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(j) the specification of the times within
which notices, other than those referred to
in subsections 130(1) and (2), and other
documents are to be sent or given under this
Part, the persons to whom they are to be sent
or given and when they are deemed to have
been sent, given or received;
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(k) the determination of the form in which,
and the time as of which, the following
evidence is to be presented to the Board on
an application for certification or
revocation of certification of a bargaining
agent:
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(i) evidence as to membership of
employees in an employee organization,
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(ii) evidence of objection by employees
to certification of an employee
organization, and
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(iii) evidence of signification by
employees that they no longer wish to be
represented by an employee
organization;
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(l) the circumstances in which evidence
referred to in paragraph (k) may be received
by it as evidence that any employees wish
or do not wish to have a particular employee
organization represent them as their
bargaining agent, and the circumstances in
which it must not make public any evidence
so received; and
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(m) any other matter that is incidental or
conducive to the exercise of its powers, the
performance of its functions or the
attainment of the objects of this Part.
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| Powers of
Board
|
40. (1) The Board has, in relation to any
matter before it, the power to
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(a) summon and enforce the attendance of
witnesses and compel them to give oral or
written evidence on oath in the same
manner as a superior court of record;
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(b) order pre-hearing procedures, including
pre-hearing conferences that are held in
private, and direct the date, time and place
of the hearings for those procedures;
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(c) order that a hearing or a pre-hearing
conference be conducted using any means
of telecommunication that permits all
persons participating in the conference to
communicate adequately with each other;
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(d) administer oaths and solemn
affirmations;
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(e) accept any evidence, whether
admissible in a court of law or not;
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(f) examine any evidence that is submitted
to it respecting membership of employees
in an employee organization seeking
certification and, in the case of a council of
employee organizations seeking
certification, in any employee organization
forming part of the council;
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(g) examine documents forming or relating
to the constitution or articles of association
of any employee organization seeking
certification and, in the case of a council of
employee organizations seeking
certification, those of any employee
organization forming part of the council;
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(h) compel, at any stage of a proceeding,
any person to produce the documents and
things that may be relevant;
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(i) require the employer to post and keep
posted in appropriate places any notice that
the Board considers necessary to bring
matters or proceedings before the Board to
the attention of employees;
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(j) subject to any limitations that the
Governor in Council may establish in the
interests of defence or security, enter any
premises of the employer where work is
being or has been done by employees,
inspect and view any work, material,
machinery, appliance or article in the
premises and require any person in the
premises to answer all questions relating to
the matter before it;
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(k) subject to any limitations that the
Governor in Council may establish in the
interests of defence or security, enter any
premises of the employer for the purpose of
conducting representation votes during
working hours; and
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(l) authorize any person to do anything that
the Board may do under paragraphs (d) to
(k) and require the person to report to it on
what the person has done.
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| Frivolous
applications
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(2) The Board may dismiss summarily any
application or complaint that in its opinion is
frivolous or vexatious.
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| Determination
without oral
hearing
|
41. The Board may decide any matter
before it without holding an oral hearing.
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| Scope of
orders
|
42. In making an order or a decision, or
doing any other thing in relation to any person
under this Act, the Board may do so either
generally or in any particular case or class of
cases.
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| Review of
orders and
decisions
|
43. (1) Subject to subsection (2), the Board
may review, rescind or amend any of its orders
or decisions, or may re-hear any application
before making an order in respect of the
application.
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| Exception
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(2) A right that is acquired by virtue of an
order or a decision that is reviewed, rescinded
or amended by the Board may not be altered
or extinguished with effect from a day that is
earlier than the day on which the review,
rescission or amendment is made.
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Chairperson
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| Chief
executive
officer
|
44. The Chairperson is the chief executive
officer of the Board and has supervision over
and direction of the work of the Board,
including
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(a) the assignment and reassignment of
matters that the Board is seized of to panels;
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(b) the composition of panels and the
assignment of Vice-Chairpersons to preside
over panels; and
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(c) the determination of the date, time and
place of hearings.
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| Delegation by
Chairperson
|
45. The Chairperson may authorize a
Vice-Chairperson to exercise any of the
Chairperson's powers or perform any of the
Chairperson's functions, including powers or
functions delegated to the Chairperson by the
Board.
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| Absence of
Chairperson
|
46. (1) If the Chairperson is absent or unable
to act, or the office of Chairperson is vacant,
a Vice-Chairperson designated by the
Minister is to act as Chairperson.
