Short Title

Marginal note:Short title

1 This Act may be cited as the Public Service Staff Relations Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  adjudicator

  arbitre de grief

  adjudicator means a member assigned to hear and determine a reference to adjudication and includes, where the context permits, a board of adjudication established under section 94, an adjudicator named in a collective agreement for the purposes of that agreement and an adjudicator otherwise selected by the parties; (arbitre de grief)

  arbitral award

  décision arbitrale

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

  arbitration board

  conseil d’arbitrage

  arbitration board means a board established under section 65; (conseil d’arbitrage)

  arbitrator

  arbitre de différend

  arbitrator means a person appointed under section 65.1; (arbitre de différend)

  bargaining agent

  agent négociateur

  bargaining agent means an employee organization that has been certified by the Board as the bargaining agent for the employees in a bargaining unit and the certification of which has not been revoked; (agent négociateur)

  bargaining unit

  unité de négociation

  bargaining unit means a group of two or more employees that is determined, in accordance with this Act, to constitute a unit of employees appropriate for collective bargaining; (unité de négociation)

  Board

  Commission

  Board means the Public Service Staff Relations Board established by section 11; (Commission)

  Chairperson

  président

  Chairperson means the Chairperson of the Board; (président)

  collective agreement

  convention collective

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

  conciliation board

  bureau de conciliation

  conciliation board means a board established under section 77; (bureau de conciliation)

  conciliation commissioner

  commissaire-conciliateur

  conciliation commissioner means a person appointed under section 77.1; (commissaire-conciliateur)

  conciliator

  conciliateur

  conciliator means a person appointed by the Chairperson under section 53; (conciliateur)

  Deputy Chairperson

  président suppléant

  Deputy Chairperson means a Deputy Chairperson of the Board; (président suppléant)

  designated employee

  designated employee[Repealed, 1992, c. 54, s. 32]

  designated position

  poste désigné

  designated position means a position that is designated pursuant to section 78.1, 78.2 or 78.4 and the designation of which has not been changed pursuant to section 78.4; (poste désigné)

  dispute

  différend

  dispute means a dispute or difference arising in connection with the conclusion, renewal or revision of a collective agreement, in respect of which arbitration is requested pursuant to section 64 or conciliation may be requested pursuant to section 76; (différend)

  employee

  fonctionnaire

  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 whose compensation for the performance of the regular duties of the position or office of the person consists of fees of office, or is related to the revenue of the office in which the person is employed,

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

  • (e) a person who is a member or special constable of the Royal Canadian Mounted Police or who is employed by that Force under terms and conditions substantially the same as those of a member thereof,

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

  • (g) a person employed on a casual basis,

  • (h) 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,

  • (i) a person employed by or under the Board,

  • (j) a person who occupies a managerial or confidential position,

  • (k) a person who is employed in a portion of the public service of Canada specified in Part I of Schedule I under a program designated by the Treasury Board as a student employment program,

  • (l) a person who is employed in the Parks Canada Agency established by the Parks Canada Agency Act under a program designated by the Agency as a student employment program,

  • (m) a person who is employed by the Canada Customs and Revenue Agency under a program designated by the Agency as a student employment program, or

  • (n) a person who is employed by the Canadian Food Inspection Agency established by the Canadian Food Inspection Agency Act under a program designated by the Agency as a student employment program,

  and, for the purposes of this definition, 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 employment of that person contrary to this Act or any other Act of Parliament; (fonctionnaire)

  employee organization

  organisation syndicale

  employee organization means any organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purposes of this Act, and includes, unless the context otherwise requires, a council of employee organizations; (organisation syndicale)

  employer

  employeur

  employer means Her Majesty in right of Canada as represented by,

  • (a) in the case of any portion of the public service of Canada specified in Part I of Schedule I, the Treasury Board, and

  • (b) in the case of any portion of the public service of Canada specified in Part II of Schedule I, the separate employer concerned; (employeur)

  grievance

  grief

  grievance means a complaint in writing presented in accordance with this Act by an employee on his own behalf or on behalf of the employee and one or more other employees, except that

  • (a) for the purposes of any of the provisions of this Act respecting grievances, a reference to an “employee” includes a person who would be an employee but for the fact that the person is a person described in paragraph (f) or (j) of the definition “employee”, and

  • (b) for the purposes of any of the provisions of this Act respecting grievances with respect to termination of employment pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act or disciplinary action resulting in suspension, a reference to an “employee” includes a former employee or a person who would be a former employee but for the fact that at the time of the termination of employment or suspension of that person the person was a person described in paragraph (f) or (j) of the definition “employee”; (grief)

  managerial or confidential position

  poste de direction ou de confiance

  managerial or confidential position means a position

  • (a) 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, the deputy head of a department or the chief executive officer of any other portion of the Public Service,

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

  • (c) of a legal officer in the Department of Justice or the Canada Customs and Revenue Agency,

  • (d) of an employee in the Treasury Board,

  • (e) the occupant of which provides advice on staff relations, staffing or classification,

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

  • (g) identified as such a position pursuant to section 5.1 or 5.2, the identification of which has not been terminated pursuant to section 5.3; (poste de direction ou de confiance)

  member

  commissaire

  member means a member of the Board and includes a full-time member and a part-time member; (commissaire)

  occupational category

  occupational category[Repealed, 1992, c. 54, s. 32]

  parties

  parties

  parties means

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

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

  person employed in a managerial or confidential capacity

  person employed in a managerial or confidential capacity[Repealed, 1992, c. 54, s. 32]

  prescribed

  règlement et réglementaire

  prescribed means prescribed by regulation of the Board; (règlement et réglementaire)

  process for resolution of a dispute

  mode de règlement des différends

  process for resolution of a dispute means the process of referral of a dispute to arbitration or the process of referral of a dispute to conciliation; (mode de règlement des différends)

  Public Service

  fonction publique

  Public Service means the several positions in or under any department or other portion of the public service of Canada specified in Schedule I; (fonction publique)

  remuneration

  rémunération

  remuneration includes a daily or other allowance for the performance of the duties of a position or office; (rémunération)

  separate employer

  employeur distinct

  separate employer means any portion of the public service of Canada specified in Part II of Schedule I; (employeur distinct)

  strike

  grève

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

  Vice-Chairperson

  vice-président

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

• Marginal note:References to occupants of positions

  (2) In this Act, a 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 the position of a person includes a position of a person who is acting in that position or who has assumed wholly or substantially the duties and responsibilities of that position.

Application

Public Service

Marginal note:Application to Public Service

3 This Act applies to all portions of the Public Service.

Additions to and Transfers within Schedule I

Marginal note:Authority to add to Schedule I

4 The Governor in Council may by order add to Part I or Part II of Schedule I the name of any portion of the public service of Canada not otherwise specified in Schedule I,

• (a) to which Part I of the Canada Labour Code does not apply or that has been excluded from the operation of Part I of that Act; and

• (b) in respect of which a minister of the Crown, the Treasury Board or the Governor in Council is authorized to establish or approve some or all of the terms and conditions of employment of persons employed therein.

Marginal note:Authority to transfer within Schedule I

• 5 (1) The Governor in Council may by order delete the name of any portion of the public service of Canada specified in Part I or Part II of Schedule I, and shall thereupon add the name of that portion to the other Part of Schedule I, except that the Governor in Council is not required to add the name of that portion to the other Part of Schedule I where that portion

  • (a) no longer has any employees; or

  • (b) is a corporation that has been excluded from the operation of Part I of the Canada Labour Code.

• Marginal note:Where corporation deleted from one Part of Schedule I and not added to other Part

  (2) Where the Governor in Council deletes from one Part of Schedule I the name of any corporation that has been excluded from the operation of Part I of the Canada Labour Code and does not thereupon add the name of that corporation to the other Part of Schedule I, the exclusion of that corporation from the operation of Part I of that Act ceases to have effect.

Managerial or Confidential Positions

Marginal note:Identification by Board on application for certification

• 5.1 (1) Where, in connection with the application for the certification of an employee organization as a bargaining agent, the Board is satisfied that any position of an employee in the group of employees for which certification is sought meets any of the following criteria, it shall identify the position as a managerial or confidential position:

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

  • (b) a position the occupant of which has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with a grievance presented in accordance with the grievance process provided for by this Act;

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

  • (d) a position the occupant of which has duties and responsibilities not otherwise described in this subsection and who in the opinion of the Board 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; and

  • (e) a position the occupant of which has, in relation to staff relations matters, duties and responsibilities confidential to a position described in paragraph (a), (b) or (c).

• Marginal note:Notice of identification

  (2) Where the Board identifies a position pursuant to subsection (1), it shall notify the employee organization and the employer in writing of the identification.

Marginal note:Identification by employer

• 5.2 (1) Where, before or after the coming into force of this section, a bargaining agent has been certified by the Board, the employer may, in the prescribed manner, identify any position described in subsection 5.1(1) of an employee in the bargaining unit for which the bargaining agent was certified as a managerial or confidential position, and for the purpose of that identification the reference in paragraph 5.1(1)(d) to the Board shall be construed as a reference to the employer.

• Marginal note:Notice of identification

  (2) Where the employer identifies a position pursuant to subsection (1), it shall notify the Board and the bargaining agent in writing of the identification.

• Marginal note:Objection to identification by employer

  (3) Within twenty days after receiving a notice under subsection (2), the bargaining agent may file an objection to the identification with the Board.

• Marginal note:Decision on objection

  (4) Where an objection to an identification is filed pursuant to subsection (3), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or reject the identification.

