Bill S-12

3rd Session, 37th Parliament,

52-53 Elizabeth II, 2004

senate of canada

BILL S-12

An Act to amend the Royal Canadian Mounted Police Act (modernization of employment and labour relations)

WHEREAS the Royal Canadian Mounted Police, founded on May 23, 1873 and originally known as the North-West Mounted Police, constitutes by reason of its traditions, professionalism and excellent international reputation a major source of pride for Canadians and a symbol of Canada;

WHEREAS since 1974 some members of the Royal Canadian Mounted Police have sought, through legitimate means, the right to certification and collective bargaining;

WHEREAS the refusal to grant members of the Royal Canadian Mounted Police the right to collective bargaining is a source of injustice and frustration and is furthermore inconsistent with fundamental principles of labour relations in Canada;

WHEREAS the Government of Canada has ratified Convention No. 87 of the International Labour Organization concerning Freedom of Association and Protection of the Right to Organize;

WHEREAS there is in Canada a tradition of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;

WHEREAS members of the Royal Canadian Mounted Police are employed in the public service of Canada yet do not have the rights enjoyed by other employees of the Government of Canada since March 13, 1967 under the Public Service Staff Relations Act;

WHEREAS members of the Royal Canadian Mounted Police do not have the same protection with respect to union activities as other persons employed in the public service of Canada;

WHEREAS effective employer-employee relations constitute the basis of sound human resource management, and cooperation through communication and sustained dialogue enables the public service of Canada to better serve and protect the public interest;

WHEREAS members of the Royal Canadian Mounted Police, unlike members of most civilian police forces in Canada, do not have the right of accreditation and collective bargaining;

WHEREAS the Royal Canadian Mounted Police, to enjoy the trust and respect of the public, must be accountable to Canadians not only through the Royal Canadian Mounted Police Public Complaints Commission, but also through an internal discipline and grievance procedure that is consistent with the principles governing due process of law, notably fairness, impartiality, independence and expeditiousness;

AND WHEREAS the Parliament of Canada considers that good staff relations and the constructive and transparent settlement of disputes within the Royal Canadian Mounted Police are in the best interests of Canada, help to maintain a responsible and effective national civilian police force and enhance public protection;

NOW, THEREFORE, Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

1. (1) The definition “Committee” in section 2 of the Royal Canadian Mounted Police Act is repealed.

(2) The definition “Committee Chairman” in section 2 of the English version of the Act is repealed.

2. The definition “Commission” in section 2 of the French version of the Act is replaced by the following:

“Commission” Sauf à la partie II, la Commission des plaintes du public contre la Gendarmerie royale du Canada constituée par l’article 45.29.

3. Subsection 5(2) of the Act is replaced by the following:

(2) The Commissioner may delegate to any member any of the Commissioner’s powers, duties or functions under this Act, except the power to delegate under this subsection, the power to make rules under this Act and the powers, duties or functions under subsections 45.46(1) and (2).

4. Paragraph 24.1(6)(b) of the Act is replaced by the following:

(b) any answer or statement made in response to a question described in subsection 40(2) or 45.45(9);

5. Subsection 24.1(8) of the Act is replaced by the following:

(8) Where the witness is a member, no answer or statement made in response to a question described in subsection (7) shall be used or receivable against the witness in any proceedings in respect of an allegation of contravention of the Code of Conduct by the witness, other than a hearing into an allegation that with intent to mislead the witness gave the answer or statement knowing it to be false.

6. Parts II and III of the Act are replaced by the following:

PART II

STAFF RELATIONS

Interpretation

25. (1) The following definitions apply in this Part.

“adjudicator” means, subject to subsection 33.1(4), a member of the Board assigned to hear and determine a grievance referred to adjudication and includes, where the context permits, a board of adjudication established under paragraph 33.1(2)(c), a person named as an adjudicator in a collective agreement for the purposes of that agreement and a person otherwise selected as an adjudicator by the parties to the grievance.

