Canada Labour Code
Canada Labour Code -- CHAPTER L-2
* File : L-2.TXT
* Updated to : December 31, 1999
* Note: This consolidation is not an official version of the law.
* Also, because this file is text-only, it does not contain formatting or graphics.
Also available at;
http://canada.justice.gc.ca/FTP/EN/Laws/Chap/L/L-2.txt
Please also see - Associated Regulations;
http://canada.justice.gc.ca/FTP/EN/Regs/Chap/L/L-2/index.html
Canada Labour Code CHAPTER L-2
An Act to consolidate certain statutes respecting labour
SHORT TITLE
Short title
1. This Act may be cited as the Canada Labour Code.
R.S., c. L-1, s. 1.
INTERPRETATION
Definitions
2. In this Act,
"federal work, undertaking or business" ®entreprises f‚d‚rales¯
"federal work, undertaking or business" means any work, undertaking or
business that is within the legislative authority of Parliament,
including, without restricting the generality of the foregoing,
(a) a work, undertaking or business operated or carried on for or in
connection with navigation and shipping, whether inland or maritime,
including the operation of ships and transportation by ship anywhere in
Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting
any province with any other province, or extending beyond the limits of
a province,
(c) a line of ships connecting a province with any other province, or
extending beyond the limits of a province,
(d) a ferry between any province and any other province or between any
province and any country other than Canada,
(e) aerodromes, aircraft or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank or an authorized foreign bank within the meaning of section 2
of the Bank Act,
(h) a work or undertaking that, although wholly situated within a
province, is before or after its execution declared by Parliament to be
for the general advantage of Canada or for the advantage of two or more
of the provinces,
(i) a work, undertaking or business outside the exclusive legislative
authority of the legislatures of the provinces, and
(j) a work, undertaking or activity in respect of which federal laws
within the meaning of section 2 of the Oceans Act apply pursuant to
section 20 of that Act and any regulations made pursuant to paragraph
26(1)(k) of that Act;
"Minister" ®ministre¯
"Minister" means the Minister of Labour.
R.S., 1985, c. L-2, s. 2; 1990, c. 44, s. 17; 1996, c. 31, s. 89; 1999,
c. 28, s. 169.
PART I
INDUSTRIAL RELATIONS
Preamble
WHEREAS there is a long tradition in Canada 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;
AND WHEREAS Canadian workers, trade unions and employers recognize and
support freedom of association and free collective bargaining as the
bases of effective industrial relations for the determination of good
working conditions and sound labour-management relations;
AND 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 and has assumed international
reporting responsibilities in this regard;
AND WHEREAS the Parliament of Canada desires to continue and extend
its support to labour and management in their cooperative efforts to
develop good relations and constructive collective bargaining practices,
and deems the development of good industrial relations to be in the best
interests of Canada in ensuring a just share of the fruits of progress
to all;
NOW THEREFORE, Her Majesty, by and with the advice and consent of the
Senate and House of Commons of Canada, enacts as follows:
1972, c. 18, Preamble.
Interpretation
Definitions
3. (1) In this Part,
"arbitration board" ®conseil d'arbitrage¯
"arbitration board" means an arbitration board constituted by or
pursuant to a collective agreement or by agreement between the parties
to a collective agreement and includes an arbitration board the
chairperson of which is appointed by the Minister under this Part;
"arbitrator" ®arbitre¯
"arbitrator" means a sole arbitrator selected by the parties to a
collective agreement or appointed by the Minister under this Part;
"bargaining agent" ®agent n‚gociateur¯
"bargaining agent" means
(a) a trade union that has been certified by the Board as the bargaining
agent for the employees in a bargaining unit and the certification of
which has not been revoked, or
(b) any other trade union that has entered into a collective agreement
on behalf of the employees in a bargaining unit
(i) the term of which has not expired, or
(ii) in respect of which the trade union has, by notice given pursuant
to subsection 49(1), required the employer to commence collective
bargaining;
"bargaining unit" ®unit‚ de n‚gociation¯
"bargaining unit" means a unit
(a) determined by the Board to be appropriate for collective bargaining,
or
(b) to which a collective agreement applies;
"Board" ® Conseil ¯
"Board" means the Canada Industrial Relations Board established by
section 9;
"collective agreement" ®convention collective¯
conditions of employment and related matters;
"conciliation board" ® commission de conciliation ¯
"conciliation board" means a board established by the Minister under
paragraph 72(1)(c);
"conciliation commissioner" ® commissaire-conciliateur ¯
"conciliation commissioner" means a person appointed by the Minister
under paragraph 72(1)(b);
"conciliation officer" ®conciliateur¯
"conciliation officer" means a person appointed by the Minister under
paragraph 72(1)(a);
"dependent contractor" ® entrepreneur d‚pendant ¯
"dependent contractor" means
(a) the owner, purchaser or lessee of a vehicle used for hauling, other
than on rails or tracks, livestock, liquids, goods, merchandise or other
materials, who is a party to a contract, oral or in writing, under the
terms of which they are
(i) required to provide the vehicle by means of which they perform the
contract and to operate the vehicle in accordance with the contract, and
(ii) entitled to retain for their own use from time to time any sum of
money that remains after the cost of their performance of the contract
is deducted from the amount they are paid, in accordance with the
contract, for that performance,
(b) a fisher who, pursuant to an arrangement to which the fisher is a
party, is entitled to a percentage or other part of the proceeds of a
joint fishing venture in which the fisher participates with other
persons, and
(c) any other person who, whether or not employed under a contract of
employment, performs work or services for another person on such terms
and conditions that they are, in relation to that other person, in a
position of economic dependence on, and under an obligation to perform
duties for, that other person;
"dispute" ®diff‚rend¯
"dispute" means a dispute arising in connection with the entering into,
renewing or revising of a collective agreement, in respect of which
notice may be given to the Minister under section 71;
"employee" ®employ‚¯
"employee" means any person employed by an employer and includes a
dependent contractor and a private constable, but does not include a
person who performs management functions or is employed in a
confidential capacity in matters relating to industrial relations;
"employer" ®employeur¯
"employer" means
(a) any person who employs one or more employees, and
(b) in respect of a dependent contractor, such person as, in the opinion
of the Board, has a relationship with the dependent contractor to such
extent that the arrangement that governs the performance of services by
the dependent contractor for that person can be the subject of
collective bargaining;
"employers' organization" ®organisation patronale¯
"employers' organization" means any organization of employers the
purposes of which include the regulation of relations between employers
and employees;
"lockout" ® lock-out ¯
"lockout" includes the closing of a place of employment, a suspension of
work by an employer or a refusal by an employer to continue to employ a
number of their employees, done to compel their employees, or to aid
another employer to compel that other employer's employees, to agree to
terms or conditions of employment;
"parties" ® parties ¯
"parties" means
(a) in relation to the entering into, renewing or revising of a
collective agreement and in relation to a dispute, the employer and the
bargaining agent that acts on behalf of the employer's employees,
(b) in relation to a difference relating to the interpretation,
application, administration or alleged contravention of a collective
agreement, the employer and the bargaining agent, and
(c) in relation to a complaint to the Board under this Part, the
complainant and any person or organization against whom or which the
complaint is made;
"private constable" ® agent de police priv‚ ¯
"private constable" means a person appointed as a constable under Part
III of the Canada Transportation Act;
"professional employee" ®membre de profession lib‚rale¯
"professional employee" means an employee who
(a) is, in the course of their employment, engaged in the application of
specialized knowledge ordinarily acquired by a course of instruction and
study resulting in graduation from a university or similar institution,
and
(b) is, or is eligible to be, a member of a professional organization
that is authorized by statute to establish the qualifications for
membership in the organization;
"strike" ®grŠve¯
"strike" includes a cessation of work or a refusal to work or to
continue to work by employees, in combination, in concert or in
accordance with a common understanding, and a slowdown of work or other
concerted activity on the part of employees in relation to their work
that is designed to restrict or limit output;
"trade union" ®syndicat¯
"trade union" means any organization of employees, or any branch or
local thereof, the purposes of which include the regulation of relations
between employers and employees;
"unit" ®unit‚¯
"unit" means a group of two or more employees.
Employee status preserved
(2) No person ceases to be an employee within the meaning of this Part
by reason only of their ceasing to work as the result of a lockout or
strike or by reason only of their dismissal contrary to this Part.
R.S., 1985, c. L-2, s. 3; 1996, c. 10, s. 234; 1998, c. 10, s. 182, c.
26, ss. 1, 59(E); 1999, c. 31, ss. 149(E), 162(E).
Application
Application of Part
4. This Part applies in respect of employees who are employed on or in
connection with the operation of any federal work, undertaking or
business, in respect of the employers of all such employees in their
relations with those employees and in respect of trade unions and
employers' organizations composed of those employees or employers.
R.S., c. L-1, s. 108; 1972, c. 18, s. 1.
Crown corporations
5. (1) This Part applies in respect of any corporation established to
perform any function or duty on behalf of the Government of Canada and
in respect of the employees of any such corporation, except any such
corporation, and the employees thereof, that the Governor in Council
excludes from the operation of this Part.
Limitation
(2) The Governor in Council may, pursuant to subsection (1), exclude
from the operation of this Part only those corporations in respect of
which a minister of the Crown, the Treasury Board or the Governor in
Council is authorized to establish or to approve some or all of the
terms and conditions of employment of persons employed therein.
Idem
(3) Where the Governor in Council excludes any corporation from the
operation of this Part, the Governor in Council shall, by order, add the
name of that corporation to Part I or II of Schedule I to the Public
Service Staff Relations Act.
R.S., c. L-1, s. 109; 1972, c. 18, s. 1.
Canadian carriers
5.1 This Part applies in respect of any Canadian carrier, as defined in
section 2 of the Telecommunications Act, that is an agent of Her Majesty
in right of a province and in respect of the employees of the carrier.
1993, c. 38, s. 88.
Employees of Her Majesty
6. Except as provided by section 5, this Part does not apply in respect
of employment by Her Majesty in right of Canada.
1972, c. 18, s. 1.
Major Projects
Major projects
7. Nothing in this Part shall be construed so as to prevent the
establishment of agreements on a project basis and where all the parties
in a collective bargaining relationship identify themselves to the
Minister as being engaged in a project that the Minister determines to
be a major project, the Minister and the Board shall act as
expeditiously as possible to facilitate the collective bargaining
process involving those parties.
1984, c. 39, s. 22.
DIVISION I
BASIC FREEDOMS
Employee freedoms
8. (1) Every employee is free to join the trade union of their choice
and to participate in its lawful activities.
Employer freedoms
(2) Every employer is free to join the employers' organization of their
choice and to participate in its lawful activities.
R.S., 1985, c. L-2, s. 8; 1999, c. 31, s. 162(E).
DIVISION II
CANADA INDUSTRIAL RELATIONS BOARD
Establishment and Organization
Establishment of Board
9. (1) A board is established, to be known as the Canada Industrial
Relations Board.
Composition of Board
(2) The Board is composed of
(a) a Chairperson, to hold office on a full-time basis;
(b) two or more Vice-Chairpersons, to hold office on a full-time basis,
and any other Vice-Chairpersons, to hold office on a part-time basis,
that the Governor in Council considers necessary to discharge the
responsibilities of the Board;
(c) not more than six other members, of which not more than three
represent employees, and of which not more than three represent
employers, to hold office on a full-time basis;
(d) any other part-time members, representing, in equal numbers,
employees and employers, that the Governor in Council considers
necessary to discharge the responsibilities of the Board; and
(e) any other part-time members that the Governor in Council considers
necessary to assist the Board in carrying out its functions under Part
II.
R.S., 1985, c. L-2, s. 9; 1998, c. 26, s. 2.
Appointment of Chairperson and Vice-Chairpersons
10. (1) The Chairperson and Vice-Chairpersons of the Board are to be
appointed by the Governor in Council, on the recommendation of the
Minister, to hold office during good behaviour for terms not exceeding
five years each, subject to removal by the Governor in Council at any
time for cause.
Appointment of other members
(2) Subject to subsection (3), the members of the Board other than the
Chairperson and the Vice-Chairpersons are to be appointed by the
Governor in Council on the recommendation of the Minister after
consultation by the Minister with the organizations representative of
employees or employers that the Minister considers appropriate, to hold
office during good behaviour for terms not exceeding three years each,
subject to removal by the Governor in Council at any time for cause.
Exception
(3) The members of the Board appointed pursuant to paragraph 9(2)(e) are
to be appointed by the Governor in Council, on the recommendation of the
Minister, to hold office during good behaviour for terms not exceeding
three years each, subject to removal by the Governor in Council at any
time for cause.
Requirement for appointment
(4) The members of the Board must be Canadian citizens or permanent
residents within the meaning of the Immigration Act.
Chairperson and Vice-Chairpersons
(5) The Chairperson and Vice-Chairpersons must have experience and
expertise in industrial relations.
R.S., 1985, c. L-2, s. 10; 1998, c. 26, s. 2.
