders and decisions.

Marginal note:Filing of order in Federal Court

• 234 (1) The Board must, on the request in writing of any person who was a party to the proceedings that resulted in an order of an adjudicator or the Board, as the case may be, file a certified copy of the order, exclusive of the reasons for it, in the Federal Court, unless, in the opinion of the Board,

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

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

• Marginal note:Non-application

  (2) Section 35 of the Federal Public Sector Labour Relations and Employment Board Act does not apply to an order of the Board referred to in subsection (1).

• Marginal note:Effect of filing

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

Expenses of Adjudication

Marginal note:Aggrieved employee not represented by agent

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

• Marginal note:Aggrieved employee represented by agent

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

• Marginal note:Recovery

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

No Right of Action

Marginal note:Disputes relating to employment

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

• Marginal note:Application

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

• Marginal note:Exception

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

Regulations

Marginal note:Regulations

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

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

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

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

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

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

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

  • (f.1) the manner of giving notice of an issue to the Accessibility Commissioner under this Part;

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

  • (h) the specification of the time within which and the persons to whom notices and other documents must be sent or given under this Part or Division 2 of Part 2.1, and when the notices are deemed to have been sent, given or received; and

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

• Marginal note:Application of regulations

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

Marginal note:Regulations

238 The Board may make regulations respecting

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

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

PART 2.1Provisions Unique to the Royal Canadian Mounted Police

Interpretation

Marginal note:Definition of RCMP Commissioner

• 238.01 (1) In this Part, RCMP Commissioner means the Commissioner of the Royal Canadian Mounted Police.

• Marginal note:Definition of RCMP member

  (2) In Division 2 of this Part, RCMP member has the meaning assigned by the definition member in subsection 2(1) of the Royal Canadian Mounted Police Act.

Marginal note:Inconsistency with Part 1 or 2

• 238.02 (1) In the event of an inconsistency between a provision of this Part and a provision of Part 1 or 2, the provision of this Part prevails to the extent of the inconsistency.

• Marginal note:Inconsistency — clarification

  (2) Without limiting the generality of subsection (1), section 58, subsections 208(1) and 209(1) and (2) and section 209.1 are inconsistent with this Part.

• Marginal note:Clarification

  (3) For greater certainty,

  • (a) the provisions of Part 1, in so far as they are applicable, apply to employees who are RCMP members or reservists unless there is an indication to the contrary; and

  • (b) the provisions of Part 2, in so far as they are applicable, apply to employees who are RCMP members, as defined in subsection 238.01(2), or reservists unless there is an indication to the contrary.

Marginal note:Employer’s right preserved

238.03 Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board to determine categories of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act.

Marginal note:Duties preserved

238.04 Nothing in this Act is to be construed as affecting any duties of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act who are peace officers, or any duties of reservists who are peace officers, including duties imposed under that Act.

Unique Role as Police Organization

Marginal note:Board’s additional duty

238.05 In administering this Act and in exercising the powers and performing the duties and functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, with regulations made under it or with decisions made in respect of a matter coming before the Board, the Board must, in matters concerning RCMP members and reservists, take into account the unique role of the Royal Canadian Mounted Police as a police organization in protecting public safety and national security and its need to deploy its members and reservists as it sees fit.

DIVISION 1Labour Relations

Adjournment of Proceedings

Marginal note:Prejudice to ongoing investigations or proceedings

• 238.06 (1) The Board must, on the request of the RCMP Commissioner or the employer, adjourn all proceedings in relation to any matter before the Board under this Division or Part 1 that concerns a person who is or was an RCMP member or a reservist if the Board is satisfied that to continue those proceedings would prejudice an ongoing criminal investigation or an ongoing criminal or civil proceeding.

• Marginal note:Maximum period of adjournment

  (2) No adjournment may be for a period of more than 90 days. However, the RCMP Commissioner or the employer may request more than one adjournment in relation to a matter.