“arbitral award” means an award made by the Board or an arbitrator appointed under section 29.05 in respect of a matter in dispute.

“bargaining agent” means an employee organization

(a) that has been certified by the Board as bargaining agent for a bargaining unit; and

(b) the certification of which has not been revoked.

“bargaining unit” means a group of two or more employees that is determined, in accordance with this Part, to constitute a unit of employees appropriate for collective bargaining.

“Board” means the Public Service Staff Relations Board established by section 11 of the Public Service Staff Relations Act.

“Chairperson” means the Chairperson of the Board.

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

“conciliator” means a person appointed by the Chairperson under section 29.01 to assist the parties to collective bargaining in reaching agreement.

“Deputy Chairperson” means a Deputy Chairperson of the Board.

“dispute” means a dispute or difference that arises in connection with the entering into, renewal or revision of a collective agreement, in respect of which the assistance of a conciliator is desired as provided in section 29.01 or arbitration is requested pursuant to section 29.06.

“employee” means a person who is a member or special constable of the Force or who is employed by the Force under terms and conditions substantially the same as those of one of its members, other than

(a) a person appointed by the Governor in Council;

(b) 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; or

(c) a person employed in a managerial or confidential capacity.

“employee organization” means any police association the purposes of which include the regulation of relations between the employer and its employees for the purposes of this Part and includes, unless the context otherwise requires, a council of employee organizations.

“employer” means Her Majesty in right of Canada as represented by the Treasury Board.

“grievance” means a complaint in writing presented in accordance with this Part by an employee on his or her 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 Part 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 employed in a managerial or confidential capacity; and

(b) for the purposes of any of the provisions of this Part respecting grievances with respect to action resulting in termination or 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 person’s termination or suspension, the person was a person employed in a managerial or confidential capacity.

“member of the Board” includes a full-time member and a part-time member of the Board.

“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.

“person employed in a managerial or confidential capacity” means any person who is employed by the employer and, in connection with an application for certification of a bargaining agent for a bargaining unit, is designated by the Board, or, in any case where a bargaining agent for a bargaining unit has been certified by the Board, is designated in the prescribed manner by the employer or by the Board on objection thereto by the bargaining agent, to be a person

(a) who has executive duties and responsibilities in relation to the development and administration of employer programs;

(b) whose duties include those of a personnel administrator or who has duties that cause the person to be directly involved in the process of collective bargaining on behalf of the employer;

(c) who is required by reason of the duties and responsibilities of that person to deal formally on behalf of the employer with a grievance presented in accordance with the grievance process provided by this Part;

(d) who is employed in a position confidential to any person described in paragraph (a), (b) or (c); or

(e) who is not otherwise described in paragraph (a), (b), (c) or (d) but who, in the opinion of the Board, should not be included in a bargaining unit by reason of the person’s duties and responsibilities to the employer.

“police association” means an association whose members are employees of the Force, and whose objects include the improvement of their working conditions and remuneration.

“prescribed” means prescribed by regulation of the Board.

“strike” includes a cessation of work or a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slow-down of work or other concerted activity on the part of employees designed to restrict or limit output.

“Vice-Chairperson” means the Vice-Chairperson of the Board.

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

General

Rights

26. (1) The purpose of this Part is to provide to certain persons employed in the Force collective bargaining and other rights in respect of their employment.

(2) 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.

(3) Nothing in this Part shall be construed to affect the right or authority of the employer to determine the organization of the employer and to assign duties and classify positions of employment.

Prohibitions

26.01 (1) No person who is employed in a managerial or confidential capacity, 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.

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

(a) refuse to employ or to continue to employ, or otherwise discriminate against any person in regard to employment or, 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 Part;

(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 Part; or

(c) seek, by intimidation, by 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 Part.