• Marginal note:Effective date

  (5) An identification of a position pursuant to subsection (1) takes effect at the end of the period referred to in subsection (3) if no objection is filed within that period or, if an objection is so filed and the identification is confirmed on the objection, the identification takes effect on the date of the decision confirming it.

Marginal note:Objection to continuation of identification

• 5.3 (1) Where, in the opinion of a bargaining agent, the duties and responsibilities of a position of an employee in the bargaining unit for which the bargaining agent was certified that was identified as a managerial or confidential position pursuant to section 5.1 or 5.2 have changed, the bargaining agent may file an objection to the identification with the Board.

• Marginal note:Decision on objection

  (2) Where an objection to an identification is filed pursuant to subsection (1), the Board, after considering the objection and giving the employer and the bargaining agent an opportunity to make representations, shall confirm or terminate the identification.

Basic Rights and Prohibitions

Rights

Marginal note:Right of membership in employee organization

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

Marginal note:Right of employer

7 Nothing in this Act shall be construed to affect the right or authority of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

Prohibitions

Marginal note:Employer participation in employee organization

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

• Marginal note:Discrimination against members and intimidation

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

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

  • (b) impose any condition on an appointment or in a contract of employment, or propose the imposition of any condition on an appointment or in a contract of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act; or

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

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

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

• Marginal note:Exception

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

Marginal note:Discrimination against employee organization

• 9 (1) Except in accordance with this Act or any regulation, collective agreement or arbitral award, no person who occupies a managerial or confidential position, whether or not the person acts on behalf of the employer, shall discriminate against an employee organization.

• Marginal note:Saving provision

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

Marginal note:Soliciting membership during working hours

• 10 (1) Except with the consent of the employer, no officer or representative of an employee organization shall attempt, on the premises of the employer during the working hours of an employee, to persuade the employee to become, refrain from becoming, continue to be or cease to be a member of an employee organization.

• Marginal note:Fair representation

  (2) No employee organization, or officer or representative of an employee organization, that is the bargaining agent for a bargaining unit shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.

PART IPublic Service Staff Relations Board

Constitution of Board

Chairperson and Members

Marginal note:Board established

11 There is hereby established a Board, to be called the Public Service Staff Relations Board, consisting of a Chairperson, a Vice-Chairperson, not less than three Deputy Chairpersons and such other full-time members and part-time members as the Governor in Council considers necessary to discharge the responsibilities of the Board.

Marginal note:Tenure

12 The members of the Board shall be appointed by the Governor in Council to hold office during good behaviour for such period as may be determined by the Governor in Council but not exceeding ten years, in the case of the Chairperson, the Vice-Chairperson and the Deputy Chairpersons, and not exceeding seven years, in the case of any other member.

Marginal note:Qualifications

• 13 (1) A person is not eligible to hold office as a member of the Board if the person

  • (a) is not a Canadian citizen;

  • (b) [Repealed, 1992, c. 54, s. 37]

  • (c) holds any other office or employment under the employer; or

  • (d) is a member of or holds an office or employment under an employee organization that is a bargaining agent.

• Marginal note:Exception

  (2) Where a person ceases to be a member for any reason specified in subsection (1) or for any other reason other than for cause, the person may, notwithstanding anything in this Act, carry out and complete any duties or responsibilities that the person would otherwise have had if the person had not ceased to be a member in connection with any matter that came before the Board while the person was still a member thereof and in respect of which there was any proceeding in which the person participated as a member.

• Marginal note:Eligibility

  (3) Notwithstanding paragraph (1)(c), a person is not ineligible to hold office as a member of the Board by reason only of holding office as a member of any board that may be constituted by the Commissioner in Council of the Northwest Territories, the Legislature of Yukon or the Legislature for Nunavut with powers and duties similar to those of the Board.

Marginal note:Appointments to be made from names on list prepared by Chairperson

• 14 (1) Whenever the Governor in Council intends to appoint a member other than the Chairperson, the Vice-Chairperson or a Deputy Chairperson, the appointment shall be made from among eligible persons whose names are included in a list, prepared by the Chairperson after consultation with the employer and the bargaining agents, in which the Chairperson shall include

  • (a) the names of any eligible persons recommended to the Chairperson by the employer or by a bargaining agent; and

  • (b) the names of any other eligible persons whom the Chairperson considers suitable for appointment as a member.

• Marginal note:Re-appointment of members

  (2) A retiring Chairperson, Vice-Chairperson, Deputy Chairperson or other member may be re-appointed to the Board in the same or another capacity.

Marginal note:Powers, etc., of part-time members

15 A part-time member shall exercise such powers and perform such duties and functions of the Board in any proceeding under this Act as may be assigned to the member by the Board.

Marginal note:Vice-Chairperson

• 16 (1) If the Chairperson is absent or unable to act, or the office of Chairperson is vacant, the Vice-Chairperson shall act as Chairperson and, while so acting, the Vice-Chairperson has all the powers and may perform all the functions of the Chairperson under this Act.

• Marginal note:Delegation

  (2) The Chairperson may authorize the Vice-Chairperson or a Deputy Chairperson to exercise or perform such of the powers, duties or functions of the Chairperson as the Chairperson considers necessary for the proper functioning of the Board.

Remuneration

Marginal note:Remuneration

17 Every member and every person referred to in subsection 13(2) who carries out duties or responsibilities under this Act

• (a) shall be paid such salary or other remuneration as may be determined by the Governor in Council; and

• (b) is entitled to be paid reasonable travel and other expenses incurred while absent from his ordinary place of residence in the course of his duties under this Act.

Head Office and Meetings

Marginal note:Head office

• 18 (1) The head office of the Board shall be at the city of Ottawa.

• Marginal note:Time and place of meetings

  (2) The Board may meet at such times and places as it considers necessary or desirable for the proper conduct of its business.

Marginal note:Quorum

• 19 (1) At any meeting of the Board for the conduct of its business, other than a proceeding before the Board, at least the following members shall be present, namely,

  • (a) the Chairperson or the Vice-Chairperson;

  • (b) one Deputy Chairperson; and

  • (c) a majority of the other full-time members.

• Marginal note:Part-time members not entitled to attend certain Board meetings

  (2) Unless the Board invites a part-time member to attend a meeting of the Board called for the conduct of its business, the part-time member is not entitled to attend, except where there is a proceeding before the Board and the part-time member is one of the persons constituting the Board, or division thereof, for the purposes of the proceeding.

• Marginal note:Board may constitute division

  (3) The Board may establish divisions of the Board consisting of one or more persons chosen from among the members.

• Marginal note:Board may direct matters to divisions of Board

  (4) For the purpose of facilitating the hearing or determination of any matter by the Board in a proceeding, the Board may direct, either generally or in any particular case or class of cases, that the powers, duties and functions of the Board under this Act shall be exercised and performed by a division of the Board.

• Marginal note:Decision of majority

  (5) Subject to subsections 70(2) and (3), a decision of the majority of the persons constituting the Board or a division thereof who are present at any meeting of the Board or division when the decision is taken is a decision of the Board or the division, as the case may be.

Staff and Experts

Marginal note:Chief executive officer

• 20 (1) The Chairperson is the chief executive officer of the Board.

• Marginal note:Appointment of secretary

  (2) A secretary of the Board shall be appointed under the Public Service Employment Act who shall, subject to the direction of the Chairperson, have supervision over and direction of the work and staff of the Board.

• Marginal note:Other staff

  (3) Such other officers and employees as the Board deems necessary for the performance of its duties shall be appointed under the Public Service Employment Act.

• Marginal note:Appointment of experts and advisers

  (4) The Chairperson may appoint and, subject to the approval of the Governor in Council, fix the remuneration of conciliators and other experts or persons having technical or special knowledge to assist the Board in an advisory capacity.

Powers and Duties of the Board

Marginal note:Powers and duties of the Board

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

• Marginal note:Delegation of powers to Vice-Chairperson and Deputy Chairperson

  (2) The Vice-Chairperson and each Deputy Chairperson may exercise such of the powers and perform such of the duties and functions of the Board under this Act as may be assigned to them by the Board other than the power to make regulations of general application under section 22.

Marginal note:Authority of Board to make regulations

• 22 (1) The Board may make regulations of general application respecting

  • (a) the manner in which positions are to be identified by the employer under subsection 5.2(1);

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

  • (c) the certification of bargaining agents for bargaining units and the hearing or determination of applications to record alterations in the process for resolution of disputes applicable to bargaining units;

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

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

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

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

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

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

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

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

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

  • (i) the hearing of complaints under section 23;

  • (j) the authority vested in a council of employee organizations that shall be considered appropriate authority within the meaning of paragraph 29(2)(b); and

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

• Marginal note:When regulations effective

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

Marginal note:Complaints

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

  • (a) to observe any prohibition contained in section 8, 9 or 10;

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

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

  • (d) to comply with any regulation respecting grievances made by the Board pursuant to section 100.

• Marginal note:Order of Board directing compliance

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

• Marginal note:Idem

  (3) An order under subsection (2) directed to a person shall

  • (a) where that person has acted or purported to act on behalf of the employer, be directed as well

    • (i) in the case of a separate employer, to the chief executive officer thereof, and

    • (ii) in any other case, to the Secretary of the Treasury Board; and

  • (b) where that person has acted or purported to act on behalf of an employee organization, be directed as well to the chief officer of that employee organization.

