| Unfair labour
practices -
employee
organizations
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188. No employee organization and no
officer or representative of an employee
organization or other person acting on behalf
of an employee organization shall
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(a) except with the consent of the employer,
attempt, at an employee's place of
employment during the employee's
working hours, to persuade the employee to
become, to refrain from becoming, to
continue to be or to cease to be a member of
an employee organization;
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(b) expel or suspend an employee from
membership in the employee organization
or deny an employee membership in the
employee organization by applying its
membership rules to the employee in a
discriminatory manner;
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(c) take disciplinary action against or
impose any form of penalty on an employee
by applying the employee organization's
standards of discipline to that employee in
a discriminatory manner;
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(d) expel or suspend an employee from
membership in the employee organization,
or take disciplinary action against, or
impose any form of penalty on, an
employee by reason of that employee
having exercised any right under this Part or
Part 2 or having refused to perform an act
that is contrary to this Part; or
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(e) discriminate against a person with
respect to membership in an employee
organization, or intimidate or coerce a
person or impose a financial or other
penalty on a person, because that person has
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(i) testified or otherwise participated or
may testify or otherwise participate in a
proceeding under this Part or Part 2,
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(ii) made an application or filed a
complaint under this Part or presented a
grievance under Part 2, or
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(iii) exercised any right under this Part or
Part 2.
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| Unfair labour
practices -
persons
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189. (1) Subject to subsection (2), no person
shall seek by intimidation or coercion to
compel an employee
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(a) to become, refrain from becoming or
cease to be, or, except as otherwise
provided in a collective agreement, to
continue to be, a member of an employee
organization; or
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(b) to refrain from exercising any other right
under this Part or Part 2.
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| Exception
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(2) A person does not commit an unfair
labour practice referred to in subsection (1) by
reason of any act or thing done or omitted in
relation to a person who occupies, or is
proposed to occupy, a managerial or
confidential position.
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| Complaints
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190. (1) The Board must examine and
inquire into any complaint made to it that
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(a) the employer has failed to comply with
section 56 (duty to observe terms and
conditions);
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(b) the employer or a bargaining agent has
failed to comply with section 106 (duty to
bargain in good faith);
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(c) the employer, a bargaining agent or an
employee has failed to comply with section
107 (duty to observe terms and conditions);
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(d) the employer, a bargaining agent or a
deputy head has failed to comply with
subsection 110(3) (duty to bargain in good
faith);
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(e) the employer or an employee
organization has failed to comply with
section 117 (duty to implement provisions
of the collective agreement) or 157 (duty to
implement provisions of the arbitral
award);
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(f) the employer, a bargaining agent or an
employee has failed to comply with section
132 (duty to observe terms and conditions);
or
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(g) the employer, an employee organization
or any person has committed an unfair
labour practice within the meaning of
section 185.
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| Time for
making
complaint
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(2) Subject to subsections (3) and (4), a
complaint under subsection (1) must be made
to the Board not later than 90 days after the
date on which the complainant knew, or in the
Board's opinion ought to have known, of the
action or circumstances giving rise to the
complaint.
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| Limitation on
complaints
against
employee
organizations
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(3) Subject to subsection (4), no complaint
may be made to the Board under subsection
(1) on the ground that an employee
organization or any person acting on behalf of
one has failed to comply with paragraph
188(b) or (c) unless
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(a) the complainant has presented a
grievance or appeal in accordance with any
procedure that has been established by the
employee organization and to which the
complainant has been given ready access;
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(b) the employee organization
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(i) has dealt with the grievance or appeal
of the complainant in a manner
unsatisfactory to the complainant, or
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(ii) has not, within six months after the
date on which the complainant first
presented their grievance or appeal under
paragraph (a), dealt with the grievance or
appeal; and
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(c) the complaint is made to the Board not
later than 90 days after the first day on
which the complainant could, in
accordance with paragraphs (a) and (b),
make the complaint.
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| Exception
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(4) The Board may, on application to it by
a complainant, determine a complaint in
respect of an alleged failure by an employee
organization to comply with paragraph 188(b)
or (c) that has not been presented as a
grievance or appeal to the employee
organization, if the Board is satisfied that
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(a) the action or circumstance giving rise to
the complaint is such that the complaint
should be dealt with without delay; or
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(b) the employee organization has not given
the complainant ready access to a grievance
or appeal procedure.
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| Duty and
power of the
Board
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191. (1) Subject to subsection (3), on receipt
of a complaint made under subsection 190(1),
the Board may assist the parties to the
complaint to settle the complaint. If it decides
not to do so or if the complaint is not settled
within a period that the Board considers to be
reasonable in the circumstances, it must
determine the complaint.