(3) A person does not contravene subsection (2) by reason only of any act or thing done or omitted in relation to a person employed, or proposed to be employed, in a managerial or confidential capacity.

26.02 (1) Except in accordance with this Part or any regulation, collective agreement or arbitral award, no person employed in a managerial or confidential capacity, whether or not the person acts on behalf of the employer, shall discriminate against an employee organization.

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

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

DIVISION I

PUBLIC SERVICE STAFF RELATIONS BOARD

Public Service Staff Relations Act Provisions

26.04 Unless otherwise provided in this Part, the provisions of Part I of the Public Service Staff Relations Act respecting the Public Service Staff Relations Board apply also in respect of this Part except that, for the purpose of that application,

(a) a reference to that Act in any of those provisions shall be read as a reference to this Part; and

(b) words and expressions used in those provisions that are defined by this Part shall have the meaning given to them by this Part.

Powers and Duties of the Board

26.05 The Board shall administer this Part and shall 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 purposes of, this Part including, without restricting the generality of the foregoing, the making of orders requiring compliance with this Part, with any regulation made hereunder or with any decision made in respect of a matter coming before it.

26.06 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 Part as may be assigned to them by the Board other than the power to make regulations of general application under section 26.07.

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

(a) the manner in which persons shall be designated by the employer, or by the Board on objection thereto by a bargaining agent, to be persons described in paragraphs (a) to (e) of the definition “person employed in a managerial or confidential capacity” in subsection 25(1);

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

(c) the certification of bargaining agents for 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 any 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 organizationshall 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 26.08;

(j) the authority vested in a council of employee organizations that shall be considered appropriate authority within the meaning of paragraph 27.01(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 purpose of this Part.

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

26.08 (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 an employee organization, has failed

(a) to observe any prohibition contained in section 26.01, 26.02 or 26.03;

(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 34.1.

(2) Where under subsection (1) the Board determines that any person has failed to observe any prohibition, to give effect to any provision or decision or to comply with any regulation as described in that subsection, it may make an order, addressed to that person, directing the 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 and,

(a) where that person has acted or purported to act on behalf of the employer, it shall direct its order as well to the employer; and

(b) where that person has acted or purported to act on behalf of an employee organization, it shall direct its order as well to the chief officer of that employee organization.

26.09 Where any order made under section 26.08 directs some action to be taken and is not complied with within the period specified in the order for the taking of that action, the Board shall cause a copy of its order, a report of the circumstances and all documents relevant thereto to be laid before each House of Parliament within fifteen days after the expiration of the period or, if that House is not then sitting, on any of the first fifteen days next thereafter on which that House is sitting.

26.1 The Board has, in relation to the hearing or determination of any proceeding before it, the 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 in any matter or proceeding before the Board;

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

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

26.11 Where under this Part 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.

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

(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.

DIVISION II

COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS

Certification of Bargaining Agents

Application for Certification

27. (1) 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 subsection (2) and section 27.04, apply in the prescribed manner to the Board for certification as bargaining agent for the proposed bargaining unit. The Board must notify the employer of the application without delay.

(2) Only a police association may seek to be certified as a bargaining agent for a group of employees.

(3) A police association may be affiliated with another organization only if that organization is composed exclusively of employees.

27.01 (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 27.04, apply in the prescribed manner to the Board for certification under section 27.

(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 Part 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.

27.02 A council of employee organizations shall, for all purposes of this Part except subsection 27.01(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.

27.03 After being notified of an application for certification made in accordance with this Part, the employer shall 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

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

(b) 90 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.

When Application for Certification may be Made

27.04 (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.

(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.

(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.

(4) Where no collective agreement or arbitral award in respect of a bargaining unit is in force but an employee organization has been certified as bargaining agent for any of the employees in the bargaining unit, an employee organization may, after the expiration of twelve months from the date of that certification or, with the consent of the Board, at an earlier time, apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit.