Marginal note:Where order not complied with

• 24 (1) Where any order of the Board made under section 23 directs some action to be taken and the order is not complied with within the period specified in it for the taking of that action, the Board shall forward to the Minister through whom it reports to Parliament a copy of its order, a report of the circumstances and all documents relevant thereto.

• Marginal note:Laid before Parliament

  (2) The Minister shall cause the copy of the order, the report and the relevant documents referred to in subsection (1) to be laid before Parliament within fifteen days after receipt thereof by the Minister or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.

Marginal note:Powers of Board in proceedings

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

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

• (b) to administer oaths and solemn affirmations;

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

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

• (e) subject to such limitations as the Governor in Council in the interests of defence or security may prescribe, to enter any premises of the employer where work is being or has been done by employees and to inspect and view any work, material, machinery, appliances or articles therein and to interrogate any person respecting any matter;

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

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

Marginal note:Application of orders

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

Marginal note:Review or amendment of orders

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

• Marginal note:Exception

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

PART IICollective Bargaining and Collective Agreements

Certification of Bargaining Agents

Application for Certification

Marginal note:Application by employee organization

28 An employee organization seeking to be certified as bargaining agent for a group of employees that it considers constitutes a unit of employees appropriate for collective bargaining may, subject to section 31, apply in the manner prescribed to the Board for certification as bargaining agent for the proposed bargaining unit.

Marginal note:Application by council of organizations

• 29 (1) Where two or more employee organizations have come together to form a council of employee organizations, the council so formed may, subject to section 31, apply in the manner prescribed to the Board for certification as described in section 28.

• Marginal note:Conditions for certification of council

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

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

  • (b) each of the employee organizations forming the council has vested appropriate authority in the council to enable it to discharge the duties and responsibilities of a bargaining agent.

Marginal note:Council deemed to be employee organization

30 A council of employee organizations shall, for all purposes of this Act except subsection 29(2), be deemed to be an employee organization, and membership in any employee organization that is part of a council of employee organizations shall for the same purposes be deemed to be membership in the council.

When Application for Certification may be made

Marginal note:Where agreement for term of not more than two years

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

• Marginal note:Where agreement for term of more than two years

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

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

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

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

• Marginal note:Where agreement is for indefinite term

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

Marginal note:No certification where previous application refused within six months

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

Determination of Appropriate Bargaining Units

Marginal note:Determination of unit

• 33 (1) Where an employee organization has made application to the Board for certification as described in section 28, the Board shall determine the relevant group of employees that constitutes a unit appropriate for collective bargaining.

• Marginal note:Unit coextensive with class

  (2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board shall have regard to the plan of classification, including occupational groups or subgroups, established by the employer for positions in the Public Service and shall establish bargaining units coextensive with the classes, groups or subgroups established by the plan, unless any such bargaining unit would not permit satisfactory representation of the employees to be included in it and, for that reason, would not constitute a unit appropriate for collective bargaining.

• (3) [Repealed, 1992, c. 54, s. 41]

• Marginal note:Composition of bargaining unit

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

Marginal note:Determination of membership in bargaining units

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

Certification

Marginal note:Certification of employee organization as bargaining unit

35 Where the Board

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

• (b) has determined the group of employees that constitutes a unit appropriate for collective bargaining in accordance with section 33,

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

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

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

Marginal note:Powers of Board in relation to certification

• 36 (1) For the purpose of enabling the Board to discharge any obligation imposed by section 35 to satisfy itself as to the matters described in paragraphs 35(c) and (d), the Board may

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

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

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

• Marginal note:Representation vote directed to be taken

  (2) For the purpose of satisfying itself under paragraph 35(c) that a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, the Board, in its sole discretion, may direct that a representation vote be taken among the employees in the bargaining unit.

• Marginal note:Arrangements to be made

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

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

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

Marginal note:Specification of process for resolution of disputes

• 37 (1) Subject to subsection 38(2), every bargaining agent for a bargaining unit shall, in such manner as may be prescribed, specify which of either of the processes described in the definition “process for resolution of a dispute” in section 2 shall be the process for resolution of any dispute to which it may be a party in respect of that bargaining unit.

• (2) [Repealed, 1992, c. 54, s. 42]

Marginal note:Process for resolution of disputes to be recorded

• 38 (1) Where a bargaining agent for a bargaining unit has specified the process for resolution of a dispute as provided in subsection 37(1), the Board shall record, as part of the certification of the bargaining agent for that bargaining unit, the process so specified.

• Marginal note:Period during which process to apply

  (2) The process for resolution of a dispute specified by a bargaining agent as provided in subsection 37(1) and recorded by the Board under subsection (1) shall be the process applicable to that bargaining unit for the resolution of all disputes from the day on which any notice to bargain collectively in respect of that bargaining unit is given next following the specification of the process, and thereafter until the process is altered in accordance with section 39.

Marginal note:Application for alteration of process

• 39 (1) A bargaining agent for a bargaining unit may, in such manner and circumstances as may be prescribed, apply to the Board to record an alteration in the process for resolution of a dispute that is applicable to the bargaining unit in respect of which it is certified.

• Marginal note:Alteration to be included

  (2) The Board shall record an alteration in the process for resolution of a dispute made pursuant to an application under subsection (1) in the same manner as is provided in subsection 38(1) in relation to the initial specification of the process for resolution of a dispute.

• Marginal note:Effective date and duration

  (3) An alteration in the process for resolution of a dispute applicable to a bargaining unit becomes effective on the day that any notice to bargain collectively is given next following the alteration and remains in effect until the process for resolution of a dispute is again altered pursuant to subsection (2).

Where Certification Prohibited

Marginal note:Where participation by employer in formation of employee organization

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

• Marginal note:Where money received or paid for activities by political party

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

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

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

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

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

• Marginal note:Where discrimination by reason of race, etc.

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

Effect of Certification

Marginal note:Effect of certification

• 41 (1) Where an employee organization is certified under this Act as the bargaining agent for a bargaining unit, the employee organization has the exclusive right under this Act

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

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

• Marginal note:Effect of certification on previously certified bargaining agent

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

• Marginal note:Effect of certification on existing collective agreement or arbitral award

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

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

  • (b) may, notwithstanding anything contained in the agreement or award, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, on two months notice to the employer given within one month from the certification.

• Marginal note:Rights of previous or new bargaining agent

  (4) In any case where subsection (2) or (3) applies, any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of that subsection shall, on application by the employer or the previous or the new bargaining agent, be determined by the Board.

Revocations of Certification

On Application

Marginal note:Application for declaration that employee organization no longer represents employees

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

• Marginal note:When application may be made

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

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

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

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

• Marginal note:Taking of representation vote

  (3) On an application under subsection (1), the Board in its sole discretion may direct the taking of a representation vote in order to determine whether a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization that is the bargaining agent for that bargaining unit, and in relation to the taking of any such vote the provisions of subsection 36(3) apply.

• Marginal note:Revocation of certification of employee organization

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

For Abandonment or Other Cause

Marginal note:Abandonment of certification

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

• Marginal note:Revocation where certification prohibited under section 40

  (2) Where the Board, on application to it by the employer or any employee, determines that a bargaining agent would not, if it were an employee organization applying for certification, be certified by the Board by reason of a prohibition contained in section 40, the Board shall revoke the certification of the bargaining agent.

For Fraud

Marginal note:Certification obtained by fraud

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

• Marginal note:Effect of revocation

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

Revocation of Certification of Council

Marginal note:Revocation of certification of council

• 45 (1) Where an employee organization that is a council of employee organizations has been certified as bargaining agent for a bargaining unit, the Board, on application to it by the employer or an employee organization that forms or has formed part of the council, shall revoke the certification of the council where it determines that the council no longer meets the additional requirements for certification required for a council of employee organizations by subsection 29(2) by reason of an alteration in the constituent membership of the council or any other circumstance.

• Marginal note:Subsection (1) is in addition to other circumstances

  (2) The circumstances set out in subsection (1) shall be in addition to the circumstances in which, pursuant to section 42, 43 or 44, the certification of a bargaining agent may be revoked.

Effect of Revocation: Rights of Employee Organizations and Employees

Marginal note:Effect of revocation

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

Marginal note:Determination of rights of bargaining agent

47 Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 42, 43 or 45, any question as to any right or duty of that bargaining agent or of any new bargaining agent replacing it shall, on application by either organization, be determined by the Board.

Marginal note:Direction

48 Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 42, 43, 44 or 45 and as a result thereof a collective agreement or arbitral award binding on the employees in the bargaining unit ceases to be in effect or a collective agreement or arbitral award applying to the bargaining unit is void, the Board shall, on application to it by or on behalf of any employee and in accordance with any regulations made by it in respect thereof, direct the manner in which any right acquired by, or determined by the Board to have accrued to, an employee that is affected by the revocation is to be recognized and given effect to.

Successor Rights

Marginal note:Successor rights

• 48.1 (1) Where the name of any portion of the Public Service specified from time to time in Part I of Schedule I is deleted therefrom and added to Part II of that Schedule, or where a portion of the Public Service included in a portion of the Public Service so specified in Part I of Schedule I is severed from the portion in which it was included and established as or becomes a part of a portion of the Public Service specified in Part II of that Schedule, a collective agreement or arbitral award that applies to any employees in that portion of the Public Service and that is in force at the time the portion of the Public Service is established as or becomes a part of such a separate employer continues in force, subject to this section, until its term expires.

• Marginal note:Application for certification

  (2) An employee organization may apply to the Board for certification as the bargaining agent for the employees affected by a collective agreement or arbitral award referred to in subsection (1), but may so apply only during a period in which an application for certification of an employee organization is authorized to be made under section 31.