Residence of members
10.1 The full-time members of the Board must reside in the National
Capital Region as described in the schedule to the National Capital Act
or within the distance from the National Capital Region that is
determined by the Governor in Council.
1998, c. 26, s. 2.
Full-time occupation
11. (1) The full-time members of the Board must not hold any other
employment or office in respect of which they receive any remuneration.
Part-time occupation
(2) A part-time Vice-Chairperson, or a member appointed pursuant to
paragraph 9(2)(e), must not hold any other employment or office in
respect of which they receive any remuneration and that is inconsistent
with their duties under this Act.
R.S., 1985, c. L-2, s. 11; 1998, c. 26, s. 2.
Reappointment
12. (1) A member of the Board is eligible for reappointment on the
expiration of any term of office in the same or another capacity.
Completion of duties
(2) Where a member of the Board ceases to be a member of the Board for
any reason other than removal, the member may, despite anything in this
Part, at the request of the Chairperson, carry out and complete any
duties or responsibilities that the member would otherwise have had if
the member had not ceased to be a member, in connection with any matter
that came before the Board while the member was still a member of the
Board and in respect of which there was any proceeding in which the
member participated as a member.
R.S., 1985, c. L-2, s. 12; 1998, c. 26, s. 2.
Chief executive officer
12.01 (1) The Chairperson is the chief executive officer of the Board
and has supervision over and direction of the work of the Board,
including
(a) the assignment and reassignment of matters that the Board is seized
of to panels;
(b) the composition of panels and the assignment of Vice-Chairpersons to
preside over panels;
(c) the determination of the date, time and place of hearings;
(d) the conduct of the work of the Board;
(e) the management of the Board's internal affairs; and
(f) the duties of the staff of the Board.
Delegation
(2) The Chairperson may delegate to a Vice-Chairperson any of the
Chairperson's powers, duties and functions under subsection (1).
Delegation to staff member
(3) The Chairperson may delegate to a member of the staff of the Board
any of the Chairperson's powers, duties and functions under paragraph
(1)(e) or (f).
1998, c. 26, s. 2.
Meetings
12.02 (1) The Chairperson convenes and presides over any meeting of the
Board concerning the making of regulations under section 15.
Quorum
(2) For the purposes of subsection (1), five persons, namely, the
Chairperson, two Vice-Chairpersons and two other members representing,
respectively, employees and employers, constitute a quorum.
Equal representation
(3) At a meeting referred to in subsection (1) at which there is an
unequal number of members representing employers and employees, the
Chairperson shall designate an equal number of members who are
authorized to vote on any matter and who represent employers and
employees respectively.
1998, c. 26, s. 2.
Acting Chairperson
12.03 If the Chairperson of the Board is absent or unable to act or the
office of Chairperson is vacant, a Vice-Chairperson designated by the
Minister acts as Chairperson for the time being, and a Vice-Chairperson
so designated has and may exercise all the powers and perform all the
duties and functions of the Chairperson.
1998, c. 26, s. 2.
Remuneration
12.04 (1) The full-time members of the Board shall be paid any
remuneration, and the part-time members of the Board and members of the
Board carrying out duties and responsibilities under subsection 12(2)
shall be paid any fees, that may be fixed by the Governor in Council.
Travel and living expenses
(2) The members of the Board are entitled to be paid reasonable travel
and living expenses incurred by them in the course of their duties under
this Act while absent from, in the case of full-time members, their
ordinary place of work and, in the case of part-time members and members
carrying out duties and responsibilities under subsection 12(2), their
ordinary place of residence.
1998, c. 26, s. 2.
Compensation
12.05 Each member of the Board is deemed to be an employee for the
purposes of the Government Employees Compensation Act and to be employed
in the public service of Canada for the purposes of any regulations made
under section 9 of the Aeronautics Act.
1998, c. 26, s. 2.
Inquiries
12.06 The Chairperson may request the Minister to decide whether any
member of the Board should be subject to remedial or disciplinary
measures for any reason set out in paragraphs 12.14(2)(a) to (d).
1998, c. 26, s. 2.
Measures
12.07 On receipt of the request, the Minister may take one or more of
the following measures:
(a) obtain, in an informal and expeditious manner, any information that
the Minister considers necessary;
(b) refer the matter for mediation, where the Minister is satisfied that
the issues in relation to the request may be appropriately resolved by
mediation;
(c) request the Governor in Council to have an inquiry held under
section 12.08; or
(d) advise the Chairperson that the Minister considers that it is not
necessary to take further measures under this section.
1998, c. 26, s. 2.
Appointment of inquirer
12.08 On receipt of a request referred to in paragraph 12.07(c), the
Governor in Council may, on the recommendation of the Minister of
Justice, appoint a judge of a superior court to conduct the inquiry.
1998, c. 26, s. 2.
Powers
12.09 The judge has all the powers, rights and privileges that are
vested in a superior court, including the power
(a) to issue a summons requiring any person to appear at the time and
place mentioned in the summons to testify about all matters within that
person's knowledge relative to the inquiry and to produce any document
or thing relative to the inquiry; and
(b) to administer oaths and examine any person on oath.
1998, c. 26, s. 2.
Staff
12.10 The judge may engage the services of counsel and other persons
having technical or specialized knowledge to assist the judge in
conducting the inquiry, establish the terms and conditions of their
engagement and, with the approval of the Treasury Board, fix and pay
their remuneration and expenses.
1998, c. 26, s. 2.
Inquiry in public
12.11 (1) Subject to subsections (2) and (3), an inquiry must be
conducted in public.
Confidentiality of inquiry
(2) The judge may, on application, take any appropriate measures and
make any order that the judge considers necessary to ensure the
confidentiality of the inquiry if, after having considered all available
alternate measures, the judge is satisfied that
(a) there is a real and substantial risk that matters involving public
security will be disclosed;
(b) there is a real and substantial risk to the fairness of the inquiry
such that the need to prevent disclosure outweighs the societal interest
that the inquiry be conducted in public; or
(c) there is a serious possibility that the life, liberty or security of
a person will be endangered.
Confidentiality of application
(3) Where the judge considers it appropriate, the judge may take any
measures and make any order that the judge considers necessary to ensure
the confidentiality of a hearing held in respect of an application under
subsection (2).
1998, c. 26, s. 2.
Rules of evidence
12.12 (1) In conducting an inquiry, the judge is not bound by any legal
or technical rules of evidence and may receive, and base a decision on,
evidence presented in the proceedings that the judge considers credible
or trustworthy in the circumstances of the case.
Intervenors
(2) An interested party may, with leave of the judge, intervene in an
inquiry on the terms and conditions that the judge considers
appropriate.
1998, c. 26, s. 2.
Right to be heard
12.13 The member who is the subject of the inquiry must be given
reasonable notice of the subject-matter of the inquiry and of the time
and place of any hearing and must be given an opportunity, in person or
by counsel, to be heard at the hearing, to cross-examine witnesses and
to present evidence.
1998, c. 26, s. 2.
Report to Minister
12.14 (1) After an inquiry has been completed, the judge shall submit a
report containing the judge's findings and recommendations, if any, to
the Minister.
Recommendations
(2) The judge may, in the report, recommend that the member be suspended
without pay or removed from office or that any other disciplinary
measure or any remedial measure be taken if, in the opinion of the
judge, the member
(a) has become incapacitated from the proper execution of that office by
reason of infirmity;
(b) has been guilty of misconduct;
(c) has failed in the proper execution of that office; or
(d) has been placed, by conduct or otherwise, in a position that is
incompatible with the due execution of that office.
1998, c. 26, s. 2.
Transmission of report to Governor in Council
12.15 Where the Minister receives a report of an inquiry in which the
judge makes a recommendation, the Minister shall send the report to the
Governor in Council, who may, where the Governor in Council considers it
appropriate, suspend the member without pay, remove the member from
office or impose any other disciplinary measure or any remedial measure.
1998, c. 26, s. 2.
Head office
13. The head office of the Board must be in the National Capital Region
as described in the schedule to the National Capital Act but the Board
may establish any other offices elsewhere in Canada that the Chairperson
considers necessary for the proper performance of the Board's mandate.
R.S., 1985, c. L-2, s. 13; 1998, c. 26, s. 2.
Staff
13.1 The employees who are necessary for the proper conduct of the work
of the Board are to be appointed in accordance with the Public Service
Employment Act.
1998, c. 26, s. 2.
Panels
14. (1) Subject to subsection (3), a panel of not less than three
members, at least one of whom is the Chairperson or a Vice-Chairperson,
may determine any matter that comes before the Board under this Part.
Equal representation
(2) Where a panel formed under subsection (1) is composed of one or more
members representing employees, an equal number of members representing
employers must also form part of the panel and vice versa.
Exception - single member
(3) The Chairperson or a Vice-Chairperson may alone determine a matter
that comes before the Board under this Part with respect to
(a) an uncontested application or question;
(b) a question referred to in paragraph 16(p);
(c) a complaint made under subsection 97(1) in respect of an alleged
contravention of section 37 or 69 or any of paragraphs 95(f) to (i);
(d) a request for an extension of time for instituting a proceeding;
(e) a preliminary proceeding; or
(f) any other matter, if the Chairperson determines that it is
appropriate because of the possibility of prejudice to a party, such as
undue delay, or if the parties consent to a determination by the
Chairperson or a Vice-Chairperson.
Where Chairperson or Vice-Chairperson determines alone
(4) A Chairperson or Vice-Chairperson making a determination under
subsection (3) is deemed to be a panel for the purposes of this Part.
Powers, rights and privileges
(5) A panel has all the powers, rights and privileges that are conferred
on the Board by this Part with respect to any matter assigned to the
panel under this Part.
Chairperson of the panel
(6) The Chairperson is the chairperson of any panel formed under
subsection (1) or, where the Chairperson is not a member of the panel,
he or she designates a Vice-Chairperson to be the chairperson of the
panel.
R.S., 1985, c. L-2, s. 14; 1998, c. 26, s. 2.
Continuation of proceeding
14.1 In the event of the death or incapacity of a member of a panel
formed under subsection 14(1) who represents either employees or
employers, the chairperson of the panel may determine any matter that
was before the panel and the chairperson's decision is deemed to be the
decision of the panel.
1998, c. 26, s. 2.
Decision of panel
14.2 (1) A decision made by a majority of the members of a panel or,
where there is no majority, by the chairperson of the panel is a
decision of the Board.
Time limit
(2) The panel must render its decision and give notice of it to the
parties no later than ninety days after the day on which it reserved its
decision or within any further period that may be determined by the
Chairperson.
1998, c. 26, s. 2.
Powers and Duties
Regulations
15. The Board may make regulations of general application respecting
(a) the establishment of rules of procedure for its pre-hearing
proceedings and hearings;
(a.1) the use of means of telecommunication that permit the parties and
the Board or its members to communicate simultaneously for pre-hearing
conferences, hearings and Board meetings;
(b) the determination of units appropriate for collective bargaining;
(c) the certification of trade unions as bargaining agents for
bargaining units;
(d) the conduct of representation votes;
(e) the specification of the period of time after which the Board may
receive an application from a trade union for certification as the
bargaining agent for a unit where the Board has refused an application
from the trade union for certification in respect of the same or
substantially the same unit;
(f) the specification of the period of time after which the Board may
receive an application from an employee for revocation of a trade
union's certification as the bargaining agent for a unit where the Board
has refused an application for revocation in respect of the same unit;
(g) the hearing or determination of any application, complaint,
question, dispute or difference that may be made or referred to the
Board;
(g.1) an expeditious procedure and matters that may be determined under
that procedure;
(h) the forms to be used in respect of any proceeding that may come
before the Board;
(i) the time within which and the circumstances under which the Board
may exercise its powers under section 18;
(j) any inquiry that the Board may make under subsection 34(2);
(k) the form in which and the period during which evidence and
information may be presented to the Board in connection with any
proceeding that may come before it;
(l) the specification of the time within which and the parties or
persons to whom notices and other documents shall be sent and the
circumstances in which such notices or other documents shall be deemed
to have been given or received by the Board or any party or person;
(m) the determination of the form in which and the period during which
evidence as to
(i) the membership of any employees in a trade union,
(ii) any objection by employees to the certification of a trade union,
or
(iii) any signification by employees that they no longer wish to be
represented by a trade union
shall be presented to the Board on an application made to it pursuant to
this Part;
(n) the criteria for determining whether an employee is a member of a
trade union;
(o) the circumstances in which evidence referred to in paragraph (m) may
be received by the Board as evidence that any employees wish or do not
wish to have a particular trade union represent them as their bargaining
agent, including the circumstances in which the evidence so received by
the Board may not be made public by the Board;
(o.1) the conditions for valid strike or lockout votes;
(p) the authority of any person to act on behalf of the Board and the
matters and things to be done and the action to be taken by that person,
including the authority of an employee of the Board to make decisions on
uncontested applications or questions; and
(q) such other matters and things as may be incidental or conducive to
the proper performance of the duties of the Board under this Part.