27.05 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

27.06 (1) Where an employee organization has applied to the Board for certification as described in section 27, the Board shall determine the relevant group of employees that constitutes a unit appropriate for collective bargaining.

(2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board shall take into account, having regard to the proper functioning of this Part, the duties and classification of the employees in the proposed bargaining unit in relation to any plan of classification as it may apply to the employees in the proposed bargaining unit.

(3) 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 application for certification was made.

27.07 Where, at any time following the determination by the Board that a group of employees constitutes 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

27.08 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 Part,

(b) has determined the group of employees that constitutes a unit appropriate for collective bargaining in accordance with section 27.06,

(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 Part, certify the employee organization making the application as bargaining agent for the employees in that bargaining unit.

27.09 (1) For the purpose of enabling the Board to discharge any obligation imposed by section 27.08 to satisfy itself as to the matters described in paragraphs (c) and (d) of that section, 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.

(2) For the purpose of satisfying itself under paragraph 27.08(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.

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

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

(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.

Where Certification Prohibited

27.1 (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 by 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.

(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.

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

Effect of Certification

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

(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 Part, 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.

(2) Where an employee organization is certified under this Part 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.

(3) Where an employee organization is certified under this Part 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.

(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.

Revocation of Certification

On Application

27.12 (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.

(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.

(3) Where no collective agreement or 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, at any time after the expiration of twelve months from the date of certification of the bargaining agent for that bargaining unit, 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.

(4) On an application under subsection (1) or (3), 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 27.09(3) apply.

(5) After hearing any application under subsection (1) or (3), the Board shall revoke the certification of an employee organizationas 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

27.13 (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 affected, determines that the bargaining agent has ceased to act as bargaining agent.

(2) Where the Board, on application to it by the employer or 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 27.1, the Board shall revoke the certification of the bargaining agent.

For Fraud

27.14 (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.

(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, to which the employee organization was a party, is void.

Revocation of Certification of Council

27.15 (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 27.01(2) by reason of an alteration in the constituent membership of the council or any other circumstance.

(2) The circumstances set out in subsection (1) apply in addition to the circumstances in which the certification of a bargaining agent may be revoked pursuant to sections 27.12 to 27.14.

Effect of Revocation: Rights of Employee Organizations and Employees

27.16 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 that certification.

27.17 Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 27.12, 27.13 or 27.15, 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.

27.18 Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 27.12, 27.13, 27.14 or 27.15 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

27.19 Where, on a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations otherwise than as a result of revocation of certification, any question arises concerning the rights, privileges and duties of an employee organization under this Part 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 any employee organization affected, shall examine the question and may, in accordance with any regulations made by it in respect thereof, declare or determine what rights, privileges and duties, if any, have been acquired or are retained, as the case may be, by that employee organization.

Negotiation of Collective Agreements

Notice to Bargain Collectively

28. (1) Where the Board has certified an employee organization as bargaining agent for a bargaining unit, the bargaining agent may require the employer, on behalf of the employees in the bargaining unit, 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.

(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 Part, at any time; and

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

Where Notice Given

28.1 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.

28.2 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 in that behalf that may be entered into by the employer and the bargaining agent, until such time as

(a) 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 Part; or

(b) 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 Part and a collective agreement has been entered into or an arbitral award has been rendered in respect thereof.

Collective Agreements

Authority to Enter into Agreement

28.3 The employer may enter, with the bargaining agent for a bargaining unit, into a collective agreement applicable to employees in that bargaining unit.

Provisions of Collective Agreement

28.4 (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, 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 a period of ninety days from the date of its execution or, on application by either party to the agreement, within such longer period as may appear reasonable to the Board.

(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 of which or the establishment of which, as the case may be, 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 after the coming into force of this Part is, as the case may be, established pursuant to the Royal Canadian Mounted Police Superannuation Act.

Duration and Effect

28.5 (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.

(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).