• Marginal note:Application for order

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

• Marginal note:Determination of Board

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

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

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

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

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

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

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

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

• Marginal note:Application to bargain collectively

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

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

  (7) Where, before the deletion or severance referred to in subsection (1), notice to bargain collectively has been given in respect of a collective agreement or arbitral award binding on employees in what is now established as or has become a part of a portion of the Public Service specified in Part II of Schedule I, who, immediately before the deletion or severance were part of the Public Service specified in Part I of that Schedule,

  • (a) the terms and conditions of employment contained in a collective agreement or arbitral award that, by virtue of section 52, are continued in force immediately before the date of the deletion or severance or that were last continued in force before that date, in respect of those employees shall continue or resume in force on and after that date and shall be observed by the separate employer, the bargaining agent for those employees and those employees until the requirements of sections 102 to 104 have been met, unless the employer and the bargaining agent agree otherwise;

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

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

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

  • (c) where the Board makes the determinations under paragraph (b), the separate employer, or the bargaining agent may, by notice, require the other to commence or recommence collective bargaining for the purpose of entering into a collective agreement.

• Marginal note:Inquiry and votes

  (8) Before making a determination under subsection (4) or paragraph 7(b), the Board may make such inquiry or direct that such representation votes be taken among the employees to be affected by the determination as the Board considers necessary, and in relation to the taking of any such vote the provisions of subsection 36(3) apply.

Marginal note:Mergers, amalgamations and transfers of jurisdiction

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

• Marginal note:Board may determine questions

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

• Marginal note:Inquiry and votes

  (3) Before making a determination under subsection (2), the Board may make such inquiry or direct that such representation votes be taken among the employees to be affected by the determination as the Board considers necessary, and in relation to the taking of any such vote the provisions of subsection 36(3) apply.

Negotiation of Collective Agreements

Master Collective Agreements

Marginal note:Negotiation of master collective agreements

• 49.1 (1) Notwithstanding any other provision of this Act, the employer and a bargaining agent may jointly elect to engage in collective bargaining with a view to the conclusion of a single collective agreement binding on two or more bargaining units.

• Marginal note:Election not changeable

  (2) An election under subsection (1) may not be changed and remains in force and shall be observed until the single collective agreement is entered into.

Notice to Bargain Collectively

Marginal note:Notice to bargain collectively

• 50 (1) Where the Board has certified an employee organization as bargaining agent for a bargaining unit and the process for resolution of a dispute applicable to that bargaining unit has been specified as provided in subsection 37(1), the bargaining agent, on behalf of the employees in the bargaining unit, may require the employer or the employer may require the bargaining agent, by notice in writing given in accordance with subsection (2), to commence bargaining collectively, with a view to the conclusion of a collective agreement.

• Marginal note:When notice may be given

  (2) Notice to bargain collectively may be given

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

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

• Marginal note:Copy of notice to Board

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

Where Notice Given

Marginal note:Commencement of collective bargaining

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

Marginal note:Continuation in force of terms and conditions

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

• (a) in the case of a bargaining unit for which the process for resolution of a dispute is by the referral thereof to arbitration,

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

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

• (b) in the case of a bargaining unit for which the process for resolution of a dispute is by the referral thereof to conciliation,

  • (i) a collective agreement has been entered into by the parties,

  • (ii) a conciliation board has been established, or a conciliation commissioner has been appointed, in accordance with this Act and seven days have elapsed from the receipt by the Chairperson of the report of the conciliation board or conciliation commissioner, or

  • (iii) the Chairperson has notified the parties pursuant to subsection 77(2) or 77.1(4) of the Chairperson’s intention not to establish a conciliation board or appoint a conciliation commissioner and seven days have elapsed from the date of the notice.

Marginal note:Designated positions

52.1 Where notice to bargain collectively has been given and the employees in the bargaining unit in respect of which the notice was given are not prohibited by subsection 102(2) from striking, any term or condition of employment applicable to those employees that may be embodied in a collective agreement that was in force on the day on which the notice was given shall, in respect of any employees occupying a designated position in the bargaining unit, remain in force and be observed by the employer, the bargaining agent for the bargaining unit and the employees occupying those positions until a collective agreement has been entered into by the parties.

Conciliation

Marginal note:Request for conciliation

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

Marginal note:Report of conciliator

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

Fact Finding

Marginal note:Appointment of fact finder

• 54.1 (1) Where the parties to collective bargaining have bargained in good faith with a view to concluding a collective agreement and either party advises the Board by notice in writing of the inability of the parties to reach agreement on any term or condition of employment that may be embodied in a collective agreement and that it desires the assistance of a fact finder in reaching agreement, the Board, after the Chairperson has consulted the parties with respect to the appointment, shall select a person for the appointment and the Chairperson shall appoint the person so selected as a fact finder.

• Marginal note:When notice may not be given

  (2) A notice may not be given under subsection (1) after an election is made by the bargaining agent under section 61 or the employer or the bargaining agent has made a request under subsection 64(1) or 76(1).

• Marginal note:Eligibility

  (3) A person is not eligible to be appointed as a fact finder if the person has a direct pecuniary interest in any matter that is to come before the fact finder or has, at any time during the six months preceding the date of appointment, acted as solicitor, counsel, agent, negotiator or advisor of either party.

• Marginal note:Vacancy

  (4) Where the office of a fact finder becomes vacant before the fact finder has submitted a report, the Chairperson shall appoint another fact finder in the manner provided in subsection (1), and the new fact finder shall commence work de novo.

• Marginal note:Notice of appointment

  (5) Forthwith on the appointment of a fact finder, the Chairperson shall notify the parties in writing of the appointment.

• Marginal note:Allowance

  (6) A fact finder is entitled to be paid such daily or other allowance with respect to the performance of duties under this Act as may be fixed by the Governor in Council.

Marginal note:Negotiation not precluded

• 54.2 (1) Notwithstanding the appointment of a fact finder, the parties may continue to negotiate and conclude a collective agreement, but the bargaining agent may not make an election under section 61 and neither party may request arbitration or conciliation, as the case may be, before the fact finder has submitted a report to the Board under subsection 54.4(5).

• Marginal note:Termination of appointment

  (2) The appointment of a fact finder is terminated if the parties notify the Board in writing that a collective agreement has been concluded.

Marginal note:Notice of matters agreed on and in dispute

• 54.3 (1) Within seven days after receiving a notice under subsection 54.1(5), each party shall give a notice in writing to the Chairperson, the fact finder and the other party of those terms and conditions of employment on which the parties have agreed and of those on which the parties were unable to reach agreement.

• Marginal note:Notice

  (2) Forthwith after receiving a notice under subsection (1), the Chairperson shall deliver to the fact finder a notice referring the terms and conditions in dispute to the fact finder.

Marginal note:Duty of fact finder

• 54.4 (1) A fact finder shall, as soon as possible after receiving the notice referred to in subsection 54.3(2), confer with the parties, inquire into the terms and conditions in dispute and make a report to the parties including any recommendations for the settlement of the dispute that the fact finder considers appropriate.

• Marginal note:Factors

  (2) In inquiring into the terms and conditions in dispute, a fact finder may inquire into and consider any matter that may be embodied in a collective agreement and that the fact finder considers relevant to the making of an agreement between the parties, including, without limiting the generality of the foregoing, the factors referred to in section 67.

• Marginal note:Procedure

  (3) Subject to such guidelines as the Board may establish, a fact finder may determine the fact finder’s procedure, but shall give an opportunity to both parties to present evidence and make submissions.

• Marginal note:Request for information

  (4) A party shall, on the request of a fact finder, provide the fact finder with any information directly relevant to the matters in dispute that is in that party’s possession.

• Marginal note:Report

  (5) A fact finder shall, within thirty days after the date of appointment of the fact finder or within such other period as may be agreed on by the parties, submit the fact finder’s report to the Board, and the Board shall give a copy of the report to each of the parties.

Marginal note:Parties not bound by report

54.5 The parties are not bound by the report of a fact finder, which report is made for their advice and guidance, but on receiving it they shall bargain collectively in good faith and make every reasonable effort to conclude a collective agreement.

Marginal note:Report to be kept confidential

• 54.6 (1) If the parties conclude a collective agreement within fifteen days after the Board has given each of them a copy of the fact finder’s report, the report shall not be made available to the public by the Board, the parties or any other person.

• Marginal note:Report to be made public

  (2) If the parties do not conclude a collective agreement within fifteen days after the Board has given each of them a copy of the fact finder’s report, the Board shall make the report available to the public.

• Marginal note:Extension

  (3) Notwithstanding subsections (1) and (2), the Board may, with the agreement in writing of the parties, extend a period referred to therein.

Collective Agreements

Authority to enter into Agreement

Marginal note:Authority of Treasury Board

55 The Treasury Board may, in such manner as may be provided for by any rules or procedures determined by it pursuant to 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 employer, applicable to employees in that bargaining unit.

Marginal note:Authority of separate employer

56 A separate employer 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 employer, applicable to employees in that bargaining unit.

Provisions of Collective Agreement

Marginal note:Time within which agreement to be implemented

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

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

  • (b) where no period for implementation is specified in the collective agreement, within ninety days after the date of its execution or such longer period as the parties may agree to or as the Board, on application by either party, may set.

• Marginal note:Term or condition requiring legislative implementation

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

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

  • (b) that has been or may be established pursuant to any Act specified in Schedule II.