R.S., 1985, c. L-2, s. 15; 1998, c. 26, s. 3.
General power to assist parties
15.1 (1) The Board, or any member or employee of the Board designated by
the Board, may, if the parties agree, assist the parties in resolving
any issues in dispute at any stage of a proceeding and by any means that
the Board considers appropriate, without prejudice to the Board's power
to determine issues that have not been settled.
Declaratory opinions
(2) The Board, on application by an employer or a trade union, may give
declaratory opinions.
1998, c. 26, s. 4.
Powers of Board
16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to
give oral or written evidence on oath and to produce such documents and
things as the Board deems requisite to the full investigation and
consideration of any matter within its jurisdiction that is before the
Board in the proceeding;
(a.1) to order pre-hearing procedures, including pre-hearing conferences
that are held in private, and direct the times, dates and places of the
hearings for those procedures;
(a.2) to order that a hearing or a pre-hearing conference be conducted
using a means of telecommunication that permits the parties and the
Board to communicate with each other simultaneously;
(b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath,
affidavit or otherwise as the Board in its discretion sees fit, whether
admissible in a court of law or not;
(d) to examine, in accordance with any regulations of the Board, such
evidence as is submitted to it respecting the membership of any
employees in a trade union seeking certification;
(e) to examine documents forming or relating to the constitution or
articles of association of
(i) a trade union or council of trade unions that is seeking
certification, or
(ii) any trade union forming part of a council of trade unions that is
seeking certification;
(f) to make such examination of records and such inquiries as it deems
necessary;
(f.1) to compel, at any stage of a proceeding, any person to provide
information or produce the documents and things that may be relevant to
a matter before it, after providing the parties the opportunity to make
representations;
(g) to require an employer to post and keep posted in appropriate
places, or to transmit by any electronic means that the Board deems
appropriate, any notice that it considers necessary to bring to the
attention of any employees any matter relating to the proceeding;
(h) subject to such limitations as the Governor in Council may, in the
interests of defence or security, prescribe by regulation, to enter any
premises of an employer where work is being or has been done by
employees and to inspect and view any work, material, machinery,
appliances or articles therein and interrogate any person respecting any
matter that is before the Board in the proceeding;
(i) to order, at any time before the proceeding has been finally
disposed of by the Board, that
arisen or is likely to arise in the proceeding, whether or not such a
representation vote is provided for elsewhere in this Part, and
(ii) the ballots cast in any representation vote ordered by the Board
pursuant to subparagraph (i) or any other provision of this Part be
sealed in ballot boxes and not counted except as directed by the Board;
(j) to enter on the premises of an employer for the purpose of
conducting representation votes during working hours;
(k) to authorize any person to do anything that the Board may do under
paragraphs (a) to (h), (j), or (m) and to report to the Board thereon;
(l) to adjourn or postpone the proceeding from time to time;
(l.1) to defer deciding any matter, where the Board considers that the
matter could be resolved by arbitration or an alternate method of
resolution;
(m) to abridge or extend the time for doing any act, filing any document
or presenting any evidence in connection with a proceeding;
(m.1) to extend the time limits set out in this Part for instituting a
proceeding;
(n) to amend or permit the amendment of any document filed in connection
with the proceeding;
(o) to add a party to the proceeding at any stage of the proceeding;
(o.1) to summarily refuse to hear, or dismiss, a matter for want of
jurisdiction or lack of evidence; and
(p) to decide for all purposes of this Part any question that may arise
in the proceeding, including, without restricting the generality of the
foregoing, any question as to whether
(i) a person is an employer or an employee,
(ii) a person performs management functions or is employed in a
confidential capacity in matters relating to industrial relations,
(iii) a person is a member of a trade union,
(iv) an organization or association is an employers' organization, a
trade union or a council of trade unions,
(v) a group of employees is a unit appropriate for collective
bargaining,
(vi) a collective agreement has been entered into,
(vii) any person or organization is a party to or bound by a collective
agreement, and
(viii) a collective agreement is in operation.
R.S., 1985, c. L-2, s. 16; 1998, c. 26, s. 5.
Determination without oral hearing
16.1 The Board may decide any matter before it without holding an oral
hearing.
1998, c. 26, s. 6.
Determination of the wishes of the majority of the employees
17. Where the Board is required, in connection with any application made
under this Part, to determine the wishes of the majority of the
employees in a unit, it shall determine those wishes as of the date of
the filing of the application or as of such other date as the Board
considers appropriate.
1977-78, c. 27, s. 41; 1980-81-82-83, c. 47, s. 27.
Review or amendment of orders
18. The Board may review, rescind, amend, alter or vary any order or
decision made by it, and may rehear any application before making an
order in respect of the application.
R.S., c. L-1, s. 119; 1972, c. 18, s. 1.
Review of structure of bargaining units
18.1 (1) On application by the employer or a bargaining agent, the Board
may review the structure of the bargaining units if it is satisfied that
the bargaining units are no longer appropriate for collective
bargaining.
Agreement of parties
(2) If the Board reviews, pursuant to subsection (1) or section 35 or
45, the structure of the bargaining units, the Board
(a) must allow the parties to come to an agreement, within a period that
the Board considers reasonable, with respect to the determination of
bargaining units and any questions arising from the review; and
(b) may make any orders it considers appropriate to implement any
agreement.
Orders
(3) If the Board is of the opinion that the agreement reached by the
parties would not lead to the creation of units appropriate for
collective bargaining or if the parties do not agree on certain issues
within the period that the Board considers reasonable, the Board
determines any question that arises and makes any orders it considers
appropriate in the circumstances.
Content of orders
(4) For the purposes of subsection (3), the Board may
(a) determine which trade union shall be the bargaining agent for the
employees in each bargaining unit that results from the review;
(b) amend any certification order or description of a bargaining unit
contained in any collective agreement;
(c) if more than one collective agreement applies to employees in a
bargaining unit, decide which collective agreement is in force;
(d) amend, to the extent that the Board considers necessary, the
provisions of collective agreements respecting expiry dates or seniority
rights, or amend other such provisions;
(e) if the conditions of paragraphs 89(1)(a) to (d) have been met with
respect to some of the employees in a bargaining unit, decide which
terms and conditions of employment apply to those employees until the
time that a collective agreement becomes applicable to the unit or the
conditions of those paragraphs are met with respect to the unit; and
(f) authorize a party to a collective agreement to give notice to
bargain collectively.
1998, c. 26, s. 7.
Application of orders
19. Where, under this Part, the Board may make or issue any order or
decision, prescribe any term or condition or do any other thing in
relation to any person or organization, the Board may do so, either
generally or in any particular case or class of cases.
R.S., c. L-1, s. 120; 1972, c. 18, s. 1.
Interim orders
19.1 The Board may, on application by a trade union, an employer or an
affected employee, make any interim order that the Board considers
appropriate for the purpose of ensuring the fulfilment of the objectives
of this Part.
1998, c. 26, s. 8.
Interim decision
20. (1) Where, in order to dispose finally of an application or
complaint, it is necessary for the Board to determine two or more issues
arising therefrom, the Board may, if it is satisfied that it can do so
without prejudice to the rights of any party to the proceeding, issue a
decision resolving only one or some of those issues and reserve its
jurisdiction to dispose of the remaining issues.
Decision final
(2) A decision referred to in subsection (1) is, except as stipulated by
the Board, final.
Definition of "decision"
(3) In this section, "decision" includes an order, a determination and a
declaration.
1977-78, c. 27, s. 42.
Exercise of powers and duties
21. The Board shall exercise such powers and perform such duties as are
conferred or imposed on it by this Part, or as may be incidental to the
attainment of the objects of this Part, including, without restricting
the generality of the foregoing, the making of orders requiring
compliance with the provisions of this Part, with any regulation made
under this Part or with any decision made in respect of a matter before
the Board.
R.S., c. L-1, s. 121; 1972, c. 18, s. 1.
Review and Enforcement of Orders
Orders not to be reviewed by court
22. (1) Subject to this Part, every order or decision of the Board is
final and shall 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.
Standing of Board
(1.1) 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.
No review by certiorari, etc.
(2) 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 shall
(a) be questioned, reviewed, prohibited or restrained, or
(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,
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.
R.S., 1985, c. L-2, s. 22; 1990, c. 8, s. 56; 1998, c. 26, s. 9.
Filing of Board's orders in Federal Court
23. (1) The Board shall, on the request in writing of any person or
organization affected by any order or decision of the Board, file a copy
of the order or decision, exclusive of the reasons therefor, in the
Federal Court, unless, in the opinion of the Board,
(a) there is no indication of failure or likelihood of failure to comply
with the order or decision; or
(b) there is other good reason why the filing of the order or decision
in the Federal Court would serve no useful purpose.
Registration of order and proceedings thereon
(2) Where the Board files a copy of any order or decision in the Federal
Court pursuant to subsection (1), it shall specify in writing to the
Court that the copy of the order or decision is filed pursuant to that
subsection and, where the Board so specifies, the copy of the order or
decision shall be accepted for filing by, and registered in, the Court
without further application or other proceeding.
Effect of registration of order or decision
(3) When a copy of any order or decision of the Board is registered
pursuant to subsection (2), the order or decision has the same force and
effect as a judgment obtained in the Federal Court and, subject to this
section and the Federal Court Act, all proceedings may be taken thereon
by any person or organization affected thereby as if the order or
decision were a judgment of that Court.
R.S., 1985, c. L-2, s. 23; 1990, c. 8, s. 57.
Filing of orders in provincial superior court
23.1 The Board may, on application by a person or organization affected
by an order or decision of the Board, file a copy of the order or
decision, exclusive of the reasons for it, in the superior court of a
province. Section 23 applies, with the modifications that the
circumstances require, to an order or decision filed in such a superior
court.
1998, c. 26, s. 10.
DIVISION III
ACQUISITION AND TERMINATION OF BARGAINING RIGHTS
Application for Certification
Application for certification
24. (1) A trade union seeking to be certified as the bargaining agent
for a unit that the trade union considers constitutes a unit appropriate
for collective bargaining may, subject to this section and any
regulations made by the Board under paragraph 15(e), apply to the Board
for certification as the bargaining agent for the unit.
Time of application
(2) Subject to subsection (3), an application by a trade union for
certification as the bargaining agent for a unit may be made
(a) where no collective agreement applicable to the unit is in force and
no trade union has been certified under this Part as the bargaining
agent for the unit, at any time;
(b) where no collective agreement applicable to the unit is in force but
a trade union has been certified under this Part as the bargaining agent
for the unit, after the expiration of twelve months from the date of
that certification or, with the consent of the Board, at any earlier
time;
(c) where a collective agreement applicable to the unit is in force and
is for a term of not more than three years, only after the commencement
of the last three months of its operation; and
(d) where a collective agreement applicable to the unit is in force and
is for a term of more than three years, only after the commencement of
the thirty-fourth month of its operation and before the commencement of
the thirty-seventh month of its operation and, thereafter, only
(i) during the three month period immediately preceding the end of each
year that the collective agreement continues to operate after the third
year of its operation, and
(ii) after the commencement of the last three months of its operation.
No application during strike or lockout
(3) An application for certification under subsection (2) in respect of
a unit must not, except with the consent of the Board, be made during a
strike or lockout that is not prohibited by this Part and that involves
employees in the unit.
Terms or conditions of employment not to be changed
(4) Where an application by a trade union for certification as the
bargaining agent for a unit is made in accordance with this section, no
employer of employees in the unit shall, after notification that the
application has been made, alter the rates of pay, any other term or
condition of employment or any right or privilege of such employees
until
(a) the application has been withdrawn by the trade union or dismissed
by the Board, or
(b) thirty days have elapsed after the day on which the Board certifies
the trade union as the bargaining agent for the unit,
except pursuant to a collective agreement or with the consent of the
Board.
R.S., 1985, c. L-2, s. 24; 1993, c. 42, s. 1(F); 1998, c. 26, s. 11.
Exception
24.1 A trade union that is not certified but has entered into a
collective agreement the term of which has not expired may, despite
paragraphs 24(2)(c) and (d), make an application for certification at
any time, in respect of the unit to which the collective agreement
applies or substantially the same unit.
1998, c. 26, s. 12.
Where certification prohibited
25. (1) Notwithstanding anything in this Part, where the Board is
satisfied that a trade union is so dominated or influenced by an
employer that the fitness of the trade union to represent employees of
the employer for the purpose of collective bargaining is impaired, the
Board shall not certify the trade union as the bargaining agent for any
unit comprised of employees of the employer and any collective agreement
between the trade union and the employer that applies to any such
employees shall be deemed not to be a collective agreement for the
purposes of this Part.
Idem
(2) Notwithstanding anything in this Part, where the Board is satisfied
that a trade union denies membership in the trade union to any employee
or class of employees in a bargaining unit by virtue of a policy or
practice that the trade union applies relating to qualifications for
membership in the trade union, the Board shall not certify the trade
union as the bargaining agent for the bargaining unit and any collective
agreement between the trade union and the employer of the employees in
the bargaining unit that applies to the bargaining unit shall be deemed
not to be a collective agreement for the purposes of this Part.