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| Refusal to
determine
complaint
involving
collective
agreement
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(2) The Board may refuse to determine a
complaint made under subsection 190(1) in
respect of a matter that, in the Board's opinion,
could be referred to adjudication under Part 2
by the complainant.
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| Burden of
proof
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(3) If a complaint is made in writing under
subsection 190(1) in respect of an alleged
failure by the employer or any person acting
on behalf of the employer to comply with
subsection 186(2), the written complaint is
itself evidence that the failure actually
occurred and, if any party to the complaint
proceedings alleges that the failure did not
occur, the burden of proving that it did not is
on that party.
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| Orders
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192. (1) If the Board determines that a
complaint referred to in subsection 190(1) is
well founded, the Board may make any order
that it considers necessary in the
circumstances against the party complained
of, including any of the following orders:
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(a) if the employer has failed to comply
with section 107 or 132, an order requiring
the employer to pay to any employee
compensation not more than the amount
that, in the Board's opinion, is equivalent to
the remuneration that would, but for that
failure, have been paid by the employer to
the employee;
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(b) if the employer has failed to comply
with paragraph 186(2)(a), an order
requiring the employer to
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(i) employ, continue to employ or permit
to return to the duties of their
employment any person whom the
employer or any person acting on behalf
of the employer has refused to employ or
continue to employ, has suspended,
transferred, laid off or otherwise
discriminated against, or discharged
contrary to that paragraph,
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(ii) pay to any person affected by that
failure compensation in an amount that is
not more than, in the Board's opinion, the
remuneration that would, but for that
failure, have been paid by the employer
to that person, and
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(iii) rescind any disciplinary action taken
in respect of any person affected by that
failure and pay compensation in an
amount that is not more than, in the
Board's opinion, any financial or other
penalty imposed on the person by the
employer;
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(c) if the employer has failed to comply with
paragraph 186(2)(c), an order requiring the
employer to rescind any action taken in
respect of any employee affected by the
failure and pay compensation in an amount
that is not more than, in the Board's opinion,
any financial or other penalty imposed on
the employee by the employer;
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(d) if an employee organization has failed to
comply with section 187, an order requiring
the employee organization to take and carry
on on behalf of any employee affected by
the failure or to assist any such employee to
take and carry on any proceeding that the
Board considers that the employee
organization ought to have taken and
carried on on the employee's behalf or
ought to have assisted the employee to take
and carry on;
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(e) if an employee organization has failed to
comply with paragraph 188(b) or (d), an
order requiring the employee organization
to reinstate or admit an employee as one of
its members; and
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(f) if an employee organization has failed to
comply with paragraph 188(c), (d) or (e), an
order requiring the employee organization
to rescind any disciplinary action taken in
respect of any employee affected by the
failure and pay compensation in an amount
that is not more than, in the Board's opinion,
any financial or other penalty imposed on
the employee by the employee
organization.
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| Person acting
on behalf of
employer
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(2) If the order is directed to a person who
has acted or purported to act on behalf of the
employer, the order must also be directed to
the Secretary of the Treasury Board in the case
of the core public administration and, in the
case of a separate agency, to its deputy head.
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| Person acting
on behalf of
employee
organization
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(3) If the order is directed to a person who
has acted or purported to act on behalf of an
employee organization, the order must also be
directed to the chief officer of that employee
organization.
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Acts of Officers and Representatives of
Employee Organizations
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| Acts deemed
to be those of
employee
organization
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193. For the purposes of this Part, an act or
thing done or omitted by an officer or
representative of an employee organization
within the scope of that person's authority to
act on the employee organization's behalf is
deemed to be an act or thing done or omitted
by the employee organization.