Duration and Effect

Marginal note:When agreement effective

• 58 (1) A collective agreement has effect in respect of a bargaining unit on and after,

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

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

• Marginal note:Where no provision as to term of agreement

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

• Marginal note:Saving provision

  (3) Nothing in this Act restricts or prohibits the parties to a collective agreement from amending any provision of the agreement, other than a provision relating to the term of the agreement.

Marginal note:Binding effect of agreement

59 A collective agreement is, subject to and for the purposes of this Act, binding on the employer, on the bargaining agent that is a party thereto and its constituent elements, and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and after the day on and after which it has effect pursuant to subsection 58(1).

PART IIIProvisions Applicable to Resolution of Disputes

Marginal note:Provisions of Act applicable depending on process for resolution of dispute

60 Where the employer and the bargaining agent for a bargaining unit have bargained collectively in good faith with a view to concluding a collective agreement but have failed to reach agreement,

• (a) if the process for resolution of a dispute applicable to the bargaining unit is by the referral thereof to arbitration, sections 64 to 75 apply to the resolution of the dispute; and

• (b) if the process for resolution of a dispute applicable to the bargaining unit is by the referral thereof to conciliation, sections 76 to 90 apply to the resolution of the dispute.

Alternate Dispute Resolution Process

Marginal note:Alternate dispute resolution process

• 61 (1) Notwithstanding any other provision of this Act, a bargaining agent for a bargaining unit for which the process for resolution of a dispute is by the referral thereof to conciliation may, at any time in the negotiation of a collective agreement and with the concurrence of the employer, elect to refer any term or condition of employment of employees in the bargaining unit that may be embodied in a collective agreement to 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) Notwithstanding that a bargaining agent has elected, pursuant to subsection (1), to refer a term or condition to final and binding determination, the process for resolution of a dispute concerning any term or condition not so referred continues to be the referral thereof to conciliation.

• Marginal note:Election not changeable

  (3) An election under subsection (1) may not be changed and remains in force and shall be observed until the determination is made.

• Marginal note:Form of determination

  (4) A determination under subsection (1) shall, whenever possible, be made in such form as can be read and interpreted with, or annexed to and published with, 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, in such form as can be read and interpreted as such an agreement.

• Marginal note:Binding effect

  (5) A determination under subsection (1) is, subject to and for the purposes of this Act, binding on the employer, the bargaining agent and the employees in the bargaining unit and shall be 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, shall be deemed to be such an agreement.

• Marginal note:Provisions applicable

  (6) Subsection 65(3) and sections 81, 108 and 111 apply, with such modifications as the circumstances require, to a person to whom terms and conditions are referred under this section for final and binding determination as if the person were a person referred to therein.

Suspension

Marginal note:Suspension

• 62 (1) The operation of sections 64 to 75.1 is suspended

  • (a) in the case of any portion of the public service of Canada specified in Part I of Schedule I or any separate employer designated under subsection (4), with respect to a dispute in relation to collective bargaining commenced by notice to bargain collectively given during the period beginning on the day on which this section, as it read immediately before the coming into force of section 19 of the Budget Implementation Act, 1999, came into force and ending on June 20, 2001; and

  • (b) in the case of any other separate employer, during the period beginning on the day on which this section, as it read immediately before the coming into force of section 19 of the Budget Implementation Act, 1999, came into force and ending on June 20, 1999.

• Marginal note:Application of Interpretation Act

  (2) Where the operation of sections 64 to 75.1 is suspended pursuant to subsection (1), section 43 of the Interpretation Act applies, with such modifications as the circumstances require, as if the suspended provisions had been repealed.

• Marginal note:Deemed references in the remainder of this Act

  (3) During the period in which the operation of sections 64 to 75.1 is suspended, this Act shall be read, with such modifications as the circumstances require, without any references to arbitration as a process for the resolution of a dispute and any similar references to arbitration, except in respect of existing arbitral awards.

• Marginal note:Order

  (4) The Governor in Council may, by order, designate any separate employer for the purposes of paragraph (1)(a).

Arbitration

63 [Repealed, 1992, c. 54, s. 52]

Request for Arbitration

Marginal note:Request for arbitration

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

• Marginal note:When notice may be given

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

  • (a) at any time, where no collective agreement has been entered into by the parties and no request for arbitration has been made by either party since the commencement of the bargaining; or

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

• Marginal note:Notice to be given

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

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

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

• Marginal note:Discretion of Board

  (4) Notwithstanding anything in this Act, the Board may delay acting on a request for arbitration in a notice under subsection (1) until it is satisfied that the party making the request has bargained sufficiently and seriously with respect to the term or condition of employment for which arbitration was requested.

• Marginal note:Notice to other party

  (5) Forthwith on receiving a notice under subsection (1) from a party, the Secretary shall send a copy of the notice to the other party.

• Marginal note:Request for arbitration of additional matters

  (6) A party to which a copy of a notice is sent under subsection (5) may, within seven days after receiving the copy, by notice in writing to the Secretary, request arbitration in respect of any matter, not specified in the notice under subsection (1), that may be embodied in an arbitral award and that remained in dispute when the notice under subsection (1) was given to the Secretary.

• Marginal note:Notice to include proposal

  (7) Where arbitration in respect of any matter is requested by notice under subsection (6), the party making the request shall specify in the notice its proposal concerning the award to be made by the Board in respect thereof.

Establishment of Arbitration Board

Marginal note:Establishment of arbitration board

• 65 (1) Subject to section 65.1, the Chairperson shall, on receiving a request for arbitration under section 64, establish an arbitration board for arbitration of the matters in dispute.

• Marginal note:Constitution

  (2) An arbitration board shall consist of three persons appointed in the same manner as the members of a conciliation board are appointed pursuant to section 79.

• Marginal note:Qualifications to serve on arbitration board

  (3) No person shall 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 preceding the 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 matter referred to arbitration.

• Marginal note:Provisions applicable

  (4) Sections 81 to 83, subsections 85(1) to (5) and section 86 apply, with such modifications as the circumstances require, in respect of an arbitration board as if it were a conciliation board.

Appointment of Arbitrator

Marginal note:Appointment of arbitrator

• 65.1 (1) The Chairperson shall, on receiving a request for arbitration under section 64, appoint an arbitrator for arbitration of the matters in dispute, if both parties agree to such an appointment.

• Marginal note:Appointment of joint nominee

  (2) Where the parties have jointly nominated a person for an appointment under subsection (1), the Chairperson shall appoint the nominee as the arbitrator.

• Marginal note:Powers of arbitrator

  (3) An arbitrator has all the powers of the Board set out in paragraphs 25(a) to (e).

• Marginal note:Vacancy

  (4) Where the office of an arbitrator becomes vacant before the arbitrator has rendered an arbitral award, the Chairperson shall appoint another arbitrator in the same manner as the original arbitrator was appointed, and the new arbitrator shall commence work de novo.

• Marginal note:Provisions applicable

  (5) Subsection 65(3), sections 66 to 75.1, 81 and 83, subsections 85(1) to (5) and section 86 apply, with such modifications as the circumstances require, to an arbitrator as if the arbitrator were a board referred to therein.

Marginal note:Terms of reference

• 66 (1) Subject to section 69, forthwith on the establishment of an arbitration board, the Chairperson shall deliver to the arbitration board a notice referring the matters in dispute to the board for arbitration.

• Marginal note:Where agreement subsequently reached

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

Marginal note:Factors to be considered

67 In the conduct of proceedings before it and in rendering an arbitral award in respect of a matter in dispute, an arbitration board shall consider

• (a) the needs of the Public Service for qualified employees;

• (b) the conditions of employment in similar occupations outside the Public Service, including such geographic, industrial or other variations as the board may consider relevant;

• (c) the need to maintain appropriate relationships in the conditions of employment as between different grade levels within an occupation and as between occupations in the Public Service;

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

• (e) any other factor that to it appears to be relevant to the matter in dispute.

Marginal note:Parties to be heard

68 Subject to this Act, an arbitration board shall, before rendering an arbitral award in respect of a matter in dispute, give an opportunity to both parties to present evidence and make submissions to it.

Subject-Matter of Arbitral Award

• 69 (1) [Repealed, 1992, c. 54, s. 57]

• Marginal note:Award not to require legislative implementation

  (2) Subsection 57(2) applies, with such modifications as the circumstances require, in relation to an arbitral award.

• Marginal note:Matters not to be dealt with by award

  (3) No arbitral award shall deal with

  • (a) the organization of the Public Service or the assignment of duties to, and classification of, positions in the Public Service;

  • (b) standards, procedures or processes governing the appointment, appraisal, promotion, demotion, deployment, lay-off or termination of employment, other than by way of disciplinary action, of employees; or

  • (c) any term or condition of employment of employees that was not a subject of negotiation between the parties during the period before arbitration was requested in respect thereof.

• Marginal note:Award to be limited

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

Making of Arbitral Award

Marginal note:Rendering of arbitral award

• 70 (1) An arbitration board shall, as soon as possible after it receives the notice referred to in subsection 66(1), render an arbitral award in respect of the matters in dispute.

• Marginal note:Award to be signed

  (1.1) An arbitral award shall be signed by the chairperson of the arbitration board and a copy thereof shall be sent to the Chairperson, and no report or observations thereon shall be made or given by the other members of the board.

• Marginal note:Copy sent to parties

  (1.2) On receipt of a copy of an arbitral award, the Chairperson shall forthwith cause a copy thereof to be sent to the parties and may cause the award to be published in such manner as the Chairperson sees fit.