R.S., c. L-1, s. 134; 1972, c. 18, s. 1.
Where certification prohibited
26. The Board shall not certify a trade union as, and a trade union
shall not act as, the bargaining agent for both a bargaining unit
comprised of private constables and a bargaining unit comprised of
employees other than private constables if any or all of the employees
in both such bargaining units are employed by the same employer.
R.S., c. L-1, s. 135; 1972, c. 18, s. 1.
Determination of Bargaining Units
Determination of appropriate unit
27. (1) Where a trade union applies under section 24 for certification
as the bargaining agent for a unit that the trade union considers
appropriate for collective bargaining, the Board shall determine the
unit that, in the opinion of the Board, is appropriate for collective
bargaining.
Idem
(2) In determining whether a unit constitutes a unit that is appropriate
for collective bargaining, the Board may include any employees in or
exclude any employees from the unit proposed by the trade union.
Professional employees
(3) Where a trade union applies under section 24 for certification as
the bargaining agent for a unit comprised of or including professional
employees, the Board, subject to subsections (2) and (4), shall
determine that the unit appropriate for collective bargaining is a unit
comprised of only professional employees, unless such a unit would not
otherwise be appropriate for collective bargaining.
Idem
(4) In determining that a unit is appropriate for collective bargaining
under subsection (3), the Board may include in the unit
(a) professional employees of more than one profession; and
(b) employees performing the functions, but lacking the qualifications,
of a professional employee.
Supervisory employees
unit proposed in the application is appropriate for collective
bargaining.
Private constables
(6) The Board shall not include a private constable in a unit with other
employees.
R.S., c. L-1, s. 125; 1972, c. 18, s. 1.
Certification of Bargaining Agents and Related Matters
Duty to certify trade union
28. Where the Board
(a) has received from a trade union an application for certification as
the bargaining agent for a unit,
(b) has determined the unit that constitutes a unit appropriate for
collective bargaining, and
(c) is satisfied that, as of the date of the filing of the application
or of such other date as the Board considers appropriate, a majority of
the employees in the unit wish to have the trade union represent them as
their bargaining agent,
the Board shall, subject to this Part, certify the trade union making
the application as the bargaining agent for the bargaining unit.
R.S., c. L-1, s. 126; 1972, c. 18, s. 1; 1977-78, c. 27, s. 45.
Representation vote
29. (1) The Board may, in any case, for the purpose of satisfying itself
as to whether employees in a unit wish to have a particular trade union
represent them as their bargaining agent, order that a representation
vote be taken among the employees in the unit.
Employees not in a unit
(1.1) Any person who was not an employee in the bargaining unit on the
date on which notice to bargain collectively was given, and was hired or
assigned after that date to perform all or part of the duties of an
employee in the bargaining unit on strike or locked out, is not an
employee in the unit.
Mandatory vote
(2) Where a trade union applies for certification as the bargaining
agent for a unit in respect of which no other trade union is the
bargaining agent, and the Board is satisfied that not less than thirty-
five per cent and not more than fifty per cent of the employees in the
unit are members of the trade union, the Board shall order that a
representation vote be taken among the employees in the unit.
Determination of union membership
(3) Where the Board is satisfied that a trade union has an established
practice of admitting persons to membership without regard to the
eligibility requirements of its charter, constitution or by-laws, the
Board may disregard those requirements in determining whether a person
is a member of a trade union.
R.S., 1985, c. L-2, s. 29; 1998, c. 26, s. 13.
Conduct of vote
30. (1) Where the Board orders that a representation vote be taken among
employees in a unit, the Board shall
(a) determine the employees that are eligible to vote; and
(b) make such arrangements and give such directions as the Board
considers necessary 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.
Choice
(2) Where the Board orders that a representation vote be taken on an
application by a trade union for certification as the bargaining agent
for a unit in respect of which no other trade union is the bargaining
agent, the Board shall include on the ballots a choice whereby an
employee may indicate that they do not wish to be represented by any
trade union named on the ballots.
Exception
(3) Notwithstanding subsection (2), where the employees in a unit have
cast ballots in favour of all trade unions involved in a representation
vote totalling more than fifty per cent of all the ballots cast but have
not given majority support to one trade union in that vote and, as a
result, a second or subsequent representation vote is required, the
Board shall not be required to include the choice referred to in
subsection (2) in the ballots for the second or subsequent vote.
R.S., 1985, c. L-2, s. 30; 1998, c. 26, s. 14(F); 1999, c. 31, s.
150(E).
Result of representation vote
31. (1) Subject to subsection (2), the Board shall determine the result
of a representation vote on the basis of the ballots cast by the
majority of employees voting.
Idem
(2) Where, on considering the result of a representation vote, the Board
determines that less than thirty-five per cent of the employees who are
eligible to vote have voted, the Board shall determine that the
representation vote is void.
Idem
(3) A vote by the majority of the employees voting in a representation
vote is evidence that a majority of employees in the unit in respect of
which the vote was ordered are of the opinion expressed in the vote of
the majority of employees voting.
R.S., c. L-1, s. 129; 1972, c. 18, s. 1.
Council of trade unions
32. (1) Where two or more trade unions have formed a council of trade
unions, the council so formed may apply to the Board for certification
as the bargaining agent for a unit in the same manner as a trade union.
Certification of council of trade unions
(2) The Board may certify a council of trade unions as the bargaining
agent for a bargaining unit where the Board is satisfied that the
requirements for certification prescribed by or pursuant to this Part
have been met.
Membership in council of trade unions
(3) Membership in any trade union that forms part of a council of trade
unions is deemed to be membership in the council of trade unions.
Council of trade unions bound by collective agreement
(4) Where a council of trade unions is certified by the Board as the
bargaining agent for a bargaining unit,
(a) the council of trade unions and each trade union forming the council
of trade unions is bound by any collective agreement entered into by the
council of trade unions and the employer concerned; and
(b) this Part applies, except as otherwise provided, as if the council
of trade unions were a trade union.
R.S., c. L-1, s. 130; 1972, c. 18, s. 1; 1977-78, c. 27, s. 48.
Designation of employers' organization
33. (1) Where a trade union applies for certification as the bargaining
agent for a unit comprised of employees of two or more employers who
have formed an employers' organization, the Board may designate the
employers' organization to be the employer if it is satisfied that each
of the employers forming the employers' organization has granted
appropriate authority to the employers' organization to enable it to
discharge the duties and responsibilities of an employer under this
Part.
New members
(1.1) The Board may, on application by the employers' organization,
include in the designation referred to in subsection (1) any employer
that becomes a member of the employers' organization if it is satisfied
that that employer has granted appropriate authority to the employers'
organization to enable the employers' organization to discharge the
duties and responsibilities of an employer and that such an inclusion
would ensure the fulfilment of the objectives of this Part.
Designated employers' organization deemed to be employer
(2) Where the Board designates an employers' organization as an employer
pursuant to subsection (1),
(a) the employers' organization and each employer forming the employers'
organization is bound by any collective agreement entered into by the
employers' organization and the trade union concerned; and
(b) this Part applies, except as otherwise provided, as if the
employers' organization were an employer.
Employer ceasing to be member of employers' organization
(3) Where an employer ceases to be a member of an employers'
organization or withdraws the authority referred to in subsection (1) or
(1.1) that the employer granted to the employers' organization, the
employer
(a) continues to be bound by any collective agreement applicable to the
employer's employees that was entered into by the employers'
organization; and
(b) may be required to commence collective bargaining in accordance with
section 48.
R.S., 1985, c. L-2, s. 33; 1998, c. 26, s. 15; 1999, c. 31, s. 151(E).
Certification in long-shoring and other industries
34. (1) Where employees are employed in
(a) the long-shoring industry, or
(b) such other industry in such geographic area as may be designated by
regulation of the Governor in Council on the recommendation of the
Board,
the Board may determine that the employees of two or more employers
actively engaged in the industry in the geographic area constitute a
unit appropriate for collective bargaining and may, subject to this
Part, certify a trade union as the bargaining agent for the unit.
Recommendation of Board
(2) No recommendation under paragraph (1)(b) shall be made by the Board
unless, on inquiry, it is satisfied that the employers actively engaged
in an industry in a particular geographic area obtain their employees
from a group of employees the members of which are employed from time to
time by some or all of those employers.
Representative
(3) Where the Board, pursuant to subsection (1), certifies a trade union
as the bargaining agent for a bargaining unit, the Board shall, by
order,
(a) require the employers of the employees in the bargaining unit
(i) to jointly choose a representative, and
(ii) to inform the Board of their choice within the time period
specified by the Board; and
(b) appoint the representative so chosen as the employer representative
for those employers.
Powers of Board
(4) Where the employers fail to comply with an order made under
paragraph (3)(a), the Board shall, after affording to the employers a
reasonable opportunity to make representations, by order, appoint an
employer representative of its own choosing.
New representative
(4.1) On application by one or more employers of employees in the
bargaining unit, the Board may, if it is satisfied that the employer
representative is no longer qualified to act in that capacity, revoke
the appointment of the employer representative and appoint a new
representative.
Status of employer representative
(5) An employer representative shall be deemed to be an employer for the
purposes of this Part and, by virtue of having been appointed under this
section, has the power to, and shall, discharge all the duties and
responsibilities of an employer under this Part on behalf of all the
employers of the employees in the bargaining unit, including the power
to enter into a collective agreement on behalf of those employers.
Costs
(5.1) The employer representative may require each employer of employees
in the bargaining unit to remit its share of the costs that the employer
representative has incurred or estimates will be incurred in fulfilling
its duties and responsibilities under this Part and under the terms of
the collective agreement.
Duty of employer representative
(6) In the discharge of the duties and responsibilities of an employer
under this Part, an employer representative, or a person acting for such
a representative, shall not act in a manner that is arbitrary,
discriminatory or in bad faith in the representation of any of the
employers on whose behalf the representative acts.
Board to determine questions
(7) The Board shall determine any question that arises under this
section, including any question relating to the choice or appointment of
the employer representative.
R.S., 1985, c. L-2, s. 34; 1991, c. 39, s. 1; 1998, c. 26, s. 16.
Board may declare single employer
35. (1) Where, on application by an affected trade union or employer,
associated or related federal works, undertakings or businesses are, in
the opinion of the Board, operated by two or more employers having
common control or direction, the Board may, by order, declare that for
all purposes of this Part the employers and the federal works,
undertakings and businesses operated by them that are specified in the
order are, respectively, a single employer and a single federal work,
undertaking or business. Before making such a declaration, the Board
must give the affected employers and trade unions the opportunity to
make representations.
Review of bargaining units
(2) The Board may, in making a declaration under subsection (1),
determine whether the employees affected constitute one or more units
appropriate for collective bargaining.
R.S., 1985, c. L-2, s. 35; 1998, c. 26, s. 17.
Effect of certification
36. (1) Where a trade union is certified as the bargaining agent for a
bargaining unit,
(a) the trade union so certified has exclusive authority to bargain
collectively on behalf of the employees in the bargaining unit;
(b) the certification of any trade union that was previously certified
as the bargaining agent for any employees in the bargaining unit is
deemed to be revoked to the extent that the certification relates to
those employees;
(c) the trade union so certified is substituted as a party to any
collective agreement that affects any employees in the bargaining unit,
to the extent that the collective agreement relates to those employees,
in the place of the bargaining agent named in the collective agreement
or any successor thereto; and
(d) the trade union so certified is deemed to be the bargaining agent
for the purposes of paragraph 50(b).
Notice to bargain
(2) Where, pursuant to paragraph (1)(c), a trade union is substituted as
a party to a collective agreement, the trade union may, within three
months after the date on which it is certified as the bargaining agent
for a bargaining unit affected by the collective agreement, require the
employer who is a party to the collective agreement to commence
collective bargaining for the purpose of renewing or revising the
collective agreement or entering into a new collective agreement.
Limitation
(3) Subsection (2) does not apply to a trade union certified as a result
of an application made under section 24.1.
R.S., 1985, c. L-2, s. 36; 1998, c. 26, s. 18.
Just cause requirement
36.1 (1) During the period that begins on the date of certification and
ends on the date on which a first collective agreement is entered into,
the employer must not dismiss or discipline an employee in the affected
bargaining unit without just cause.
Arbitration
(2) Where a disagreement relating to the dismissal or discipline of an
employee during the period referred to in subsection (1) arises between
the employer and the bargaining agent,
(a) the bargaining agent may submit the disagreement to an arbitrator
for final settlement as if it were a difference; and
(b) sections 57 to 66 apply, with the modifications that the
circumstances require, to the disagreement.
1998, c. 26, s. 19.
Duty of fair representation
37. A trade union or representative of a trade union that is the
bargaining agent for a bargaining unit shall not act in a manner that is
arbitrary, discriminatory or in bad faith in the representation of any
of the employees in the unit with respect to their rights under the
collective agreement that is applicable to them.