Law Enforcement, Public Safety and National Security

Marginal note:Non-disclosure

• 238.07 (1) The RCMP Commissioner may, in connection with any matter or proceeding before the Board under this Division or Part 1 that concerns a person who is or was an RCMP member or a reservist, object to the disclosure to the Board or to a party of any information whose disclosure would, in that Commissioner’s opinion, be injurious to law enforcement, public safety or national security.

• Marginal note:Notice of objection

  (2) If the RCMP Commissioner objects to the disclosure of information under subsection (1), he or she must, as soon as feasible, give written notice of the objection and the reasons for it to the Board and to the parties.

• Marginal note:Other provisions do not apply

  (3) The RCMP Commissioner may object to the disclosure of information under subsection (1) despite any provision of this Act or the Federal Public Sector Labour Relations and Employment Board Act that would otherwise permit the Board to require that the information be disclosed.

• Marginal note:Former judge

  (4) If the RCMP Commissioner objects to the disclosure of information under subsection (1), the Minister must, at the written request of the Board or a party, appoint a former judge of a superior court of a province or the Federal Court to review the information and to make an order under section 238.08.

• Marginal note:Oath of secrecy

  (5) In order to be appointed, the former judge must obtain a security clearance from the Government of Canada and take the oath of secrecy prescribed by regulation.

• Marginal note:Notice of appointment

  (6) The Minister must provide notice to the Board, to the parties and to the RCMP Commissioner when a former judge has been appointed in accordance with subsection (4). The Board, the parties and the RCMP Commissioner may make their representations to the former judge only within 30 days after the day on which the notice is sent or any longer period, not more than 60 days after the day on which the notice is sent, that the former judge may permit.

• Marginal note:Former judge to have access

  (7) The former judge is to have access to the information about which an objection is made under subsection (1) for the purposes of the review.

Marginal note:Order regarding disclosure

• 238.08 (1) Unless the former judge concludes that the disclosure of the information about which an objection is made under subsection 238.07(1) would be injurious to law enforcement, public safety or national security, the former judge must order that the RCMP Commissioner’s objection under section 238.07 to the disclosure of that information be dismissed.

• Marginal note:Disclosure required

  (2) If the former judge concludes that the disclosure of all or part of that information would be injurious to law enforcement, public safety or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the former judge, after considering the public interest in disclosure, must order the RCMP Commissioner to disclose to the Board or to the party, as the case may be, all or that part of that information, a summary of that information or a written admission of facts relating to that information.

• Marginal note:No disclosure required

  (3) If the former judge does not make an order under subsection (1) or order disclosure under subsection (2), they must make an order upholding the RCMP Commissioner’s objection to the disclosure.

• Marginal note:Time limit

  (4) The order of the former judge must be made within 30 days after the day on which the period referred to in subsection 238.07(6) expires or within any longer period, not more than 60 days after the day on which the period referred to in that subsection expires, that the Minister permits.

• Marginal note:Prohibition

  (5) The former judge must not include in their order any information that reveals information that they conclude must not be disclosed, or any information from which that information may be inferred.

• Marginal note:Order final

  (6) The former judge’s order is final and binding.

• Marginal note:Review

  (7) The RCMP Commissioner’s objection is not subject to review except to the extent and in the manner provided under this section.

Marginal note:Protection

• 238.09 (1) No criminal, civil or administrative action or proceeding lies against a former judge, or any person acting on their behalf or under their direction, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the former judge under sections 238.07 and 238.08.

• Marginal note:No summons

  (2) The former judge, or any person acting on their behalf or under their direction, is not, in respect of any matter coming to the knowledge of the former judge or that person as a result of exercising a power or performing a duty or function of the former judge, a competent or compellable witness in any proceeding other than a prosecution for an offence under this Act, the Foreign Interference and Security of Information Act or section 132 or 136 of the Criminal Code.