• Marginal note:Decision

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

• Marginal note:Decision where majority cannot agree

  (3) Where the majority of members of an arbitration board cannot agree on the terms of the arbitral award to be rendered, the decision of the chairperson of the board shall be the arbitral award in respect of the matters in dispute.

• Marginal note:Form of award

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

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

  • (b) as enables its incorporation into and implementation by regulations, by-laws, directives or other instruments that may be required to be made or issued by the employer or the relevant bargaining agent in respect thereof.

Duration and Operation of Arbitral Awards

Marginal note:Binding effect of arbitral award

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

• Marginal note:Retroactive application

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

• Marginal note:Effect on previous collective agreement or award

  (3) Where an arbitration board determines that a provision of an arbitral award shall be retroactively applied, the provision shall, for the retroactive period specified in the arbitral award, displace any term or condition of any previous collective agreement or arbitral award with which the provision is in conflict.

Marginal note:Term of arbitral award

• 72 (1) An arbitration board shall specify the term for which the arbitral award is to be operative and, in making its determination, shall take into account

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

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

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

    • (ii) the term of any other collective agreement that to the arbitration board appears relevant.

• Marginal note:Limitation on term of award

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

Implementation of Arbitral Awards

Marginal note:Implementation of awards

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

Completion and Variation of Arbitral Awards

Marginal note:Reference

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

Marginal note:Amendment of award

75 The Board may, on application jointly by both parties to an arbitral award, amend any provision of the award where it is made to appear to the Board that the amendment is warranted having regard to circumstances that have arisen since the rendering of the award or of which the arbitration board did not have notice when the award was rendered, or having regard to such other circumstances as the Board deems advisable.

Marginal note:Admissibility

75.1 No testimony or proceedings before an arbitration board are admissible in evidence in any court in Canada except in the case of a prosecution for perjury.

Conciliation

Request for Conciliation

Marginal note:Request for conciliation

• 76 (1) Where the parties to collective bargaining have bargained collectively in good faith with a view to concluding a collective agreement but have been unable to reach agreement on any term or condition of employment of employees in the relevant bargaining unit that may be embodied in a collective agreement, either party may, by notice in writing to the Chairperson, request conciliation of the dispute.

• Marginal note:Discretion of Chairperson

  (2) Notwithstanding anything in this Act, the Chairperson may delay acting on a request for conciliation in a notice under subsection (1) until the Chairperson is satisfied that the party making the request has bargained sufficiently and seriously with respect to the dispute for which conciliation was requested.

Establishment of Conciliation Board

Marginal note:Establishment of board on request

• 77 (1) Subject to subsection (2) and sections 77.1 and 78, the Chairperson shall, on receiving a request for conciliation of a dispute under section 76, establish a conciliation board for the investigation and conciliation of the dispute if, in respect of that dispute, any conciliator that may have been appointed has made a final report to the Chairperson of the conciliator’s inability to assist the parties in reaching agreement.

• Marginal note:Board not established

  (2) Subject to section 78, where it appears to the Chairperson, after consultation with each of the parties to a dispute, that the establishment of a conciliation board under subsection (1) is unlikely to serve the purpose of assisting the parties in reaching agreement, the Chairperson shall forthwith notify the parties in writing of the Chairperson’s intention not to establish such a board.

• Marginal note:Establishment of conciliation board in other cases

  (3) In any case not provided for under subsection (1) or (2), the Chairperson may establish a conciliation board for the investigation and conciliation of a dispute where it appears to the Chairperson that the establishment of such a board may serve the purpose of assisting the parties in reaching agreement, and that without the establishment of such a board the parties are unlikely to reach agreement.

• Marginal note:Notice

  (4) Before establishing a conciliation board under subsection (3), the Chairperson shall notify the parties of his intention to do so.

Appointment of Conciliation Commissioner

Marginal note:Appointment of conciliation commissioner

• 77.1 (1) Subject to subsection (4), the Chairperson shall, on receiving a request for conciliation of a dispute under section 76, appoint a conciliation commissioner for the investigation and conciliation of the dispute if, in respect of that dispute,

  • (a) any conciliator that may have been appointed has made a final report to the Chairperson of the conciliator’s inability to assist the parties in reaching agreement; and

  • (b) both parties agree to such an appointment.

• Marginal note:Appointment of joint nominee

  (2) Where the parties have jointly nominated a person for an appointment under subsection (1), the Chairperson shall appoint the nominee as the conciliation commissioner.

• Marginal note:Vacancy

  (3) Where the office of a conciliation commissioner becomes vacant before the conciliation commissioner has submitted a report to the Chairperson, the Chairperson shall appoint another conciliation commissioner in the same manner as the original conciliation commissioner was appointed, and the new conciliation commissioner shall commence work de novo.

• Marginal note:Provisions applicable

  (4) Subsection 77(2) and section 78 apply, with such modifications as the circumstances require, in respect of the appointment of a conciliation commissioner.

• Marginal note:Idem

  (5) Subsection 65(3) and sections 81 and 83 to 90 apply, with such modifications as the circumstances require, to a conciliation commissioner as if the conciliation commissioner were a board referred to therein.

Designated Positions

Marginal note:Condition precedent

• 78 (1) The Chairperson shall not, pursuant to a request under section 76 in respect of a bargaining unit, act under subsection 77(1) or (2) until the position of each employee in that bargaining unit, in accordance with section 78.1 or 78.2,

  • (a) has been designated as having duties consisting in whole or in part of duties the performance of which at any particular time or after any specified period is or will be necessary in the interest of the safety or security of the public; or

  • (b) has been determined as not having the duties described in paragraph (a).

• Marginal note:Application

  (2) Subsection (1) applies only in respect of the first request under section 76 in respect of a bargaining unit made after the coming into force of this section.

• Marginal note:Condition precedent

  (3) Where a position of an employee in a bargaining unit is being reviewed under section 78.4 when a request under section 76 in respect of that bargaining unit is made, unless the parties otherwise agree in writing, the Chairperson shall not, pursuant to the request, act under subsection 77(1) or (2) until the position has been finally dealt with in accordance with section 78.4.

Marginal note:Definition of “safety or security duties”

• 78.1 (1) In this section and sections 78.2 to 78.4, safety or security duties means the duties described in paragraph 78(1)(a).

• Marginal note:Limitation periods

  (2) Where a collective agreement or an arbitral award is in force, the references to notice day in this section and section 78.2 are references to the day that is three months before the day on which the agreement or award ceases to operate and, where no collective agreement or arbitral award is in force, this section and section 78.2 apply without reference to the limitation periods set out therein.

• Marginal note:Extension

  (3) The Board may, on the application of the employer or a bargaining agent, extend any limitation period prescribed by this section or section 78.2.

• Marginal note:Review of positions

  (4) The parties shall, not later than three months before notice day, meet and review the position of each employee in the bargaining unit to determine if the position has safety or security duties.

• Marginal note:Positions having no safety or security duties

  (5) Where the parties determine that none of the positions have safety or security duties or that some do not, the employer shall, not later than two months before notice day, file a statement of the determination with the Board.

• Marginal note:Positions having safety or security duties

  (6) Where the parties determine that some or all of the positions have safety or security duties, the employer shall, not later than two months before notice day, notify the Board of those positions and the Board shall designate those positions as having those duties.

• Marginal note:Referral to panel

  (7) Where the parties disagree on whether any positions have safety or security duties, the employer shall, not later than two months before notice day, refer the positions in dispute to a designation review panel.

• Marginal note:Establishment of panel

  (8) A designation review panel shall consist of three persons appointed in the same manner as the members of a conciliation board are appointed pursuant to section 79, and sections 80 to 83, subsections 85(2) to (6) and sections 86 and 89 apply, with such modifications as the circumstances require, in respect of the panel as if it were a conciliation board.

• Marginal note:Review by panel

  (9) A designation review panel shall, not later than one month before notice day, review only the positions in dispute and make non-binding recommendations in writing to the parties as to whether the positions have safety or security duties.

• Marginal note:Action after report

  (10) Where, after considering the recommendations of a designation review panel,

  • (a) the parties determine that none of the positions in dispute have safety or security duties or that some do not, the employer shall, not later than notice day, file a statement of the determination with the Board; or

  • (b) the parties determine that some or all of the positions in dispute have safety or security duties, the employer shall, not later than notice day, notify the Board of those positions and the Board shall designate those positions as having those duties.

Marginal note:Referral to Board

• 78.2 (1) Where, after considering the recommendations of a designation review panel, the parties continue to disagree on whether any positions have safety or security duties, the employer shall, not later than notice day, refer the positions in dispute to the Board.

• Marginal note:Review by Board

  (2) The Board shall review the positions in dispute and, after giving each party an opportunity to make representations, determine if the positions have safety or security duties.

• Marginal note:Positions having no safety or security duties

  (3) Where the Board determines that none of the positions in dispute have safety or security duties or that some do not, the Chairperson shall send a statement of the determination to the parties.

• Marginal note:Positions having safety or security duties

  (4) Where the Board determines that some or all of the positions in dispute have safety or security duties, the Board shall designate those positions as having those duties and the Chairperson shall send a notice of the designation to the parties.

• Marginal note:Determination final

  (5) Subject to section 78.4, a determination of the Board under subsection (3) or (4) is final and conclusive for all purposes of this Act.

