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

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.