Marginal note:Use of information

238.1 Information about which an objection is made under subsection 238.07(1) that is disclosed by the RCMP Commissioner to the Board or to a party in connection with the matter or proceeding that gave rise to the objection may be used only in connection with that matter or proceeding.

Marginal note:Memorandum of understanding

238.11 The Chairperson and the RCMP Commissioner may enter into a memorandum of understanding setting out principles and procedures respecting the disclosure of information referred to in subsection 238.07(1) and the protection of that information if it is disclosed.

Marginal note:Disclosure of information — other legal proceedings

• 238.12 (1) If the RCMP Commissioner discloses information about which an objection is made under subsection 238.07(1) to the Board or to a party in connection with the matter or proceeding that gave rise to the objection, the Board or that party is not to be required, in connection with any other criminal, civil or administrative action or proceeding, to give or produce evidence relating to that information.

• Marginal note:Application

  (2) Except as provided by any other Act of Parliament that expressly refers to it, this section applies despite any other Act of Parliament, other than the Access to Information Act and the Privacy Act.

• Marginal note:Section prevails

  (3) This section applies despite subsection 13(1) of the Auditor General Act and subsection 79.3(1) of the Parliament of Canada Act.

Certification of Bargaining Agents

Marginal note:Right to apply

• 238.13 (1) Subject to section 55, an employee organization within the meaning of paragraph (b) of the definition employee organization in subsection 2(1) that seeks to be certified as the bargaining agent for the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists may apply to the Board, in accordance with the regulations, for certification as bargaining agent for that group. The Board must notify the employer of the application without delay.

• Marginal note:Requirements for certification

  (2) The Board may certify an employee organization referred to in subsection (1) as the bargaining agent for the group only if it determines that the employee organization — and, in the case of a council of employee organizations, each employee organization forming the council — meets the following requirements:

  • (a) it has as its primary mandate the representation of employees who are RCMP members;

  • (b) it is not affiliated with a bargaining agent or other association that does not have as its primary mandate the representation of police officers; and

  • (c) it is not certified as bargaining agent for any other group of employees.

• Marginal note:Clarification

  (3) For greater certainty,

  • (a) for the purposes of subsection (2), participation by an employee organization in the National Joint Council is not considered to be an affiliation with a bargaining agent or other association that does not have as its primary mandate the representation of police officers; and

  • (b) no application is permitted to be made under section 54 in respect of employees who are RCMP members or reservists.

Marginal note:Determination of unit

238.14 If an application for certification is made under subsection 238.13(1), the Board must determine that the group that consists exclusively of all the employees who are RCMP members and all the employees who are reservists constitutes the single, national bargaining unit that is appropriate for collective bargaining.

Marginal note:Limitation

238.15 An employee organization that is certified as the bargaining agent for the bargaining unit determined under section 238.14 is not entitled to seek to be certified as bargaining agent for any other group of employees.

Marginal note:Limitation

238.16 Despite section 58, the Board does not have jurisdiction to determine that an employee who is not an RCMP member or a reservist is included in the bargaining unit determined under section 238.14.

Revocation of Certification

Marginal note:Mandate or affiliation

• 238.17 (1) The Board must revoke the certification of an employee organization as the bargaining agent for the bargaining unit determined under section 238.14 if the Board, on application by the employer or any employee in that bargaining unit, determines that the employee organization — or, in the case of a council of employee organizations, any employee organization forming part of the council — no longer has as its primary mandate the representation of employees who are RCMP members or that it is affiliated with a bargaining agent or other association that does not have as its primary mandate the representation of police officers.

• Marginal note:Clarification

  (2) For greater certainty,

  • (a) for the purposes of subsection (1), participation by an employee organization in the National Joint Council is not considered to be an affiliation with a bargaining agent or other association that does not have as its primary mandate the representation of police officers; and

  • (b) the circumstances set out in subsection (1) apply in addition to the circumstances in which a certification may be revoked under sections 94 to 100.