Marginal note:Positions added after initial review

78.3 The position of an employee that is added to a bargaining unit after the position of each employee in the unit has been designated or determined as described in subsection 78(1) shall be deemed to be a position determined as not having safety or security duties.

Marginal note:Continuation of designation or determination

• 78.4 (1) A designation that a position has, or a determination that a position does not have, safety or security duties under section 78.1, 78.2, 78.3 or this section remains in effect until it is changed pursuant to this section.

• Marginal note:Review

  (2) Where the employer or the bargaining agent considers that a position has or does not have safety or security duties, it shall notify the other in writing and they shall meet and review the position to determine if it has or does not have safety or security duties.

• Marginal note:Restriction

  (3) No position shall be reviewed pursuant to subsection (2) within one year after it was reviewed under section 78.1 or 78.2 or this section.

• Marginal note:Provisions applicable

  (4) Subsections 78.1(5) to (10) and section 78.2 apply, without reference to the limitation periods set out therein and with such further modifications as the circumstances require, in respect of a position that is reviewed pursuant to subsection (2) as if it were a position referred to in those provisions.

Marginal note:Notice of designation

78.5 The Board, or if authorized by the Board, the employer, shall inform an employee occupying a designated position of the designation within such time after the position is designated or occupied, as the case may be, and in such manner as the Board may prescribe.

Marginal note:Constitution

• 79 (1) A conciliation board shall consist of three persons appointed in the manner provided in this section.

• Marginal note:Appointment of members

  (2) When a conciliation board is to be established, the Chairperson shall by notice require each of the parties, within seven days from the receipt of the notice, to nominate one person each to be a member of the conciliation board, and on receipt of the nominations within those seven days, the Chairperson shall appoint the persons so nominated as members of the conciliation board.

• Marginal note:Idem

  (3) If either of the parties fails to nominate a person within seven days from the receipt by it of the notice referred to in subsection (2), the Chairperson shall appoint as a member of the conciliation board a person the Chairperson deems fit for the purpose, and that member shall be deemed to have been appointed on the nomination of that party.

• Marginal note:Appointment of chairperson

  (4) The two members appointed under subsection (2) or (3) shall, within five days after the day on which the second of them was appointed, nominate a third person who is ready and willing to act, to be chairperson of the conciliation board, and the Chairperson shall thereupon appoint that person as the chairperson of the conciliation board.

• Marginal note:Idem

  (5) If the two members appointed under subsection (2) or (3) fail to make a nomination under subsection (4) within five days after the second of them was appointed, the Chairperson shall forthwith appoint as the chairperson of the conciliation board a person the Chairperson deems fit for the purpose.

Marginal note:Qualification of members

80 Subsection 65(3) applies, with such modifications as the circumstances require, in relation to the qualification of persons to act as members of a conciliation board.

Marginal note:Allowances payable to members

81 The members of a conciliation board are entitled to be paid such daily or other allowances with respect to the performance of their duties under this Act as may be fixed by the Governor in Council.

Marginal note:Vacancies

82 Where any vacancy occurs in the membership of a conciliation board before the board has reported its findings and recommendations to the Chairperson, the vacancy shall be filled by the Chairperson by appointment in the manner provided in section 79 for the selection of the person in respect of whom the vacancy arose.

Marginal note:Notification of establishment

• 83 (1) Forthwith on the establishment of a conciliation board, the Chairperson shall notify the parties of its establishment and of the names of its members.

• Marginal note:Effect of notification

  (2) On the notification of the parties by the Chairperson of the establishment of a conciliation board, it shall be conclusively presumed that the conciliation board described in the notice has been established in accordance with this Act, and no order shall be made or process entered, and no proceedings shall be taken in any court, to question the establishment of the conciliation board or to review, prohibit or restrain any of its proceedings.

Terms of Reference

Marginal note:Terms of reference of conciliation board

84 Forthwith on the establishment of a conciliation board, the Chairperson shall deliver to the conciliation board a statement setting out the matters on which the board shall report its findings and recommendations to the Chairperson, and the Chairperson may, either before or after the report to him of its findings and recommendations, amend the statement by adding thereto or deleting therefrom any matter the Chairperson deems necessary or advisable in the interest of assisting the parties in reaching agreement.

Procedure

Marginal note:Duties of conciliation board

• 85 (1) A conciliation board shall, as soon as possible after the receipt by it of the statement referred to in section 84, endeavour to bring about agreement between the parties in relation to the matters set out in the statement.

• Marginal note:Rules of procedure

  (2) Except as otherwise provided in this Act, a conciliation board may determine its own procedure, but shall give full opportunity to both parties to present evidence and make representations.

• Marginal note:Sittings

  (3) The chairperson of a conciliation board may, after consultation with the other members of the board, fix the times and places of its sittings and shall notify the parties of the times and places so fixed.

• Marginal note:Quorum and absence of members

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

• Marginal note:Decision

  (5) A decision of a majority of the members of a conciliation board on any matter referred to it is a decision of the board thereon.

• Marginal note:Report of proceedings

  (6) The chairperson of a conciliation board shall forward to the Chairperson a detailed statement signed by him of the sittings of the conciliation board and of the members and witnesses present at each sitting.

Marginal note:Powers of conciliation board

86 A conciliation board has all the powers of the Board set out in paragraphs 25(a) to (e) and, in addition, may authorize any person to exercise any of the powers of the conciliation board as set out in paragraphs 25(b) to (e) and may require the person to report to the conciliation board thereon.

Report

Marginal note:Report to Chairperson

• 87 (1) A conciliation board shall, within fourteen days after the receipt by it of the statement referred to in section 84, or within such longer period as may be agreed on by the parties or determined by the Chairperson, report its findings and recommendations to the Chairperson.

• Marginal note:Report not to require legislative implementation

  (2) Subsection 57(2) applies, with such modifications as the circumstances require, in relation to a recommendation in a report of a conciliation board.

• Marginal note:Matters not to be dealt with by report

  (3) No report of a conciliation board shall contain any recommendation concerning the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, deployment, lay-off or termination of employment, other than by way of disciplinary action, of employees.

• Marginal note:Reconsideration of matters contained in report

  (4) After a conciliation board has reported to the Chairperson its findings and recommendations on the matters set out in the statement referred to in section 84, the Chairperson may direct it to reconsider and clarify or amplify its report or any part thereof, or to consider and report on any matter added to the statement pursuant to that section.

• Marginal note:Idem

  (5) Where the conciliation board is directed under subsection (4) to reconsider its report or consider an added matter, the report shall be deemed to have been received by the Chairperson notwithstanding that the reconsidered report or the report on the added matter has not been received by the Chairperson.

Marginal note:Copy of report to be sent to parties

88 On receipt of the report of a conciliation board, the Chairperson shall forthwith cause a copy thereof to be sent to the parties and may cause the report to be published in such manner as the Chairperson sees fit.

Marginal note:Report as evidence

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

Marginal note:Binding effect

90 Where, at any time before a conciliation board has made its report the parties so agree in writing, a recommendation made by a conciliation board is binding on the parties, subject to and for the purposes of this Act, and shall be given effect to accordingly.

Vote on Employer’s Offer

Marginal note:Minister may order vote to be held

• 90.1 (1) Where, at any time before or after the commencement of a strike not prohibited by this Act, a Minister, other than a member of the Treasury Board, designated by the Governor in Council is of the opinion that it is in the public interest that the employees in the affected bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the bargaining agent in respect of all matters remaining in dispute between the parties, the Minister may

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

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

• Marginal note:No effect on time limits or periods

  (2) A direction under subsection (1) that a vote be held, or the holding of that vote, does not abridge or extend any time limit or period provided for in this Act, including those stipulated in section 102 for the acquisition of the right to strike.

• Marginal note:Consequences of favourable vote

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

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

  • (b) any strike not prohibited by this Act that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance shall cease forthwith, and the employees shall return to work as soon thereafter 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 shall determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.

PART IVGrievances

Right to Present Grievances

Marginal note:Right of employee

• 91 (1) Where any employee feels aggrieved

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

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

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

  • (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

  in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

• Marginal note:Limitation

  (2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.

• Marginal note:Right to be represented by employee organization

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

• Marginal note:Idem

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

Adjudication of Grievances

Reference to Adjudication

Marginal note:Reference of grievance to adjudication

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

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

  • (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

    • (i) disciplinary action resulting in suspension or a financial penalty, or

    • (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

  • (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

  and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

• Marginal note:Approval of bargaining agent

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

• Marginal note:Termination under P.S.E.A. not grievable

  (3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act.

• Marginal note:Order

  (4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I.

Appointment of Adjudicators

Marginal note:Members to adjudicate

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

Establishment of a Board of Adjudication

Marginal note:Composition of board of adjudication

• 94 (1) Where a grievance is referred to a board of adjudication, the board shall be composed of

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

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

• Marginal note:Ineligible to be a member

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

Duty of the Board

Marginal note:Notice to specify whether adjudicator named, etc.

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

• Marginal note:Action to be taken by Board

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

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

  • (a.1) where the parties have selected an adjudicator, refer the matter to the adjudicator so selected;

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

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

• Marginal note:Allowance

  (3) An adjudicator referred to in paragraph (2)(a.1) is entitled to be paid such daily or other allowance with respect to the performance of duties under this Act as may be fixed by the Governor in Council.

95.1 [Repealed, 1992, c. 1, s. 162]

Jurisdiction of Adjudicator

Marginal note:Compliance with procedures

• 96 (1) Subject to any regulation made by the Board under paragraph 100(1)(d), no grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.