(3) Nothing in subsection (2) shall be construed as preventing the amendment or revision of any provision of a collective agreement, other than a provision relating to the term of the collective agreement, that, under the agreement, may be amended or revised during the term thereof.

28.6 A collective agreement is, subject to and for the purposes of this Part, 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 28.5(1).

DIVISION III

PROVISIONS APPLICABLE TO RESOLUTION OF DISPUTES

29. 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, sections 29.01 and 29.02 and sections 29.06 to 29.17 apply to the resolution of the dispute.

Conciliation

29.01 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.

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

Arbitration

29.03 (1) The Board shall appoint two panels, one panel to consist of at least three persons representative of the interests of the employer and the other to consist of at least three persons representative of the interests of employees.

(2) A member of a panel appointed by the Board under subsection (1) shall be appointed to hold office for such term as the Board considers appropriate.

(3) A person is not eligible to hold office as a member of a panel if the person is not eligible to be a member of the Board or, if the person is a member of the Board, unless the person is a member of the Board pursuant to a selection under section 29.04.

29.04 (1) In respect of each dispute referred to arbitration, the Board shall be deemed to consist, for the period of the arbitration proceedings and for the purposes of the arbitration only, of a member of the Board and two other persons, one each selected by the Board from each panel appointed under subsection 29.03(1).

(2) A person selected by the Board from a panel under subsection (1) shall be deemed to be a member of the Board for the period of the arbitration proceedings in respect of which the person is selected.

(3) No person shall act as a member of the Board in respect of a matter referred to arbitration if the person has at any time during the six months immediately preceding the day of the selection of that person under subsection (1) 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.

29.05 (1) Notwithstanding anything in this Part, if the Chairperson considers it advisable to do so, the Chairperson may appoint an arbitrator in place of the Board in respect of any matters in dispute referred to arbitration under this Part.

(2) A person is not eligible to be appointed arbitrator under subsection (1) if the person

(a) is not eligible to be a member of the Board;

(b) is a member of the Board or member of a panel appointed by the Board under subsection 29.03(1); or

(c) is not eligible under subsection 29.04(3) to act as a member of the Board in respect of a matter referred to arbitration.

(3) An arbitrator appointed under this section has all the powers of the Board set out in paragraphs 26.1(b) to (d).

(4) Sections 29.08 to 29.17 apply, with such modifications as the circumstances require, in respect of matters in dispute referred to an arbitrator appointed under subsection (1).

Request for Arbitration

29.06 (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.

(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.

(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.

29.07 (1) Where notice under section 29.06 is received by the Secretary of the Board from any party requesting arbitration, the Secretary shall forthwith send a copy of the notice to the other party, who shall within seven days after receipt thereof advise the Secretary, by notice in writing, of any matter, additional to the matters specified in the notice under section 29.06, that was a subject of negotiation between the parties during the period before the arbitration was requested but on which the parties were unable to reach agreement and in respect of which, being a matter that may be embodied in an arbitral award, that other party requests arbitration.

(2) Where arbitration in respect of any matter is requested by notice under subsection (1), the party making the request shall include in the notice its proposal concerning the award to be made by the Board in respect thereof.

Consideration of Dispute and Award

29.08 (1) Subject to section 29.11, the matters in dispute specified in the notice under section 29.06 and in any notice under section 29.07 constitute the terms of reference of the Board in relation to the request for arbitration and the Board shall, after considering the matters in dispute together with any other matter that the Board considers necessarily incidental to the resolution of the matters in dispute, render an arbitral award in respect thereof.

(2) Where, at any time before an arbitral award is rendered, the parties reach agreement on any matter in dispute referred to the 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.

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

(a) the need of the employer for qualified employees,

(b) the need to maintain appropriate relationships in the conditions of employment between different grade levels within an occupation and between occupations of employees,

(c) 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

(d) any other factor that appears to it to be relevant to the matter in dispute,

and, so far as is consistent with the requirements of the employer, the Board shall give due regard to maintaining comparability between the conditions of employment of employees and those of persons in similar employment.