Process for Dispute Resolution

Marginal note:Arbitration

238.18 Sections 103 and 104 do not apply to disputes between the employer and the bargaining agent for the bargaining unit determined under section 238.14. The process for the resolution of those disputes is arbitration.

Restriction on Content of Collective Agreement

Marginal note:Restriction

238.19 A collective agreement that applies to the bargaining unit determined under section 238.14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment or establish any new term or condition of employment if

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

• (b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act.

Essential Services, Conciliation and Strike Votes

Marginal note:Non-application of Divisions 8, 10 and 11 of Part 1

238.2 Divisions 8, 10 and 11 of Part 1 do not apply in respect of the bargaining unit determined under section 238.14.

Arbitration

Marginal note:Arbitral award — additional factor

238.21 In addition to the factors set out in section 148, the arbitration board may, if relevant to making a determination under that section in regards to a collective agreement that applies to the bargaining unit determined under section 238.14, take into account the impact of the determination on the operational effectiveness of the Royal Canadian Mounted Police.

Marginal note:Arbitral award — limitations

• 238.22 (1) The arbitral award that applies to the bargaining unit determined under section 238.14 must not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if

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

  • (b) the term or condition is one that has been or may be established under the Royal Canadian Mounted Police Superannuation Act, the Royal Canadian Mounted Police Pension Continuation Act, the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act; or

  • (c) doing so would affect either of the following:

    • (i) the organization of the public service, the categories of members as defined in subsection 2(1) of the Royal Canadian Mounted Police Act or the assignment of duties to, and the classification of, positions and persons employed in the public service, or

    • (ii) the right or authority of the Commissioner of the Royal Canadian Mounted Police under the Royal Canadian Mounted Police Act to ensure that police operations are effective.

• Marginal note:Clarification

  (2) For greater certainty, subsection 150(2) applies in respect of the arbitral award.

Regulations

Marginal note:Regulations

238.23 The Governor in Council may make regulations

• (a) prescribing the oath of secrecy referred to in subsection 238.07(5); and

• (b) respecting the measures that are to be taken by the Board or a party to protect the information referred to in subsection 238.07(1) that the Board or the party has received from the RCMP Commissioner in connection with any matter or proceeding before the Board under this Division or Part 1 that concerns a person who is or was an RCMP member or a reservist, and respecting the disclosure of that information by the Board or the party to other persons or entities.

DIVISION 2Grievances

Individual Grievances

Marginal note:Limited right to grieve

238.24 Subject to subsections 208(2) to (7), an employee who is an RCMP member is entitled to present an individual grievance only if they feel aggrieved by the interpretation or application, in respect of the employee, of a provision of a collective agreement or arbitral award.

Marginal note:Limited right to refer to adjudication

• 238.25 (1) An employee who is an RCMP member may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction only if the grievance is related to the interpretation or application, in respect of the employee, of a provision of a collective agreement or arbitral award.

• Marginal note:Agreement required

  (2) Before referring an individual grievance to adjudication, the employee must obtain the approval of their bargaining agent to represent the employee in the adjudication proceedings.

• Marginal note:Grievance related to accessibility

  (3) If a grievance referred to in subsection (1) is related to the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act, an employee who is an RCMP member may refer the grievance to adjudication only if the employee has suffered physical or psychological harm, property damage or economic loss as a result of — or has otherwise been adversely affected by — the contravention.

Adjournment of Proceedings

Marginal note:Prejudice to ongoing investigations or proceedings

• 238.26 (1) An adjudicator or the Board must, on the request of the RCMP Commissioner or the employer, adjourn all proceedings in relation to any matter before the adjudicator or the Board under this Division or Part 2 that concerns a person who is or was an RCMP member or a reservist, if the adjudicator or the Board is satisfied that to continue those proceedings would prejudice an ongoing criminal investigation or an ongoing criminal or civil proceeding.