• Marginal note:Decision requiring amendment

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

• Marginal note:Binding effect

  (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 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 thereon.

Powers of Adjudicator

Marginal note:Powers of adjudicator

96.1 An adjudicator has, in relation to the adjudication, all the powers, rights and privileges of the Board, other than the power to make regulations under section 22.

Decision of Adjudicator

Marginal note:Hearing of grievance

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

• Marginal note:Decision on grievance

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

  • (a) send a copy thereof to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the employee, whose grievance it is, belongs; and

  • (b) deposit a copy of the decision with the Secretary of the Board.

• Marginal note:Decision of board of adjudication

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

• Marginal note:Implementation of decision by employer

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

• Marginal note:Action to be taken by employee or bargaining agent

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

• Marginal note:Powers of Board with respect to decision on grievance

  (6) The Board may, in accordance with section 23, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

Expenses of Adjudication

Marginal note:Where aggrieved employee not represented by agent

• 98 (1) Where an aggrieved employee is not represented in the adjudication by a bargaining agent, the costs of the adjudication shall be borne by the Board.

• Marginal note:Where aggrieved employee represented by agent

  (2) Where an aggrieved employee is represented in the adjudication by a bargaining agent, the bargaining agent is liable to pay and shall remit to the Board such part of the costs of the adjudication as may be determined by the Secretary of the Board with the approval of the Board.

• 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 by the bargaining agent, which shall, for the purposes of this subsection, be deemed to be a person.

Enforcement of Obligations of Employer and Employee Organizations

Marginal note:Reference by employer or bargaining agent to Board

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

• Marginal note:Idem

  (1.1) Where the employer and a bargaining agent have executed a collective agreement or are bound by an arbitral award and the employer or the bargaining agent seeks to enforce an obligation that is alleged to arise out of the agreement or award, and the obligation, if any, is one the enforcement of which may be the subject of a grievance of an employee in the bargaining unit to which the agreement or award applies, the bargaining agent may, in the prescribed manner and with the agreement of the employer, refer the matter to the Board.

• Marginal note:Board shall hear and determine

  (2) Where a matter is referred to the Board pursuant to subsection (1) or (1.1), the Board shall hear and determine whether there is an obligation as alleged and whether, if there is, there has been a failure to observe or to carry out the obligation.

• Marginal note:Hearing and determination of reference

  (3) The Board shall hear and determine any matter referred to it pursuant to subsection (1) or (1.1) as though the matter were a grievance, and subsection 96(2) and sections 97 and 98 apply in respect of the hearing and determination of that matter.

Regulations respecting Grievances

Marginal note:Regulations re procedures for presentation of grievances

• 100 (1) The Board may make regulations in relation to the procedure for the presentation of grievances, including regulations respecting

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

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

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

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

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

• Marginal note:Application of regulations

  (2) Any regulations made by the Board under subsection (1) in relation to the procedure for the presentation of grievances shall not apply in respect of employees included in a bargaining unit for which a bargaining agent has been certified by the Board, to the extent that 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 re adjudication of grievances

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

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

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

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

  • (d) the form of decisions rendered by adjudicators.

• Marginal note:Employer to designate persons at final or any level

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

PART VGeneral

101 [Repealed, 1992, c. 54, s. 73]

Rights and Prohibitions relating to Strikes

Marginal note:Participation by employee in strike

• 102 (1) No employee shall participate in a strike

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

  • (b) who is included in a bargaining unit for which the process for resolution of a dispute is by the referral thereof to arbitration; or

  • (c) who occupies a designated position.

• Marginal note:Idem

  (1.1) No employee who is included in a bargaining unit the bargaining agent for which has elected, pursuant to subsection 61(1), to refer all terms and conditions in dispute to final and binding determination shall participate in a strike in respect of that dispute.

• Marginal note:Idem

  (1.2) No employee who is included in a bargaining unit the bargaining agent for which has agreed to be bound as described in section 90 in respect of all terms and conditions in dispute shall participate in a strike in respect of that dispute.

• Marginal note:Idem

  (2) No employee who is not an employee described in subsection (1) shall participate in a strike

  • (a) where a collective agreement applying to the bargaining unit in which the employee is included is in force; or

  • (b) where no collective agreement applying to the bargaining unit in which the employee is included is in force, unless

    • (i) a conciliation board for the investigation and conciliation of a dispute in respect of that bargaining unit has been established, or a conciliation commissioner has been appointed for that purpose, and seven days have elapsed from the receipt by the Chairperson of the report of the conciliation board or conciliation commissioner, or

    • (ii) the Chairperson has notified the parties pursuant to subsection 77(2) or 77.1(4) of the Chairperson’s intention not to establish a conciliation board or appoint a conciliation commissioner and seven days have elapsed from the date of the notice.

• Marginal note:Idem

  (3) No employee shall participate in a strike in the period during which the strike is deferred by an order made under subsection 102.1(1).

Marginal note:Right to strike limited during period between Parliaments

• 102.1 (1) Where a strike not otherwise prohibited by this Act 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, 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 through whom the Board reports to Parliament shall cause a report giving the reasons for the making of an order under subsection (1) to be tabled in each House of Parliament within the first ten days on which that House is sitting after the order is made.

Marginal note:Declaration or authorization of strike

103 No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102.

Marginal note:Application for declaration of strike as unlawful

• 104 (1) Where it is alleged by the employer that an employee organization has declared or authorized a strike of employees, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102, the employer may apply to the Board, for a declaration that the strike is or would be unlawful and the Board, after affording an opportunity to the employee organization to be heard on the application, may make such a declaration.

• Marginal note:Application for declaration of strike as lawful

  (2) Where it is alleged by a bargaining agent for a bargaining unit that the participation of employees included in the bargaining unit in a strike authorized or declared, or proposed to be authorized or declared, by the bargaining agent is not or would not be in contravention of section 102, the bargaining agent may apply to the Board for a declaration that the strike is or would be lawful and the Board, after affording an opportunity to the employer to be heard on the application, may make such a declaration.

Marginal note:Offences and punishment

• 105 (1) Every employee who contravenes section 102 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.

• Marginal note:Idem

  (2) Every officer or representative of an employee organization who contravenes section 103 is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

• Marginal note:Idem

  (3) Every employee organization that contravenes section 103 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that any strike declared or authorized by it in contravention of that section is in effect.

Marginal note:Prosecution of employee organization

106 A prosecution for an offence under section 105 may be brought against an employee organization and in the name of that organization, and for the purposes of any such prosecution an employee organization shall be deemed to be a person, and any act or thing done or omitted by an officer or representative of an employee organization within the scope of the authority of the officer or representative to act on behalf of the employee organization shall be deemed to be an act or thing done or omitted by the employee organization.

Consent to Prosecution

Marginal note:Consent

107 No prosecution arising out of an alleged failure by any person to observe any prohibition contained in section 8, 9 or 10 and no prosecution for an offence under section 105 shall be instituted except with the consent of the Board.

Protection of Members and Staff

Marginal note:Evidence respecting information obtained

108 No member of the Board or of an arbitration board, a conciliation board or a designation review panel established under section 78.1 or 78.4, no arbitrator, conciliation commissioner, adjudicator, conciliator or officer or employee of or person appointed by the Board and no fact finder appointed under section 54.1 shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of duties under this Act.

Witness Fees

Marginal note:Payment of witness fees

109 A person who is summoned by the Board, an arbitrator, a conciliation commissioner, an adjudicator, an arbitration board, a conciliation board or a designation review panel established under section 78.1 or 78.4 to attend as a witness in any proceedings thereof taken pursuant to this Act, and who so attends, is entitled to be paid an allowance for expenses, determined in accordance with the scale for the time being in force with respect to witnesses in civil suits in the superior court of the province in which the proceedings are being taken.

Oaths and Solemn Affirmations

Marginal note:Oath or solemn affirmation to be taken

110 A person appointed under this Act shall, before entering on the person’s duties, take an oath or solemn affirmation in the form prescribed in Schedule III before any person authorized by the Governor in Council to take the oath or solemn affirmation or any judge of a court, notary public, justice of the peace or commissioner for taking affidavits, who has authority or jurisdiction in the place where the oath or solemn affirmation is taken.

Provision of Facilities and Staff

Marginal note:Facilities and staff

111 The Board shall provide a fact finder appointed under section 54.1, an arbitration board, an arbitrator, a conciliation commissioner, a conciliation board, a designation review panel established under section 78.1 or 78.4 and an adjudicator with quarters and staff and such other facilities as are necessary to enable the carrying out of their respective functions under this Act.

Superannuation

Marginal note:Application of Public Service Superannuation Act

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

Saving Provision

Marginal note:Limitation

• 113 (1) Nothing in this Act or any other Act shall be construed to require the employer to do or refrain from doing anything 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 any state allied or associated with Canada.

• Marginal note:Order to be conclusive proof

  (2) For the purposes of subsection (1), any order made by the Governor in Council is conclusive proof of the matters stated therein 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.

Report to Parliament

Marginal note:Annual report

• 114 (1) As soon as possible after the end of each year, the Board shall prepare and submit to such minister, other than a member of the Treasury Board, as may be designated by the Governor in Council a report on the administration of this Act during that year.

• Marginal note:Report laid before Parliament

  (2) The minister referred to in subsection (1) shall cause the report of the Board to be laid before Parliament within fifteen days after receipt thereof by the minister or, if Parliament is not then sitting, on any of the first fifteen days next thereafter that either House of Parliament is sitting.