1977-78, c. 27, s. 49; 1984, c. 39, s. 28.
Revocation of Certification and Related Matters
Application for revocation of certification
38. (1) Where a trade union has been certified as the bargaining agent
for a bargaining unit, any employee who claims to represent a majority
of the employees in the bargaining unit may, subject to subsection (5),
apply to the Board for an order revoking the certification of that trade
union.
Time for application
(2) An application for an order pursuant to subsection (1) may be made
in respect of a bargaining agent for a bargaining unit,
(a) where a collective agreement applicable to the bargaining unit is in
force, only during a period in which an application for certification of
a trade union is authorized to be made pursuant to section 24 unless the
Board consents to the making of the application for the order at some
other time; and
(b) where no collective agreement applicable to the bargaining unit is
in force, at any time after a period of one year from the date of
certification of the trade union.
Application for order that bargaining agent not entitled to represent
bargaining unit
(3) Where a collective agreement applicable to a bargaining unit is in
force but the bargaining agent that is a party to the collective
agreement has not been certified by the Board, any employee who claims
to represent a majority of the employees in the bargaining unit may,
subject to subsection (5), apply to the Board for an order declaring
that the bargaining agent is not entitled to represent the employees in
the bargaining unit.
Time for application
(4) An application for an order pursuant to subsection (3) may be made
in respect of a bargaining agent for a bargaining unit,
(a) during the term of the first collective agreement that is entered
into by the employer of the employees in the bargaining unit and the
bargaining agent,
(i) at any time during the first year of the term of that collective
agreement, and
(ii) thereafter, except with the consent of the Board, only during a
period in which an application for certification of a trade union is
authorized to be made pursuant to section 24; and
(b) in any other case, except with the consent of the Board, only during
a period in which an application for certification of a trade union is
authorized to be made pursuant to section 24.
No application where strike or lockout
(5) An application under subsection (1) or (3) must not, except with the
consent of the Board, be made in respect of the bargaining agent for
employees in a bargaining unit during a strike or lockout of those
employees that is not prohibited by this Part.
R.S., 1985, c. L-2, s. 38; 1998, c. 26, s. 20.
Order revoking certification or declaring bargaining agent not entitled
to represent bargaining unit
39. (1) Where, on receipt of an application for an order made under
subsection 38(1) or (3) in respect of a bargaining agent for a
bargaining unit, and after such inquiry by way of a representation vote
or otherwise as the Board considers appropriate in the circumstances,
the Board is satisfied that a majority of the employees in the
bargaining unit no longer wish to have the bargaining agent represent
them, the Board shall, subject to subsection (2), by order,
(a) in the case of an application made under subsection 38(1), revoke
the certification of the trade union as the bargaining agent for the
bargaining unit; or
(b) in the case of an application made under subsection 38(3), declare
that the bargaining agent is not entitled to represent the employees in
the bargaining unit.
Limitation
(2) Where no collective agreement applicable to a bargaining unit is in
force, no order shall be made pursuant to paragraph (1)(a) in relation
to the bargaining agent for the bargaining unit unless the Board is
satisfied that the bargaining agent has failed to make a reasonable
effort to enter into a collective agreement in relation to the
bargaining unit.
R.S., c. L-1, s. 138; 1972, c. 18, s. 1.
Application where fraud
40. (1) Where a trade union has been certified as the bargaining agent
for a bargaining unit,
(a) any employee in the bargaining unit,
(b) the employer of the employees in the bargaining unit, or
(c) any trade union that appeared before the Board in the certification
proceeding,
that alleges that the certification was obtained by the fraud of the
trade union so certified, may apply to the Board, at any time, for
revocation of the certification.
Revocation of certification for fraud
(2) On receipt of an application under subsection (1) in respect of a
trade union certification as the bargaining agent for a bargaining unit,
the Board shall, by order, revoke the certification of the trade union
as the bargaining agent for the bargaining unit if the Board is
satisfied that the evidence in support of the application
(a) was not and could not, by the exercise of reasonable diligence, have
been presented to it in the certification proceeding; and
(b) is such that the Board would have refused to certify the trade union
as the bargaining agent for the bargaining unit if the evidence had been
presented to it in the certification proceeding.
R.S., c. L-1, ss. 139, 140; 1972, c. 18, s. 1.
Application for revocation of certification of a council of trade unions
41. (1) Where a council of trade unions has been certified as the
bargaining agent for a bargaining unit, in addition to any circumstances
in which an application for revocation of the certification of the
council of trade unions may be made pursuant to section 38 or subsection
40(1), any employee in the bargaining unit, the employer of the
employees in the bargaining unit or a trade union that forms part of the
council of trade unions may apply to the Board for revocation of the
certification on the ground that the council of trade unions no longer
meets the requirements for certification of a council of trade unions.
Revocation of certification of a council of trade unions
(2) Where an application for revocation of certification is made under
subsection (1), the Board may, by order, revoke the certification of
the council of trade unions if, in the opinion of the Board, the council
of trade unions no longer meets the requirements for certification of a
council of trade unions.
Time for application
(3) An application under subsection (1) may be made in respect of a
council of trade unions that has been certified as the bargaining agent
for a bargaining unit only during a period in which an application for
an order revoking the certification of that council of trade unions is
authorized to be made under section 38.
R.S., c. L-1, s. 141; 1972, c. 18, s. 1.
Effect of revocation or declaration
42. Where the Board makes an order under section 39, subsection 40(2) or
section 41 revoking the certification of a trade union or council of
trade unions, or declaring that a trade union is not entitled to
represent the employees in a bargaining unit,
(a) any collective agreement between the trade union or council of trade
unions and the employer of the employees in the bargaining unit that
applies to the bargaining unit ceases to have effect from the time the
order is made or from such later time as the Board considers
appropriate; and
(b) the employer shall not bargain collectively, or enter into a
collective agreement with the trade union or council of trade unions,
for a period of one year from the date of the order, unless the trade
union or council of trade unions is certified by the Board under this
Part during that period as the bargaining agent for a bargaining unit
comprised of employees of the employer.
R.S., c. L-1, s. 142; 1972, c. 18, s. 1; 1977-78, c. 27, s. 50.
Successor Rights and Obligations
Mergers, etc., of trade unions
43. (1) Where, by reason of a merger or amalgamation of trade unions or
a transfer of jurisdiction among trade unions, a trade union succeeds
another trade union that, at the time of the merger, amalgamation or
transfer of jurisdiction, is a bargaining agent, the successor shall be
deemed to have acquired the rights, privileges and duties of its
predecessor, whether under a collective agreement or otherwise.
Board may determine questions
(2) Where, on a merger or amalgamation of trade unions or a transfer of
jurisdiction among trade unions, any question arises concerning the
rights, privileges and duties of a trade union under this Part or under
a collective agreement in respect of a bargaining unit or an employee
therein, the Board, on application to it by a trade union affected by
the merger, amalgamation or transfer of jurisdiction, shall determine
what rights, privileges and duties have been acquired or are retained.
Inquiry and votes
(3) Before determining, pursuant to subsection (2), what rights,
privileges and duties of a trade union have been acquired or are
retained, the Board may make such inquiry or direct that such
representation votes be taken as it considers necessary.
R.S., c. L-1, s. 143; 1972, c. 18, s. 1.
Definitions
44. (1) In this section and sections 45 to 47.1,
"business" ®entreprise¯
"business" means any federal work, undertaking or business and any part
thereof;
"provincial business" ® entreprise provinciale ¯
"provincial business" means a work, undertaking or business, or any part
of a work, undertaking or business, the labour relations of which are
subject to the laws of a province;
"sell" ® vente ¯
"sell", in relation to a business, includes the transfer or other
disposition of the business and, for the purposes of this definition,
leasing a business is deemed to be selling it.
Sale of business
(2) Where an employer sells a business,
(a) a trade union that is the bargaining agent for the employees
employed in the business continues to be their bargaining agent;
(b) a trade union that made application for certification in respect of
any employees employed in the business before the date on which the
business is sold may, subject to this Part, be certified by the Board as
their bargaining agent;
(c) the person to whom the business is sold is bound by any collective
agreement that is, on the date on which the business is sold, applicable
to the employees employed in the business; and
(d) the person to whom the business is sold becomes a party to any
proceeding taken under this Part that is pending on the date on which
the business was sold and that affects the employees employed in the
business or their bargaining agent.
Change of activity or sale of a provincial business
(3) Where, as a result of a change of activity, a provincial business
becomes subject to this Part, or such a business is sold to an employer
who is subject to this Part,
(a) the trade union that, pursuant to the laws of the province, is the
bargaining agent for the employees employed in the provincial business
continues to be their bargaining agent for the purposes of this Part;
(b) a collective agreement that applied to employees employed in the
provincial business at the time of the change or sale continues to apply
to them and is binding on the employer or on the person to whom the
business is sold;
(c) any proceeding that at the time of the change or sale was before the
labour relations board or other person or authority that, under the laws
of the province, is competent to decide the matter, continues as a
proceeding under this Part, with such modifications as the circumstances
require and, where applicable, with the person to whom the provincial
business is sold as a party; and
(d) any grievance that at the time of the change or sale was before an
arbitrator or arbitration board continues to be processed under this
Part, with such modifications as the circumstances require and, where
applicable, with the person to whom the provincial business is sold as a
party.
R.S., 1985, c. L-2, s. 44; 1996, c. 18, s. 8; 1998, c. 26, s. 21.
Review of bargaining units
45. In the case of a sale or change of activity referred to in section
44, the Board may, on application by the employer or any trade union
affected, determine whether the employees affected constitute one or
more units appropriate for collective bargaining.
R.S., 1985, c. L-2, s. 45; 1998, c. 26, s. 22.
Board to determine questions
46. The Board shall determine any question that arises under section 44,
including a question as to whether or not a business has been sold or
there has been a change of activity of a business, or as to the identity
of the purchaser of a business.
R.S., 1985, c. L-2, s. 46; 1998, c. 26, s. 22.
Where portion of public service established as federal business
47. (1) Where the name of any portion of the public service of Canada
specified from time to time in Part I or II of Schedule I to the Public
Service Staff Relations Act is deleted and that portion of the public
service of Canada is established as or becomes a part of a corporation
or business to which this Part applies, or where a portion of the public
service of Canada included in a portion of the public service of Canada
so specified in Part I or II of Schedule I to that Act is severed from
the portion in which it was included and established as or becomes a
part of such a corporation or business,
(a) a collective agreement or arbitral award that applies to any
employees in that portion of the public service of Canada and that is in
force at the time the portion of the public service of Canada is
established as or becomes a part of such a corporation or business
continues in force, subject to subsections (3) to (7), until its term
expires; and
(b) the Public Service Staff Relations Act applies in all respects to
the interpretation and application of the collective agreement or
arbitral award.
Application for certification
(2) A trade union may apply to the Board for certification as the
bargaining agent for the employees affected by a collective agreement or
arbitral award referred to in subsection (1), but may so apply only
during a period in which an application for certification of a trade
union is authorized to be made under section 24.
Application for order
(3) Where the employees in a portion of the public service of Canada
that is established as or becomes a part of a corporation or business to
which this Part applies are bound by a collective agreement or arbitral
award, the corporation or business, as employer of the employees, or any
bargaining agent affected by the change in employment, may, during the
period beginning on the one hundred and twentieth day and ending on the
one hundred and fiftieth day after the date on which the portion of the
public service of Canada is established as or becomes a part of the
corporation or business, apply to the Board for an order determining the
matters referred to in subsection (4).
Determination of Board
(4) Where an application is made under subsection (3) by a corporation
or business or bargaining agent, the Board, by order, shall
(a) determine whether the employees of the corporation or business who
are bound by any collective agreement or arbitral award constitute one
or more units appropriate for collective bargaining;
(b) determine which trade union shall be the bargaining agent for the
employees in each such unit; and
(c) in respect of each collective agreement or arbitral award that
applies to employees of the corporation or business,
(i) determine whether the collective agreement or arbitral award shall
remain in force, and
(ii) if the collective agreement or arbitral award is to remain in
force, determine whether it shall remain in force until the expiration
of its term or expire on such earlier date as the Board may fix.
Application for leave to serve a notice to bargain collectively
(5) Where the Board determines, pursuant to paragraph (4)(c), that a
collective agreement or arbitral award shall remain in force, either
party to the collective agreement or arbitral award may, not later than
sixty days after the date the Board makes its determination, apply to
the Board for an order granting leave to serve on the other party a
notice to bargain collectively.
Application to bargain collectively
(6) Where no application for an order is made pursuant to subsection (3)
within the period specified in that subsection, the corporation or
business, as employer of the employees, or any bargaining agent bound by
a collective agreement or arbitral award that, by subsection (1), is
continued in force, may, during the period commencing on the one hundred
and fifty-first day and ending on the two hundred and tenth day after
the date the portion of the public service of Canada is established as
or becomes a part of the corporation or business, apply to the Board for
an order granting leave to serve on the other party a notice to bargain
collectively.