• Marginal note:Maximum period of adjournment

  (2) No adjournment may be for a period of more than 90 days. However, the RCMP Commissioner or the employer may request more than one adjournment in relation to a matter.

Law Enforcement, Public Safety and National Security

Marginal note:Non-disclosure

• 238.27 (1) The RCMP Commissioner may, in connection with any matter or proceeding before an adjudicator or the Board under this Division or Part 2 that concerns a person who is or was an RCMP member or a reservist, object to the disclosure to the adjudicator or the Board, as the case may be, or to a party of any information whose disclosure would, in that Commissioner’s opinion, be injurious to law enforcement, public safety or national security.

• Marginal note:Notice of objection

  (2) If the RCMP Commissioner objects to the disclosure of information under subsection (1), he or she must, as soon as feasible, give written notice of the objection and the reasons for it to the adjudicator or the Board, as the case may be, and to the parties.

• Marginal note:Other provisions do not apply

  (3) The RCMP Commissioner may object to the disclosure of information under subsection (1) despite any provision of this Act or the Federal Public Sector Labour Relations and Employment Board Act that would otherwise permit the adjudicator or the Board, as the case may be, to require that the information be disclosed.

• Marginal note:Former judge

  (4) If the RCMP Commissioner objects to the disclosure of information under subsection (1), the Minister must, at the written request of the adjudicator or the Board, as the case may be, or a party, appoint a former judge of a superior court of a province or the Federal Court to review the information and to make an order under section 238.28.

• Marginal note:Oath of secrecy

  (5) In order to be appointed, the former judge must obtain a security clearance from the Government of Canada and take the oath of secrecy prescribed by regulation.

• Marginal note:Notice of appointment

  (6) The Minister must provide notice to the adjudicator or the Board, as the case may be, to the parties and to the RCMP Commissioner when a former judge has been appointed in accordance with subsection (4). The adjudicator or the Board, as the case may be, the parties and the RCMP Commissioner may make their representations to the former judge only within 30 days after the day on which the notice is sent or any longer period, not more than 60 days after the day on which the notice is sent, that the former judge may permit.

• Marginal note:Former judge to have access

  (7) The former judge is to have access to the information about which an objection is made under subsection (1) for the purposes of the review.

Marginal note:Order regarding disclosure

• 238.28 (1) Unless the former judge concludes that the disclosure of the information about which an objection is made under subsection 238.27(1) would be injurious to law enforcement, public safety or national security, the former judge must order that the RCMP Commissioner’s objection under section 238.27 to the disclosure of that information be dismissed.

• Marginal note:Disclosure required

  (2) If the former judge concludes that the disclosure of all or part of that information would be injurious to law enforcement, public safety or national security but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the former judge, after considering the public interest in disclosure, must order the RCMP Commissioner to disclose to the adjudicator, to the Board or to the party, as the case may be, all or that part of that information, a summary of that information or a written admission of facts relating to that information.

• Marginal note:No disclosure required

  (3) If the former judge does not make an order under subsection (1) or order disclosure under subsection (2), they must make an order upholding the RCMP Commissioner’s objection to the disclosure.

• Marginal note:Time limit

  (4) The order of the former judge must be made within 30 days after the day on which the period referred to in subsection 238.27(6) expires or within any longer period, not more than 60 days after the day on which the period referred to in that subsection expires, that the Minister permits.

• Marginal note:Prohibition

  (5) The former judge must not include in their order any information that reveals information that they conclude must not be disclosed, or any information from which that information may be inferred.

• Marginal note:Order final

  (6) The former judge’s order is final and binding.

• Marginal note:Review

  (7) The RCMP Commissioner’s objection is not subject to review except to the extent and in the manner provided under this section.

Marginal note:Protection

• 238.29 (1) No criminal, civil or administrative action or proceeding lies against a former judge, or any person acting on their behalf or under their direction, for anything done, reported or said in good faith in the exercise or purported exercise of any power, or the performance or purported performance of any duty or function, of the former judge under sections 238.27 and 238.28.