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Prohibitions Relating to Strikes
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| Declaration or
authorization
of strike
prohibited
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194. (1) No employee organization shall
declare or authorize a strike in respect of a
bargaining unit, and no officer or
representative of an employee organization
shall counsel or procure the declaration or
authorization of a strike in respect of a
bargaining unit or the participation of
employees in such a strike, if
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(a) the employee organization has not been
certified by the Board as the bargaining
agent for the bargaining unit;
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(b) a collective agreement applying to the
bargaining unit is in force;
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(c) no collective agreement is in force, and
no notice to bargain collectively has been
given, in respect of the bargaining unit;
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(d) no collective agreement is in force, and
a notice to bargain collectively has been
given, in respect of the bargaining unit, and
no request for conciliation has been made
under section 161;
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(e) the process for resolution of a dispute
applicable to the bargaining unit is
arbitration;
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(f) the process for resolution of a dispute
applicable to the bargaining unit is
conciliation and a notice to enter into an
essential services agreement has been given
under section 122 by the employer or the
employee organization, as bargaining agent
for the bargaining unit and no essential
services agreement is in force in respect of
the bargaining unit;
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(g) the process for resolution of a dispute in
respect of the bargaining unit is conciliation
and a notice to amend an essential services
agreement has been given under section
126 by the employer or the employee
organization, as bargaining agent for the
bargaining unit, and
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(i) the essential services agreement has
not been amended as a result of that
notice, or
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(ii) if an application referred to in
subsection 127(1) was made by the
employer or the employee organization,
the application has not been finally
disposed of by the Board;
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(h) the process for resolution of a dispute in
respect of the bargaining unit is conciliation
and less than 30 clear days have elapsed
since
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(i) the date an essential services
agreement came into force in respect of
the bargaining unit, or
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(ii) the date an application referred to in
subsection 123(1) made by the employer
or the employee organization as
bargaining agent for the bargaining unit
was finally disposed of by the Board, if
such an application was made;
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(i) the process for resolution of a dispute in
respect of the bargaining unit is conciliation
and the employer or the employee
organization, as bargaining agent for the
bargaining unit, has given a notice to amend
an essential services agreement and less
than 30 clear days have elapsed since
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(i) the date of the coming into force of the
amendment to the essential services
agreement as a result of that notice, or
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(ii) the date the application referred to in
subsection 127(1) made by the employer
or the employee organization was finally
disposed of by the Board, if such an
application was made;
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(j) an essential services agreement binding
on the employee organization and the
employer has been suspended by order
under section 131;
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(k) the process for resolution of a dispute in
respect of the bargaining unit is conciliation
and a public interest commission has not
been established to assist the employer and
the employee organization, as bargaining
agent for the bargaining unit, to enter into or
revise a collective agreement, unless the
employee organization has been notified
under subsection 162(3) that a public
interest commission will not be established;
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(l) the employee organization, as
bargaining agent for the bargaining unit,
has been notified under subsection 162(3)
that a public interest commission will not be
established to assist the employer and the
employee organization to enter into or
revise a collective agreement and less than
seven clear days have elapsed since the date
the notice was given under that subsection;
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(m) a public interest commission has been
established to assist the employer and the
employee organization, as bargaining agent
for the bargaining unit, to enter into or
revise a collective agreement and the
Chairperson has not yet sent the
commission's report or reconsidered report,
as the case may be, to the parties, or, if it has
been sent, less than seven clear days have
elapsed since it was sent;
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(n) the employee organization, as
bargaining agent for the bargaining unit,
has agreed with the employer to be bound as
described in section 181 in respect of all
terms and conditions in dispute;
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(o) the employee organization, as
bargaining agent for the bargaining unit,
has agreed with the employer to refer, under
subsection 182(1), all terms and conditions
in dispute to final and binding
determination;
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(p) a vote has been held under subsection
183(1) and a majority of employees
participating in the vote have accepted the
employer's last offer;
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(q) the employee organization has failed to
conduct a secret ballot vote in accordance
with section 184; or
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(r) the employee organization has
conducted a secret ballot vote in
accordance with section 184 and
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(i) it has not received the approval of a
majority of the employees who voted, or
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(ii) if it has received the approval of a
majority of the employees who voted,
more than 60 clear days, or any longer
period that may be agreed to in writing by
the employee organization and the
employer, have elapsed since the vote
was held.
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| Essential
services
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(2) No employee organization shall declare
or authorize a strike the effect of which is or
would be to involve the participation of any
employee who occupies a position that is
necessary under an essential services
agreement for the employer to provide
essential services, and no officer or
representative of an employee organization
shall counsel or procure the participation of
such employees in a strike.
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| Non-employe
es
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195. No person employed in the public
service shall participate in a strike if the
person is not an employee.
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| Participation
prohibited
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196. No employee shall participate in a
strike if the employee
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(a) is not included in a bargaining unit for
which a bargaining agent has been certified
by the Board;
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(b) is included in a bargaining unit in
respect of which a collective agreement is
in force;
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(c) is included in a bargaining unit in respect
of which no collective agreement is in force
and for which no notice to bargain
collectively has been given;
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(d) is included in a bargaining unit in
respect of which no collective agreement is
in force and for which a notice to bargain
collectively has been given and in respect of
which no request for conciliation has been
made under section 161;
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