Effect of order
(7) Where the Board has made an order pursuant to paragraph (4)(c), this
Part applies to the interpretation and application of any collective
agreement or arbitral award affected thereby.
Arbitral award deemed part of collective agreement
(8) An arbitral award that is continued in force by virtue of subsection
(1) is deemed to be
(a) part of the collective agreement for the bargaining unit to which
the award relates, or
(b) where there is no collective agreement for the bargaining unit, a
collective agreement for the bargaining unit to which the award relates
for the purposes of section 49, and this Part, other than section 80,
applies in respect of the renewal or revision of the collective
agreement or entering into a new collective agreement.
R.S., 1985, c. L-2, s. 47; 1996, c. 18, s. 9.
Where notice to bargain collectively given prior to deletion
47.1 Where, before the deletion or severance referred to in subsection
47(1), notice to bargain collectively has been given in respect of a
collective agreement or arbitral award binding on employees of a
corporation or business who, immediately before the deletion or
severance, were part of the public service of Canada,
(a) the terms and conditions of employment contained in a collective
agreement or arbitral award that, by virtue of section 52 of the Public
Service Staff Relations Act, are continued in force immediately before
the date of the deletion or severance or that were last continued in
force before that date, in respect of those employees shall continue or
resume in force on and after that date and shall be observed by the
corporation or business, as employer, the bargaining agent for those
employees and those employees until the requirements of paragraphs
89(1)(a) to (d) have been met, unless the employer and the bargaining
agent agree otherwise;
(b) the Public Service Staff Relations Act applies in all respects to
the interpretation and application of any term or condition continued or
resumed by paragraph (a);
(c) on application by the corporation or business, as employer, or the
bargaining agent for those employees, made during the period beginning
on the one hundred and twentieth day and ending on the one hundred and
fiftieth day after the date of the deletion or severance, the Board
shall make an order determining
(i) whether the employees of the corporation or business who are
represented by the bargaining agent constitute one or more units
appropriate for collective bargaining, and
(ii) which trade union shall be the bargaining agent for the employees
in each such unit;
(d) where the Board makes the determinations under paragraph (c), the
corporation or business, as employer, or the bargaining agent may, by
notice, require the other to commence collective bargaining under this
Act for the purpose of entering into a collective agreement; and
(e) this Part, other than section 80, applies in respect of a notice
given under paragraph (d).
1996, c. 18, s. 9; 1998, c. 26, s. 23(F).
Order
47.2 The Governor in Council may, by order, exclude from the operation
of sections 47 and 47.1 any portion of the public service of Canada that
is deleted or severed as described in subsection 47(1) where the
Governor in Council, on the recommendation of the Minister after
consultation with the Treasury Board and the Minister responsible for
that portion of the public service of Canada, is of the opinion that it
is in the public interest to do so.
1996, c. 18, s. 9.
Successive Contracts for Services
Definition of "previous contractor"
47.3 (1) In this section, "previous contractor" means an employer who,
under the terms of a contract or other arrangement that is no longer in
force,
(a) provided pre-board security screening services to another employer,
or to a person acting on behalf of that other employer, in an industry
referred to in paragraph (e) of the definition "federal work,
undertaking or business" in section 2; or
(b) provided any other service that may be designated by regulation of
the Governor in Council, on the recommendation of the Minister, to
another employer or a person acting on behalf of that other employer in
any industry that may be designated by regulation of the Governor in
Council on the recommendation of the Minister.
Equal remuneration
than that which the employees of the previous contractor who provided
the same or substantially similar services were entitled to receive
under the terms of a collective agreement to which this Part applied.
1996, c. 18, s. 9; 1998, c. 26, s. 24.
DIVISION IV
COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS
Obligation to Bargain Collectively
Notice to bargain to enter into a collective agreement
48. Where the Board has certified a bargaining agent for a bargaining
unit and no collective agreement binding on the employees in the
bargaining unit is in force, the bargaining agent may, by notice,
require the employer of those employees, or the employer may, by notice,
require the bargaining agent to commence collective bargaining for the
purpose of entering into a collective agreement.
R.S., c. L-1, s. 146; 1972, c. 18, s. 1.
Notice to bargain to renew or revise a collective agreement or enter a
new collective agreement
49. (1) Either party to a collective agreement may, within the period of
four months immediately preceding the date of expiration of the term of
the collective agreement, or within the longer period that may be
provided for in the collective agreement, by notice, require the other
party to the collective agreement to commence collective bargaining for
the purpose of renewing or revising the collective agreement or entering
into a new collective agreement.
Idem
(2) Where a collective agreement provides that any provision of the
collective agreement may be revised during the term of the collective
agreement, a party entitled to do so by the collective agreement may, by
notice, require the other party to commence collective bargaining for
the purpose of revising the provision.
R.S., 1985, c. L-2, s. 49; 1998, c. 26, s. 25.
Duty to bargain and not to change terms and conditions
50. Where notice to bargain collectively has been given under this Part,
(a) the bargaining agent and the employer, without delay, but in any
case within twenty days after the notice was given unless the parties
otherwise agree, shall
(i) meet and commence, or cause authorized representatives on their
behalf to meet and commence, to bargain collectively in good faith, and
(ii) make every reasonable effort to enter into a collective agreement;
and
(b) the employer shall not alter the rates of pay or any other term or
condition of employment or any right or privilege of the employees in
the bargaining unit, or any right or privilege of the bargaining agent,
until the requirements of paragraphs 89(1)(a) to (d) have been met,
unless the bargaining agent consents to the alteration of such a term or
condition, or such a right or privilege.
R.S., c. L-1, s. 148; 1972, c. 18, s. 1; 1977-78, c. 27, s. 51.
Technological Change
Definition of "technological change"
51. (1) In this section and sections 52 to 55, "technological change"
means
(a) the introduction by an employer into their work, undertaking or
business of equipment or material of a different nature or kind than
that previously utilized by the employer in the operation of the work,
undertaking or business; and
(b) a change in the manner in which the employer carries on the work,
undertaking or business that is directly related to the introduction of
that equipment or material.
Application of sections 52, 54 and 55
(2) Sections 52, 54 and 55 do not apply, in respect of a technological
change, to an employer and a bargaining agent who are bound by a
collective agreement where
(a) the employer has given to the bargaining agent a notice in writing
of the technological change that is substantially in accordance with
subsection 52(2),
(i) prior to the day on which the employer and the bargaining agent
entered into the collective agreement, if the notice requiring the
parties to commence collective bargaining for the purpose of entering
into that collective agreement was given pursuant to section 48, or
(ii) not later than the last day on which notice requiring the parties
to commence collective bargaining for the purpose of entering into the
collective agreement could have been given pursuant to subsection 49(1),
if the notice was given under that subsection;
(b) the collective agreement contains provisions that specify procedures
by which any matters that relate to terms and conditions or security of
employment likely to be affected by a technological change may be
negotiated and finally settled during the term of the agreement; or
(c) the collective agreement contains provisions that
(i) are intended to assist employees affected by any technological
change to adjust to the effects of the technological change, and
(ii) specify that sections 52, 54 and 55 do not apply, during the term
of the collective agreement, to the employer and the bargaining agent.
R.S., 1985, c. L-2, s. 51; 1999, c. 31, s. 162(E).
Notice of technological change
52. (1) An employer who is bound by a collective agreement and who
proposes to effect a technological change that is likely to affect the
terms and conditions or security of employment of a significant number
of the employer's employees to whom the collective agreement applies
shall give notice of the technological change to the bargaining agent
bound by the collective agreement at least one hundred and twenty days
prior to the date on which the technological change is to be effected.
Contents of notice
(2) The notice referred to in subsection (1) shall be in writing and
shall state
(a) the nature of the technological change;
(b) the date on which the employer proposes to effect the technological
change;
(c) the approximate number and type of employees likely to be affected
by the technological change;
(d) the effect that the technological change is likely to have on the
terms and conditions or security of employment of the employees
affected; and
(e) such other information as is required by the regulations made
pursuant to subsection (4).
Details of proposed change
(3) An employer who has given notice under subsection (1) to a
bargaining agent shall, on request from the bargaining agent, provide
the bargaining agent with a statement in writing setting out
(a) a detailed description of the nature of the proposed technological
change;
(b) the names of the employees who will initially be likely to be
affected by the proposed technological change; and
(c) the rationale for the change.
Regulations of Governor in Council
(4) The Governor in Council, on the recommendation of the Board, may
make regulations
(a) specifying the number of employees or the method of determining the
number of employees that shall, in respect of any federal work,
undertaking or business, be deemed to be "significant" for the purposes
of subsections (1) and 54(2); and
(b) requiring any information in addition to the information required by
subsection (2) to be included in a notice of technological change.
R.S., 1985, c. L-2, s. 52; 1999, c. 31, s. 152(E).
Application for order respecting technological change
53. (1) Where a bargaining agent alleges that sections 52, 54 and 55
apply to an employer in respect of an alleged technological change and
that the employer has failed to comply with section 52, the bargaining
agent may, not later than thirty days after the bargaining agent became
aware, or in the opinion of the Board ought to have become aware, of the
failure of the employer to comply with section 52, apply to the Board
for an order determining the matters so alleged.
Order respecting technological change
(2) On receipt of an application for an order determining the matters
alleged under subsection (1) and after affording an opportunity for the
parties to make representations, the Board may, by order,
(a) determine that sections 52, 54 and 55 do not apply to the employer
in respect of the alleged technological change; or
(b) determine that sections 52, 54 and 55 apply to the employer in
respect of the alleged technological change and that the employer has
failed to comply with section 52 in respect of the technological change.
Idem
(3) The Board may, in any order made under paragraph (2)(b), or by order
made after consultation with the parties pending the making of any order
under subsection (2),
(a) direct the employer not to proceed with the technological change or
alleged technological change for such period, not in excess of one
hundred and twenty days, as the Board considers appropriate;
(b) require the reinstatement of any employee displaced by the employer
as a result of the technological change; and
(c) where an employee is reinstated pursuant to paragraph (b), require
the employer to reimburse the employee for any loss of pay suffered by
the employee as a result of their displacement.
Order deemed notice
(4) An order of the Board made under paragraph (2)(b) in respect of an
employer is deemed to be a notice of technological change given by the
employer pursuant to section 52, and the Board shall concurrently, by
order, grant leave to the bargaining agent to serve on the employer a
notice to commence collective bargaining for the purpose referred to in
subsection 54(1).
R.S., 1985, c. L-2, s. 53; 1998, c. 26, s. 26; 1999, c. 31, s. 162(E).
Application for order to serve notice to bargain
54. (1) Where a bargaining agent receives notice of a technological
change pursuant to section 52, the bargaining agent may, in order to
assist the employees affected by the change to adjust to the effects of
the change, apply to the Board, within thirty days after the date on
which it receives the notice, for an order granting leave to serve on
the employer a notice to commence collective bargaining for the purpose
of
(a) revising the existing provisions of the collective agreement by
which they are bound that relate to terms and conditions or security of
employment; or
(b) including new provisions in the collective agreement that relate to
terms and conditions or security of employment.
Order to serve notice to bargain
(2) Where the Board has received from a bargaining agent an application
for an order under subsection (1), and it is satisfied that the
technological change in respect of which the bargaining agent has
received notice given pursuant to section 52 is likely, substantially
and adversely, to affect the terms and conditions or security of
employment of a significant number of employees to whom the collective
agreement between the bargaining agent and the employer applies, the
Board may, by order, grant leave to the bargaining agent to serve on the
employer a notice to commence collective bargaining for the purpose
referred to in subsection (1).
R.S., c. L-1, s. 152; 1972, c. 18, s. 1.
Conditions precedent to technological change
55. Where a bargaining agent applies to the Board for an order under
subsection 54(1), the employer in respect of whom the application is
made shall not effect the technological change in respect of which the
application is made until
(a) the Board has made an order refusing to grant leave to the
bargaining agent to serve on the employer a notice to commence
collective bargaining; or
(b) the Board has made an order granting leave to the bargaining agent
to serve on the employer a notice to commence collective bargaining and
(i) an agreement has been reached as a result of collective bargaining,
or
(ii) the requirements of paragraphs 89(1)(a) to (d) have been met.
R.S., c. L-1, s. 153; 1972, c. 18, s. 1.
Content and Interpretation of Collective Agreements
Effect of collective agreement
56. A collective agreement entered into between a bargaining agent and
an employer in respect of a bargaining unit is, subject to and for the
purposes of this Part, binding on the bargaining agent, every employee
in the bargaining unit and the employer.
R.S., c. L-1, s. 154; 1972, c. 18, s. 1.
Provision for final settlement without stoppage of work
57. (1) Every collective agreement shall contain a provision for final
settlement without stoppage of work, by arbitration or otherwise, of all
differences between the parties to or employees bound by the collective
agreement, concerning its interpretation, application, administration or
alleged contravention.