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| Absence of
Chairperson
and the
Vice-Chairper
son
|
(2) In the event of the absence or incapacity
of both the Chairperson and the
Vice-Chairperson designated by the Minister,
or if both of those offices are vacant, the
Minister may designate a member or any
qualified person to act as Chairperson but no
person so designated by the Minister has
authority to act as Chairperson for more than
60 days without the approval of the Governor
in Council.
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Human Resources
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| Responsibility
for human
resources
management
|
47. The Chairperson is authorized, in
respect of persons employed by the Board, to
exercise the powers and perform the functions
of the Treasury Board under the Financial
Administration Act that relate to human
resources management within the meaning of
paragraph 7(1)(e) and section 11.1 of that Act,
and those of deputy heads under subsection
12(2) of that Act, including the determination
of terms and conditions of employment of
persons employed by the Board.
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| Executive
Director of
Board
|
48. (1) An Executive Director of the Board
is to be appointed under the Public Service
Employment Act.
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| Supervision
of work
|
(2) The Executive Director of the Board
assists the Chairperson in the exercise of the
Chairperson's functions and, subject to the
Chairperson's direction, directs and
supervises the day-to-day conduct of the work
of the Board, the management of the Board's
internal affairs and the work of persons
employed by the Board.
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| Other persons
|
49. All other persons that the Board
considers necessary for it to employ are to be
appointed under the Public Service
Employment Act.
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| Experts and
advisers
|
50. (1) The Chairperson may engage on a
temporary basis the services of mediators and
other experts or persons having technical or
special knowledge to assist the Board in an
advisory capacity and, subject to the approval
of the Governor in Council, fix their
remuneration.
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| Non-applicati
on of Public
Service
Superannuati
on Act
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(2) A person engaged under subsection (1)
is not to be considered as being employed in
the public service for the purposes of the
Public Service Superannuation Act by reason
only of being so engaged.
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Judicial Review and Enforcement of Orders
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| Orders not to
be reviewed
by court
|
51. (1) Subject to this Part, every order or
decision of the Board is final and may not be
questioned or reviewed in any court, except in
accordance with the Federal Court Act on the
grounds referred to in paragraph 18.1(4)(a),
(b) or (e) of that Act.
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| Standing of
Board
|
(2) The Board has standing to appear in
proceedings referred to in subsection (1) for
the purpose of making submissions regarding
the standard of review to be used with respect
to decisions of the Board and the Board's
jurisdiction, policies and procedures.
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| No review by
certiorari, etc.
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(3) Except as permitted by subsection (1),
no order, decision or proceeding of the Board
made or carried on under or purporting to be
made or carried on under this Part may, on any
ground, including the ground that the order,
decision or proceeding is beyond the
jurisdiction of the Board to make or carry on
or that, in the course of any proceeding, the
Board for any reason exceeded or lost its
jurisdiction,
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(a) be questioned, reviewed, prohibited or
restrained; or
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(b) be made the subject of any proceedings
in or any process of any court, whether by
way of injunction, certiorari, prohibition,
quo warranto or otherwise.
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| Filing of
Board's orders
in Federal
Court
|
52. (1) The Board must, on the request in
writing of any person or organization affected
by any order of the Board, file a certified copy
of the order, exclusive of the reasons for the
order, in the Federal Court, unless, in its
opinion,
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(a) there is no indication of failure or
likelihood of failure to comply with the
order; or
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(b) there is other good reason why the filing
of the order in the Federal Court would
serve no useful purpose.
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| Effect of
filing
|
(2) An order of the Board becomes an order
of the Federal Court when a certified copy of
the order is filed in that court, and it may
subsequently be enforced as such.
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Advisory Board
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| Minister to
establish
|
53. (1) The Minister shall establish an
advisory board to provide advice to the
Chairperson on the compensation analysis and
research services provided by the Board.
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| Composition
|
(2) The advisory board is to consist of a
chairperson and no more than 11 other
members appointed by the Minister.
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| Qualifications
|
(3) All of the members must have
knowledge or experience that will assist the
advisory board to accomplish its mandate,
including knowledge of or experience in
compensation issues or statistics.
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| Representativ
eness
|
(4) Appointments to the advisory board are
to be made such that there is an equal number
of members representative of the employer
and of employees.
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Certification of Bargaining Agents
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|
Application for Certification
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| Right to apply
|
54. Subject to section 55, an employee
organization that seeks to be certified as
bargaining agent for a group of employees that
it considers constitutes a unit appropriate for
collective bargaining may apply to the Board,
in accordance with the regulations, for
certification as bargaining agent for the
proposed bargaining unit. The Board must
notify the employer of the application without
delay.