29.1 Subject to this Part, the Board shall, before rendering an arbitral award in respect of a matter in dispute, give full opportunity to both parties to present evidence and make submissions to it.

Arbitral Award Matters

29.11 (1) Subsection 28.4(2) applies, with such modifications as the circumstances require, in relation to an arbitral award.

(2) No arbitral award shall deal with the standards, procedures or processes governing the appointment, appraisal, promotion, demotion, transfer, lay-off or release of employees, or with 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.

(3) 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

29.12 (1) An arbitral award shall be signed by the member of the Board who is not a member selected from a panel appointed under section 29.03 and copies thereof shall be transmitted to the parties to the dispute and no report or observations thereon shall be made or given by either of the members selected from a panel appointed under section 29.03.

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

(3) Where the majority of the members of the Board cannot agree on the terms of the arbitral award to be rendered in respect thereof, the decision of the member of the Board who is not a member selected from a panel appointed under section 29.03 shall be the arbitral award in respect of the matters in dispute.

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

(a) as will be susceptible of being 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 will enable 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

29.13 (1) An arbitral award is, subject to and for the purposes of this Part, binding on the employer and on 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 Board may determine.

(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.

(3) Where, in relation to any or all of the provisions of an arbitral award made in respect of terms and conditions of employment, there was previously in effect a collective agreement or arbitral award, the previous collective agreement or arbitral award is displaced, to the extent of any conflict, for the term, determined in accordance with section 29.14, for which the subsequent award is operative.

29.14 (1) The Board shall, in respect of every arbitral award, determine and specify therein the term for which the arbitral award is to be operative and, in making its determination, it 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 Board appears relevant.

(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

29.15 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 therefor, be implemented by the parties within a period of ninety days from the date on and after which it becomes binding on the parties or within such longer period as, on application to the Board by either party, appears reasonable to the Board.

Completion and Variation of Arbitral Awards

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

29.17 The Board may, on application jointly by both parties to an arbitral award, amend, alter or vary any provision of that award where it is made to appear to the Board that the amendment, alteration or variation thereof is warranted, having regard to circumstances that have arisen since the making of the award or of which the Board did not have notice at the time of the making thereof, or having regard to such other circumstances as the Board deems relevant.

DIVISION IV

GRIEVANCES

Right to Present Grievances

30. (1) Subject to subsection (2), an employee is entitled to present a grievance if he or she feels aggrieved

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

(i) a provision of a statute or regulation, of a by-law, direction or other instrument made or issued by the employer, or of the Commissioner’s standing orders, 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 employee’s terms and conditions of employment.

(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.

(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.

(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.

(5) For greater certainty, subject to subsection (2), an employee may present a grievance relating to any sanction imposed or measure taken by the employer under Part IV or V of this Act.

Adjudication of Grievances

Reference to Adjudication

31. (1) Where an employee has presented a grievance up to and including the final level in the grievance process and the grievance has not been dealt with to the satisfaction of the employee, the employee may refer the grievance to adjudication if the grievance is with respect to

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

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

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

(b) disciplinary action against the employee resulting in suspension or a financial penalty;

(c) the termination of employment of the employee, other than rejection on probation in respect of an initial appointment;

(d) demotion of the employee;

(e) where the employee has been denied an appointment, the employer’s evaluation of the skill, fitness and ability of the employee with respect to the employee’s qualification for the appointment; or

(f) subject to subsection 26(3), the employer’s classification of the employee.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance relating to the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, 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 applies signifies in prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

(3) A grievance with respect to a matter referred to in paragraph (1)(f) shall not be adjudicated under this Part unless the circumstances that cause the grievance are in existence after the day that is one year after this Part comes into force.

Appointment of Adjudicators

32. The Board shall assign such members of the Board as may be required to hear and adjudicate on grievances referred to adjudication under this Part.