Where arbitrator to be appointed
(2) Where any difference arises between parties to a collective
agreement that does not contain a provision for final settlement of the
difference as required by subsection (1), the difference shall,
notwithstanding any provision of the collective agreement, be submitted
by the parties for final settlement
(a) to an arbitrator selected by the parties; or
(b) where the parties are unable to agree on the selection of an
arbitrator and either party makes a written request to the Minister to
appoint an arbitrator, to an arbitrator appointed by the Minister after
such inquiry, if any, as the Minister considers necessary.
Idem
(3) Where any difference arises between parties to a collective
agreement that contains a provision for final settlement of the
difference by an arbitration board and either party fails to name its
nominee to the board in accordance with the collective agreement, the
difference shall, notwithstanding any provision in the collective
agreement, be submitted by the parties for final settlement to an
arbitrator in accordance with paragraphs (2)(a) and (b).
Request to Minister for appointment of arbitrator or arbitration board
chairperson
(4) Where a collective agreement provides for final settlement, without
stoppage of work, of differences described in subsection (1) by an
arbitrator or arbitration board and the parties or their nominees are
unable to agree on the selection of an arbitrator or arbitration board
chairperson, as the case may be, either party or its nominee may,
notwithstanding anything in the collective agreement, make a written
request to the Minister to appoint an arbitrator or arbitration board
chairperson, as the case may be.
Appointment by Minister
(5) On receipt of a written request under subsection (4), the Minister
shall, after such inquiry, if any, as the Minister considers necessary,
appoint an arbitrator or arbitration board chairperson, as the case may
be.
Effect of appointment by Minister
(6) Any person appointed or selected pursuant to subsection (2), (3) or
(5) as an arbitrator or arbitration board chairperson shall be deemed,
for all purposes of this Part, to have been appointed pursuant to the
collective agreement between the parties.
R.S., 1985, c. L-2, s. 57; 1998, c. 26, s. 59(E).
Decisions not to be reviewed by court
58. (1) Every order or decision of an arbitrator or arbitration board is
final and shall not be questioned or reviewed in any court.
No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any
court, whether by way of injunction, certiorari, prohibition, quo
warranto or otherwise, to question, review, prohibit or restrain an
arbitrator or arbitration board in any of their proceedings under this
Part.
Status
(3) For the purposes of the Federal Court Act, an arbitrator appointed
pursuant to a collective agreement or an arbitration board is not a
federal board, commission or other tribunal within the meaning of that
Act.
R.S., 1985, c. L-2, s. 58; 1999, c. 31, s. 153(E).
Copy to be filed with Minister
59. A copy of every order or decision of an arbitrator or arbitration
board shall be filed with the Minister by the arbitrator or arbitration
board chairperson and shall be available to the public in circumstances
prescribed by the Governor in Council.
R.S., 1985, c. L-2, s. 59; 1998, c. 26, s. 59(E).
Powers of arbitrator, etc.
60. (1) An arbitrator or arbitration board has
(a) the powers conferred on the Board by paragraphs 16(a), (b), (c) and
(f.1);
(a.1) the power to interpret, apply and give relief in accordance with a
statute relating to employment matters, whether or not there is conflict
between the statute and the collective agreement;
(a.2) the power to make the interim orders that the arbitrator or
arbitration board considers appropriate;
(a.3) the power to consider submissions provided in the form that the
arbitrator or the arbitration board considers appropriate or to which
the parties agree;
(a.4) the power to expedite proceedings and to prevent abuse of the
arbitration process by making the orders or giving the directions that
the arbitrator or arbitration board considers appropriate for those
purposes; and
(b) power to determine any question as to whether a matter referred to
the arbitrator or arbitration board is arbitrable.
Power to extend time
(1.1) The arbitrator or arbitration board may extend the time for taking
any step in the grievance process or arbitration procedure set out in a
collective agreement, even after the expiration of the time, if the
arbitrator or arbitration board is satisfied that there are reasonable
grounds for the extension and that the other party would not be unduly
prejudiced by the extension.
Power to mediate
(1.2) At any stage of a proceeding before an arbitrator or arbitration
board, the arbitrator or arbitration board may, if the parties agree,
assist the parties in resolving the difference at issue without
prejudice to the power of the arbitrator or arbitration board to
continue the arbitration with respect to the issues that have not been
resolved.
Idem
(2) Where an arbitrator or arbitration board determines that an employee
has been discharged or disciplined by an employer for cause and the
collective agreement does not contain a specific penalty for the
infraction that is the subject of the arbitration, the arbitrator or
arbitration board has power to substitute for the discharge or
discipline such other penalty as to the arbitrator or arbitration board
seems just and reasonable in the circumstances.
R.S., 1985, c. L-2, s. 60; 1998, c. 26, s. 27.
Procedure
61. An arbitrator or arbitration board shall determine their own
procedure, but shall give full opportunity to the parties to the
proceeding to present evidence and make submissions to the arbitrator or
arbitration board.
R.S., 1985, c. L-2, s. 61; 1999, c. 31, s. 154(E).
Decision of arbitration board
62. Where a difference described in subsection 57(1) is submitted to an
arbitration board, the decision of a majority of those comprising the
board is the decision of the board, but if a majority of those
comprising the board cannot agree on a decision, the decision of the
chairperson of the board is the decision of the board.
R.S., 1985, c. L-2, s. 62; 1998, c. 26, s. 59(E).
Arbitration costs, fees and expenses
63. Where a difference described in subsection 57(1) is submitted by the
parties to an arbitrator or arbitration board, the costs, fees and
expenses with respect to the arbitration proceedings shall, unless the
collective agreement otherwise provides or the parties otherwise agree,
be borne as follows:
(a) each party shall bear its own costs and shall pay the fees and
expenses of any member of the arbitration board who is nominated by it;
and
(b) the fees and expenses of an arbitrator or arbitration board
chairperson, whether the arbitrator or chairperson is selected by the
parties or their nominees or appointed by the Minister under this Part,
shall be borne equally by the parties.
R.S., 1985, c. L-2, s. 63; 1998, c. 26, s. 59(E).
Order or decision within sixty days
64. (1) Every order or decision of an arbitrator or arbitration board
shall be made or given within sixty days after, in the case of an
arbitrator, their appointment as arbitrator, and, in the case of an
arbitration board, the appointment of the arbitration board chairperson,
unless
(a) the collective agreement otherwise provides or the parties otherwise
agree; or
(b) owing to circumstances beyond the control of the arbitrator or
arbitration board, it is not practicable to make or give the order or
decision within those sixty days.
Days not included
(2) For the purposes of subsection (1), any day that is included in a
period for which the arbitration proceedings are suspended pursuant to
subsection 65(2) shall not be counted as one of the sixty days referred
to in subsection (1).
Late order or decision not invalid
(3) The failure of an arbitrator or arbitration board to make or give
any order or decision within the sixty days referred to in subsection
(1) does not affect the jurisdiction of the arbitrator or arbitration
board to continue with and complete the arbitration proceedings and any
order or decision made or given by the arbitrator or arbitration board
after the expiration of those sixty days is not for that reason invalid.
R.S., 1985, c. L-2, s. 64; 1998, c. 26, s. 59(E); 1999, c. 31, s.
162(E).
Questions may be referred to Board
65. (1) Where any question arises in connection with a matter that has
been referred to an arbitrator or arbitration board, relating to the
existence of a collective agreement or the identification of the parties
or employees bound by a collective agreement, the arbitrator or
arbitration board, the Minister or any alleged party may refer the
question to the Board for determination.
Arbitration proceeding not suspended
(2) The referral of any question to the Board pursuant to subsection (1)
shall not operate to suspend any proceeding before an arbitrator or
arbitration board unless the arbitrator or arbitration board decides
that the nature of the question warrants a suspension of the proceeding
or the Board directs the suspension of the proceeding.
R.S., 1985, c. L-2, s. 65; 1998, c. 26, s. 28.
Filing of orders and decisions in Federal Court
66. (1) Any person or organization affected by any order or decision of
an arbitrator or arbitration board may, after fourteen days from the
date on which the order or decision is made or given, or from the date
provided in it for compliance, whichever is the later date, file in the
Federal Court a copy of the order or decision, exclusive of the reasons
therefor.
Idem
(2) On filing an order or decision of an arbitrator or arbitration board
in the Federal Court under subsection (1), the order or decision shall
be registered in the Court and, when registered, has the same force and
effect, and all proceedings may be taken thereon, as if the order or
decision were a judgment obtained in the Court.
R.S., c. L-1, s. 159; 1972, c. 18, s. 1; 1977-78, c. 27, s. 57.
Term of collective agreement
67. (1) 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 date on which it
comes into force and shall not, except as provided by subsection 36(2)
or with the consent of the Board, be terminated by the parties thereto
within that term of one year.
Revision of collective agreement
(2) Nothing in this Part prohibits the parties to a collective agreement
from agreeing to a revision of any provision of the collective agreement
other than a provision relating to the term of the collective agreement.
Board may order alteration of termination date
(3) The Board may, on application made jointly by both parties to a
collective agreement, order that the termination date of the collective
agreement be altered for the purpose of establishing a common
termination date for two or more collective agreements binding a single
employer.
Provision for settlement of differences to remain in force
(4) Notwithstanding anything contained in a collective agreement, the
provision required to be contained therein by subsection 57(1) shall
remain in force after the termination of the collective agreement and
until the requirements of paragraphs 89(1)(a) to (d) have been met.
Power of arbitrator where agreement terminates
(5) Where a difference between the parties to a collective agreement
relating to a provision contained in the collective agreement arises
during the period from the date of its termination to the date the
requirements of paragraphs 89(1)(a) to (d) have been met,
(a) an arbitrator or arbitration board may hear and determine the
difference; and
(b) sections 57 to 66 apply to the hearing and determination.
Powers of arbitrator when conditions of paragraphs 89(1)(a) to (d) have
been met
(6) Where a disagreement concerning the dismissal or discipline of an
employee in the bargaining unit arises during the period that begins on
the date on which the requirements of paragraphs 89(1)(a) to (d) are met
and ends on the date on which a new or revised collective agreement is
entered into, the bargaining agent may submit the disagreement for final
settlement in accordance with the provisions for the settlement of
differences contained in the previous collective agreement. The relevant
provisions in the collective agreement and sections 57 to 66 apply, with
such modifications as the circumstances require, to the settlement of
the disagreement.
R.S., 1985, c. L-2, s. 67; 1998, c. 26, s. 29.
Collective agreement may contain certain provisions
68. Nothing in this Part prohibits the parties to a collective agreement
from including in the collective agreement a provision
(a) requiring, as a condition of employment, membership in a specified
trade union; or
(b) granting a preference of employment to members of a specified trade
union.
R.S., c. L-1, s. 161; 1972, c. 18, s. 1.
Definition of "referral"
69. (1) In this section, "referral" includes assignment, designation,
dispatching, scheduling and selection.
Operation of hiring halls
(2) Where, pursuant to a collective agreement, a trade union is engaged
in the referral of persons to employment, it shall establish rules for
the purpose of making such referrals and apply those rules fairly and
without discrimination.
Posting of rules
(3) Rules applied by a trade union pursuant to subsection (2) shall be
kept posted in a conspicuous place in every area of premises occupied by
the trade union in which persons seeking referral normally gather.
1977-78, c. 27, s. 58.
Compulsory Check-Off
Union dues to be deducted
70. (1) Where a trade union that is the bargaining agent for employees
in a bargaining unit so requests, there shall be included in the
collective agreement between the trade union and the employer of the
employees a provision requiring the employer to deduct from the wages of
each employee in the unit affected by the collective agreement, whether
or not the employee is a member of the union, the amount of the regular
union dues and to remit the amount to the trade union forthwith.
Religious objections
(2) Where the Board is satisfied that an employee, because of their
religious conviction or beliefs, objects to joining a trade union or to
paying regular union dues to a trade union, the Board may order that the
provision in a collective agreement requiring, as a condition of
employment, membership in a trade union or requiring the payment of
regular union dues to a trade union does not apply to that employee so
long as an amount equal to the amount of the regular union dues is paid
by the employee, either directly or by way of deduction from their
wages, to a registered charity mutually agreed on by the employee and
the trade union.
Designation by Board
(3) Where an employee and the trade union are unable to agree on a
registered charity for the purposes of subsection (2), the Board may
designate any such charity as the charity to which payment should be
made.
Definitions
(4) In this section,
"registered charity" ®organisme de bienfaisance enregistr‚¯
"registered charity" has the meaning assigned to that expression by the
Income Tax Act;
"regular union dues" ®cotisation syndicale normale¯
"regular union dues" means, in respect of
(a) an employee who is a member of a trade union, the dues uniformly and
regularly paid by a member of the union in accordance with the
constitution and by-laws of the union, and
(b) an employee who is not a member of a trade union, the dues referred
to in paragraph (a), other than any amount that is for payment of
pension, superannuation, sickness insurance or any other benefit
available only to members of the union.
R.S., 1985, c. L-2, s. 70; 1999, c. 31, ss. 162(E), 241(F), 246(F).