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| Agreements
for term of
two years or
less
|
55. (1) If a collective agreement, or an
arbitral award, with a term of two years or less
applies in respect of any employees in the
proposed bargaining unit for which an
employee organization is seeking to be
certified as bargaining agent, the application
for certification may be made only after the
commencement of the last two months of its
term.
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| Agreements
for term of
more than two
years
|
(2) If a collective agreement, or an arbitral
award, with a term of more than two years
applies in respect of any employees in the
proposed bargaining unit for which an
employee organization is seeking to be
certified as bargaining agent, the application
for certification may be made only
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(a) after the commencement of the
twenty-third month of its term and before
the commencement of the twenty-fifth
month of its term;
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(b) during the two-month period
immediately before the end of each year
that the agreement or award continues to be
in force after the second year of its term; or
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(c) after the commencement of the last two
months of its term.
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| Agreements
for an
indefinite
term
|
(3) If a collective agreement that applies in
respect of any employees in the proposed
bargaining unit for which an employee
organization is seeking to be certified as
bargaining agent provides that it will continue
to operate after the term specified in it for a
further term or successive terms if either party
fails to give to the other a notice of termination
or a notice of its desire to bargain with a view
to the renewal of the collective agreement,
with or without modifications, the application
for certification may be made
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(a) at any time permitted by subsection (1)
or (2), as the case may be; or
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|
(b) during the two-month period
immediately before the end of each year
that the collective agreement continues to
operate after the term specified in the
collective agreement.
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|
| Continuation
of terms and
conditions
|
56. After being notified of an application
for certification made in accordance with this
Part, the employer may not, except under a
collective agreement or with the consent of
the Board, alter the terms and conditions of
employment that are applicable to the
employees in the proposed bargaining unit
and that may be included in a collective
agreement until
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(a) the application has been withdrawn by
the employee organization or dismissed by
the Board; or
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(b) 30 days have elapsed after the day on
which the Board certifies the employee
organization as the bargaining agent for the
unit.
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|
Determination of Appropriate Bargaining
Units
|
|
| Determination
of unit
|
57. (1) When an application for
certification is made under section 54, the
Board must determine the group of employees
that constitutes a unit appropriate for
collective bargaining.
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| Consideration
of employer's
classification
|
(2) In determining whether a group of
employees constitutes a unit appropriate for
collective bargaining, the Board must have
regard to the employer's classification of
persons and positions, including the
occupational groups or subgroups established
by the employer.
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| Unit
co-extensive
with
occupational
groups
|
(3) The Board must establish bargaining
units that are co-extensive with the
occupational groups or subgroups established
by the employer, unless doing so would not
permit satisfactory representation of the
employees to be included in a particular
bargaining unit and, for that reason, such a unit
would not be appropriate for collective
bargaining.
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|
| Composition
of bargaining
unit
|
(4) For the purposes of this Part, a unit of
employees may be determined by the Board to
constitute a unit appropriate for collective
bargaining whether or not its composition is
identical with the group of employees in
respect of which the application for
certification was made.
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| Determination
of questions
of
membership
in bargaining
units
|
58. On application by the employer or the
employee organization affected, the Board
must determine every question that arises as to
whether any employee or class of employees
is included in a bargaining unit determined by
the Board to constitute a unit appropriate for
collective bargaining, or is included in any
other unit.
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|
Managerial or Confidential Positions
|
|
| Application
|
59. (1) After being notified of an
application for certification made in
accordance with this Part, the employer may
apply to the Board for an order declaring that
any position of an employee in the proposed
bargaining unit is a managerial or confidential
position on the grounds that
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(a) the position is confidential to the
Governor General, a Minister of the Crown,
a judge of the Supreme Court of Canada, the
Federal Court or the Tax Court of Canada,
or a deputy head;
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(b) the position is classified by the employer
as being in the executive group, by
whatever name called;
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(c) the occupant of the position provides
advice on labour relations, staffing or
classification;
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(d) the occupant of the position has
substantial duties and responsibilities in the
formulation and determination of any
policy or program of the Government of
Canada;
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(e) the occupant of the position has
substantial management duties,
responsibilities and authority over
employees or has duties and responsibilities
dealing formally on behalf of the employer
with grievances presented in accordance
with the grievance process provided for
under Part 2;
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