Establishment of a Board of Adjudication

33. (1) Where a grievance is referred to a board of adjudication, the board shall be composed of three persons, namely,

(a) a member of the Board, who shall be the chairperson of the board of adjudication; and

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

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

Duty of the Board

33.1 (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 such adjudicator is so named or selected, whether the employee requests the establishment of a board of adjudication.

(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;

(b) where the parties have selected an adjudicator, refer the matter to the adjudicator so selected;

(c) 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

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

(3) Notwithstanding section 32 and subsections (1) and (2), where a grievance respecting a matter referred to in paragraph 31(1)(d), (e) or (f) is referred to adjudication, the adjudication shall be by a single adjudicator selected by

(a) the employee and employer concerned; or

(b) the Chairperson, where the employer and employee are unable to agree on the selection of an adjudicator and either party makes a written request to the Chairperson to select an adjudicator.

(4) A person selected to adjudicate a grievance respecting a matter referred to in paragraph 31(1)(d), (e) or (f)

(a) shall not be a member of the Board but has, for the purposes of the adjudication, all the powers, rights and privileges of the Board other than the power to make regulations of general application under section 26.07; and

(b) shall not have any direct interest in or in connection with the grievance, its handling or its disposition.

33.2 An adjudicator has, for the purposes of the adjudication of a grievance respecting a matter referred to in paragraph 31(1)(a), (b) or (c) that is referred to adjudication, the powers that the Board has under section 26.11, other than paragraph 26.11(e) or (f), in relation to the hearing or determination of a proceeding before it.

Jurisdiction of Adjudicator

33.3 (1) Subject to any regulation made by the Board under paragraph 34.1(1)(e), 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 presentation of the grievance up to and including the final level in the grievance process have been complied with.

(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.

(3) Where a grievance has been presented up to and including the final level in the grievance process and is not one that under section 31 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 Part and no further action under this Part may be taken thereon.

Decision of Adjudicator

33.4 (1) Where a grievance is referred to adjudication, the adjudicator shall give both parties to the grievance an opportunity to be heard.

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

(a) send a copy of the decision to each party, to the representative of each party and to the bargaining agent, if any, for the bargaining unit to which the aggrieved employee belongs; and

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

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

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

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

(6) The Board may, in accordance with section 26.09, take such action as is contemplated by that section where the decision of an adjudicator on a grievance is not complied with within the period specified but shall not inquire into the basis or substance of the decision.

Expenses of Adjudication

33.5 (1) Where an adjudicator is named in any applicable collective agreement or has been otherwise selected by the parties or has been selected by the Board, the method of determining the adjudicator’s remuneration and of defraying such expenses as the adjudicator may incur shall be as established in the applicable collective agreement, but if there is no such agreement or if the agreement does not specify the method, the adjudicator’s remuneration and expenses shall be borne equally by the parties.

(2) Where a grievance is referred to a board of adjudication, the remuneration and expenses of the nominee of each party shall be borne by the parties respectively.

(3) Any amount that by subsection (2) is payable to the Board by a bargaining agent may be recovered as a debt due to the Crown by the bargaining agent, which shall, for the purposes of this subsection, be deemed to be a person.

(4) Where a grievance respecting a matter referred to in paragraph 31(1)(d), (e) or (f) is referred to adjudication, the adjudicator’s remuneration and expenses shall be borne equally by the parties.

Enforcement of Obligations of Employer and Employee Organizations

34. (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 collective agreement or arbitral award applies, either the employer or the bargaining agent may, in the prescribed manner, refer the matter to the Board.

(2) Where a matter is referred to the Board pursuant to subsection (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.

(3) The Board shall hear and determine any matter referred to it pursuant to subsection (1) as though the matter were a grievance, and subsection 33.3(2) and sections 33.4 and 33.5 apply to the hearing and determination of that matter.