• Marginal note:No summons

  (2) The former judge, or any person acting on their behalf or under their direction, is not, in respect of any matter coming to the knowledge of the former judge or that person as a result of exercising a power or performing a duty or function of the former judge, a competent or compellable witness in any proceeding other than a prosecution for an offence under this Act, the Foreign Interference and Security of Information Act or section 132 or 136 of the Criminal Code.

Marginal note:Use of information

238.3 Information about which an objection is made under subsection 238.27(1) that is disclosed by the RCMP Commissioner to an adjudicator or the Board, as the case may be, or to a party in connection with the matter or proceeding that gave rise to the objection may be used only in connection with that matter or proceeding.

Marginal note:Memorandum of understanding

238.31 The Chairperson and the RCMP Commissioner may enter into a memorandum of understanding setting out principles and procedures respecting the disclosure of information referred to in subsection 238.27(1) and the protection of that information if it is disclosed.

Marginal note:Disclosure of information — other legal proceedings

• 238.32 (1) If the RCMP Commissioner discloses information about which an objection is made under subsection 238.27(1) to an adjudicator or the Board, as the case may be, or to a party in connection with the matter or proceeding that gave rise to the objection, the adjudicator, the Board or that party is not to be required, in connection with any other criminal, civil or administrative action or proceeding, to give or produce evidence relating to that information.

• Marginal note:Application

  (2) Except as provided by any other Act of Parliament that expressly refers to it, this section applies despite any other Act of Parliament, other than the Access to Information Act and the Privacy Act.

• Marginal note:Section prevails

  (3) This section applies despite subsection 13(1) of the Auditor General Act and subsection 79.3(1) of the Parliament of Canada Act.

Unique Role as Police Organization

Marginal note:Consideration

238.33 In considering a grievance that concerns an employee who is an RCMP member or a reservist, the adjudicator or the Board, as the case may be, must take into account the unique role of the Royal Canadian Mounted Police as a police organization in protecting public safety and national security and its need to deploy its members and reservists as it sees fit.

Regulations

Marginal note:Regulations

238.34 The Governor in Council may make regulations

• (a) prescribing the oath of secrecy referred to in subsection 238.27(5); and

• (b) respecting the measures that are to be taken by an adjudicator or the Board, as the case may be, or a party to protect the information referred to in subsection 238.27(1) that the adjudicator, the Board or the party has received from the RCMP Commissioner in connection with any matter or proceeding before the adjudicator or the Board under this Division or Part 2 that concerns a person who is or was an RCMP member or a reservist, and respecting the disclosure of that information by the adjudicator, the Board or the party to other persons or entities.

PART 3Occupational Health and Safety

Interpretation

Marginal note:Meaning of public service

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

Part II of Canada Labour Code

Marginal note:Application to public service

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

• (a) any reference in that Part to

  • (i) “arbitration” is to be read as a reference to adjudication under Part 2 or Division 2 of Part 2.1,

  • (ii) for the purposes of sections 133 and 134 of the Canada Labour Code, Board is to be read as a reference to the Public Service Labour Relations and Employment Board,

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

  • (iv) “employee” is to be read as a reference to a person employed in the public service, and

  • (v) a “trade union” is to be read as a reference to an employee organization within the meaning of subsection 2(1) and includes, unless the context otherwise requires, a council of employee organizations within the meaning of that subsection;

• (b) [Repealed, 2017, c. 20, s. 396]

• (c) the provisions of this Act apply, with any necessary modifications, in respect of matters brought before the Federal Public Sector Labour Relations and Employment Board.

PART 4General

Defects in Proceedings

Marginal note:Defect in form or irregularity

• 241 (1) No proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity.

• Marginal note:Grievance process

  (2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).

Restriction on Admissibility of Evidence

Marginal note:Admissibility

242 Except in the case of a prosecution for perjury,

• (a) testimony or proceedings before an arbitration board are not admissible in evidence in any court in Canada; and

• (b) reports of a public interest commission, and testimony or proceedings before a public interest commission, are not admissible in evidence in any court in Canada.

Protection

Marginal note:Evidence respecting information obtained

243 Members of arbitration boards, members of public interest commissions, mediators, adjudicators and persons seized of referrals under subsection 182(1) are not competent or compellable to appear as witnesses in any civil action, suit or other proceeding respecting information obtained in the discharge of their functions under this Act.

Marginal note:No disclosure of notes and drafts

244 The following may not be disclosed without the consent of the person who made them:

• (a) notes or draft orders or decisions of an adjudicator;

• (b) notes or draft reports of a mediator, a public interest commission or a person authorized or designated by the Board to assist in resolving a complaint or issue in dispute before the Board; and

• (c) notes or a draft arbitral award of an arbitration board.

Marginal note:Criminal or civil proceedings

245 No criminal or civil proceedings lie against a member of an arbitration board, a member of a public interest commission, a mediator, an adjudicator or a person seized of a referral under subsection 182(1) for anything done  —  or omitted to be done  —  or reported or said in good faith in the course of the exercise or performance or purported exercise or performance of any power, duty or function under this Act.

Oaths and Solemn Affirmations

Marginal note:Oath or solemn affirmation

246 Before commencing his or her functions, a person appointed under this Act must take an oath or make a solemn affirmation in the following form before a commissioner of oaths or other person having authority to administer oaths or solemn affirmations:

I, ...................., do swear (or solemnly affirm) that I will faithfully, truly and impartially, to the best of my judgment, skill and ability, execute and perform the office of .....................

Remuneration and Expenses

Marginal note:Remuneration and expenses

• 247 (1) Members of arbitration boards, mediators, adjudicators and persons seized of referrals under subsection 182(1) are entitled to be paid the remuneration and expenses that may be fixed by the Governor in Council.

• Marginal note:Remuneration and expenses

  (2) Members of public interest commissions are entitled to be paid the remuneration and expenses that may be fixed by the Minister.

• Marginal note:Party to pay

  (3) If a public interest commission consists of three members, the remuneration and expenses to be paid to the member of the commission nominated, or deemed to be nominated, by a party is to be paid by that party.

Witness Fees

Marginal note:Payment of witness fees

248 A person who is summoned by an arbitration board, a public interest commission or an adjudicator to attend as a witness at any proceeding under this Act is entitled to receive fees and allowances for so attending that are equal to those to which the person would be entitled if summoned to attend before the Federal Court.

Provision of Facilities and Human Resources

Marginal note:Facilities and human resources

249 The Chief Administrator of the Administrative Tribunals Support Service of Canada must provide members of arbitration boards, members of public interest commissions, mediators, adjudicators and persons seized of referrals under subsection 182(1) with the facilities and human resources necessary to enable them to carry out their functions under this Act.

Application of Safety or Security Provisions

Marginal note:Application of safety or security provisions

• 250 (1) Nothing in this Act or any other Act is to be construed as requiring the employer to do or refrain from doing anything that is contrary to any instruction, direction or regulation given or made by or on behalf of the Government of Canada in the interest of the safety or security of Canada or of any state allied or associated with Canada.

• Marginal note:Order is conclusive proof

  (2) For the purposes of subsection (1), an order made by the Governor in Council is conclusive proof of the matters stated in it in relation to the giving or making of any instruction, direction or regulation by or on behalf of the Government of Canada in the interest of the safety or security of Canada or any state allied or associated with Canada.

251 [Repealed, 2013, c. 40, s. 390]

Five-year Review

Marginal note:Review

252 Five years after the day on which this section comes into force, the minister designated by the Governor in Council for the purposes of this section must cause a review of this Act and its administration and operation to be conducted, and cause a report on the review to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the review is completed.