DIVISION V
CONCILIATION AND FIRST AGREEMENTS
Federal Mediation and Conciliation Service
Federal Mediation and Conciliation Service
70.1 (1) The Federal Mediation and Conciliation Service, the employees
of which are employees of the Department of Human Resources Development,
advises the Minister of Labour with respect to industrial relations
matters and is responsible for fostering harmonious relations between
trade unions and employers by assisting them in the negotiation of
collective agreements and their renewal and the management of the
relations resulting from the implementation of the agreements.
Head
(2) The head of the Federal Mediation and Conciliation Service reports
to the Minister in respect of responsibilities relating to the
resolution of disputes.
1998, c. 26, s. 30.
Conciliation Procedures
Notice of dispute
71. (1) Where a notice to commence collective bargaining has been given
under this Part, either party may inform the Minister, by sending a
notice of dispute, of their failure to enter into, renew or revise a
collective agreement where
(a) collective bargaining has not commenced within the time fixed by
this Part; or
(b) the parties have bargained collectively for the purpose of entering
into or revising a collective agreement but have been unable to reach
agreement.
Copy to other party
(2) The party who sends a notice of dispute under subsection (1) must
immediately send a copy of it to the other party.
R.S., 1985, c. L-2, s. 71; 1998, c. 26, s. 30.
Options of Minister
72. (1) The Minister shall, not later than fifteen days after receiving
a notice in writing under section 71,
(a) appoint a conciliation officer;
(b) appoint a conciliation commissioner;
(c) establish a conciliation board in accordance with section 82; or
(d) notify the parties, in writing, of the Minister's intention not to
appoint a conciliation officer or conciliation commissioner or establish
a conciliation board.
Idem
(2) Where the Minister has not received a notice under section 71 but
considers it advisable to take any action set out in paragraph (1)(a),
(b) or (c) for the purpose of assisting the parties in entering into or
revising a collective agreement, the Minister may take such action.
Limitation
(3) The Minister may only take one action referred to in this section
with respect to any particular dispute involving a bargaining unit.
R.S., 1985, c. L-2, s. 72; 1998, c. 26, s. 31; 1999, c. 31, s. 155(E).
Delivery of notice to conciliation officer
73. (1) Where a conciliation officer has been appointed under subsection
72(1), the Minister shall forthwith deliver to the officer a copy of the
notice given under section 71 in respect of the dispute.
Duties of conciliation officer
(2) Where a conciliation officer has been appointed under section 72,
the conciliation officer shall
(a) forthwith after the appointment, confer with the parties to the
dispute and endeavour to assist them in entering into or revising a
collective agreement; and
(b) within fourteen days after the date of the appointment or within the
longer period that may be agreed to by the parties or allowed by the
Minister, report to the Minister as to whether or not the officer has
succeeded in assisting the parties in entering into or revising a
collective agreement.
R.S., 1985, c. L-2, s. 73; 1998, c. 26, s. 32.
Delivery of notice
74. (1) Where a conciliation commissioner has been appointed or a
conciliation board has been established, the Minister must immediately
deliver to the conciliation commissioner or the members of the
conciliation board a copy of the notice of dispute sent under section 71
and may, until their report has been submitted, refer other questions to
them.
Duties of conciliation commissioner or conciliation board
(2) Where a conciliation commissioner has been appointed or a
conciliation board has been established under subsection 72(1), the
conciliation commissioner or conciliation board shall
(a) immediately endeavour to assist the parties to the dispute in
entering into or revising a collective agreement; and
(b) within fourteen days after the date of appointment or establishment,
or within the longer period that may be agreed to by the parties or
allowed by the Minister, report to the Minister as to the commissioner's
or board's success or failure in assisting the parties to the dispute
and as to their findings and recommendations.
Report of the Board
(3) The report of the majority of the members of a conciliation board is
the report of the conciliation board, except where each member of the
conciliation board makes a report, in which case the report made by the
person appointed by the Minister as a member and chairperson of the
conciliation board is the report of the conciliation board.
R.S., 1985, c. L-2, s. 74; 1998, c. 26, s. 33.
Time limits
75. (1) Except with the consent of the parties, the Minister may not
extend the time for a conciliation officer to report, or for a
conciliation commissioner or conciliation board to submit a report,
beyond sixty days after the date of appointment or establishment.
Deemed reporting
(2) The conciliation officer is deemed to have reported sixty days after
the date on which that officer was appointed or at the end of the
extended time limit to which the parties consent, unless she or he
actually reports earlier.
Deemed receipt of report
(3) The Minister is deemed to have received the report of the
conciliation commissioner or conciliation board sixty days after the
date on which the conciliation commissioner was appointed or the board
was established or at the end of the extended time limit to which the
parties consent, unless the Minister actually receives the report
earlier.
R.S., 1985, c. L-2, s. 75; 1998, c. 26, s. 33.
Reconsideration of report
76. After a conciliation commissioner or conciliation board has
submitted their report, the Minister may direct the conciliation
commissioner or conciliation board to reconsider the report and clarify
or amplify any part of it.
R.S., 1985, c. L-2, s. 76; 1998, c. 26, s. 33.
Release of report
77. After receiving the report of a conciliation commissioner or
conciliation board, the Minister
(a) immediately releases a copy of the report to the parties to the
dispute; and
(b) may make the report available to the public in a manner that the
Minister considers advisable.
R.S., 1985, c. L-2, s. 77; 1998, c. 26, s. 33.
Report binding by agreement
recommendations.
R.S., 1985, c. L-2, s. 78; 1998, c. 26, s. 33.
Agreement
79. (1) Despite any other provision of this Part, an employer and a
bargaining agent may agree in writing, as part of a collective agreement
or otherwise, to refer any matter respecting the renewal or revision of
a collective agreement or the entering into of a new collective
agreement to a person or body for final and binding determination.
Effect of agreement
(2) The agreement suspends the right to strike or lockout and
constitutes an undertaking to implement the determination.
R.S., 1985, c. L-2, s. 79; 1998, c. 26, s. 33.
Settlement of First Agreement
Minister may refer dispute to Board
80. (1) Where an employer or a bargaining agent is required, by notice
given under section 48, to commence collective bargaining for the
purpose of entering into the first collective agreement between the
parties with respect to the bargaining unit for which the bargaining
agent has been certified and the requirements of paragraphs 89(1)(a) to
(d) have otherwise been met, the Minister may, if the Minister considers
it necessary or advisable, at any time thereafter direct the Board to
inquire into the dispute and, if the Board considers it advisable, to
settle the terms and conditions of the first collective agreement
between the parties.
Board may settle terms and conditions
(2) The Board shall proceed as directed by the Minister under subsection
(1) and, if the Board settles the terms and conditions of a first
collective agreement referred to in that subsection, those terms and
conditions shall constitute the collective agreement between the parties
and shall be binding on them and on the employees in the bargaining
unit, except to the extent that such terms and conditions are
subsequently amended by the parties by agreement in writing.
Matters the Board may consider
(3) In settling the terms and conditions of a first collective agreement
under this section, the Board shall give the parties an opportunity to
present evidence and make representations and the Board may take into
account
(a) the extent to which the parties have, or have not, bargained in good
faith in an attempt to enter into the first collective agreement between
them;
(b) the terms and conditions of employment, if any, negotiated through
collective bargaining for employees performing the same or similar
functions in the same or similar circumstances as the employees in the
bargaining unit; and
(c) such other matters as the Board considers will assist it in arriving
at terms and conditions that are fair and reasonable in the
circumstances.
Duration of agreement
(4) Where the terms and conditions of a first collective agreement are
settled by the Board under this section, the agreement is effective for
a period of two years after the date on which the Board settles the
terms and conditions of the collective agreement.
R.S., 1985, c. L-2, s. 80; 1998, c. 26, s. 34.
Establishment of Conciliation Boards
Composition
81. (1) A conciliation board shall consist of three members appointed in
the manner specified in section 82.
Eligibility of members
(2) A person is not eligible to be a member of a conciliation board if
the person has a pecuniary interest that may be directly affected by any
matter referred to the board.
R.S., c. L-1, s. 172; 1972, c. 18, s. 1.
Nomination by parties
82. (1) Where the Minister has, pursuant to section 72, decided to
establish a conciliation board, the Minister shall immediately, by
notice in writing, require each of the parties to the dispute to
nominate, within seven days after receipt by the party of the notice,
one person to be a member of the conciliation board and, on receipt of
the nomination within those seven days, the Minister shall appoint the
nominee to be a member of the conciliation board.
Failure to nominate
(2) Where either party to whom a notice is given pursuant to subsection
(1) fails or neglects to nominate a person to be a member of the
conciliation board to be established by the Minister within seven days
after the receipt by that party of the notice, the Minister shall
appoint, as a member of the conciliation board, a person the Minister
considers to be qualified to be such a member, and the member so
appointed shall be deemed to have been appointed on the nomination of
that party.
Nomination of chairperson
(3) The members of a conciliation board appointed under subsection (1)
or (2) shall, within five days after the appointment of the second
member, nominate a third person, who is willing and ready to act, to be
a member and chairperson of the conciliation board, and the Minister
shall appoint that person to be a member and chairperson of the
conciliation board.
Failure to nominate chairperson
(4) Where the members of a conciliation board appointed under subsection
(1) or (2) fail or neglect to nominate a chairperson within five days
after the appointment of the second such member, the Minister shall
forthwith appoint, as the third member and chairperson of the
conciliation board, a person whom the Minister considers qualified to be
a member and chairperson of the conciliation board.
R.S., 1985, c. L-2, s. 82; 1998, c. 26, ss. 35(E), 59(E).
Notification to parties of establishment of board
83. When the members of a conciliation board have been appointed under
section 82 in respect of a dispute, the Minister shall forthwith give
notice to the parties of the names of the members of the board, and
thereupon it shall be conclusively presumed that the conciliation board
described in the notice has been established in accordance with this
Part as of the date the notice is given.
1972, c. 18, s. 1.
General
Powers of board
84. A conciliation commissioner or a conciliation board
(a) may determine their own procedure;
(b) has, in relation to any proceeding before them, the powers conferred
on the Board, in relation to any proceeding before the Board, by
paragraphs 16(a), (b), (c), (f) and (h); and
(c) may authorize any person to do anything described in paragraph 16(b)
or (f) that the conciliation commissioner or conciliation board may do
and to report to the conciliation commissioner or conciliation board
thereon.
R.S., 1985, c. L-2, s. 84; 1999, c. 31, s. 156.
Sittings
85. (1) The chairperson of a conciliation board shall
(a) after consultation with the other members of the board, fix the time
and place of sittings of the conciliation board;
(b) notify the parties to the dispute of the time and place so fixed;
and
(c) at the conclusion of the sittings of the conciliation board, send to
the Minister a detailed certified statement as to those sittings and as
to the members of the conciliation board and witnesses present at each
sitting.
Quorum
(2) The chairperson and one other member of a conciliation board
constitute a quorum but, in the absence of any member, the other members
shall not proceed unless the absent member has been given reasonable
notice of the sitting.
Substitute member
(3) Where a person ceases to be a member of a conciliation board before
the board has completed its work, another member shall be nominated and
appointed in their place in accordance with section 82.
R.S., 1985, c. L-2, s. 85; 1998, c. 26, s. 59(E); 1999, c. 31, s.
162(E).
Proceedings prohibited
86. No order shall be made, process entered or proceeding taken in any
court
(a) to question the appointment of, or refusal to appoint, a
conciliation officer or conciliation commissioner, or the establishment
of, or the refusal to establish, a conciliation board; or
(b) to review, prohibit or restrain any proceeding of a conciliation
officer, conciliation commissioner or conciliation board.
R.S., 1985, c. L-2, s. 86; 1998, c. 26, s. 36.
Report and testimony not evidence
87. No report of a conciliation commissioner or conciliation board, and
no testimony or record of proceedings before a conciliation commissioner
or conciliation board, are admissible in evidence in any court in
Canada, except in the case of a prosecution for perjury.
1972, c. 18, s. 1.
DIVISION V.1
OBLIGATIONS RELATING TO STRIKES AND LOCKOUTS
Definitions
87.1 The following definitions apply in this Division.
"employer" ® employeur ¯
"employer" includes an employers' organization.
"trade union" ® syndicat ¯
"trade union" includes a council of trade unions.
1998, c. 26, s. 37.
Strike notice
87.2 (1) Unless a lockout not prohibited by this Part has occurred, a
trade union must give notice to the employer, at least seventy-two hours
in advance, indicating the date on which a strike will occur, and must
provide a copy of the notice to the Minister.
Lockout notice
(2) Unless a strike not prohibited by this Part has occurred, an
employer must give notice to the trade union, at least seventy-two hours
in advance, indicating the date on which a lockout will occur, and must
provide a copy of the notice to the Minister.
New notice
(3) Unless the parties agree otherwise in writing, where no strike or
lockout occurs on the date indicated in a notice given pursuant to
subsection (1) or (2), a new notice of at least seventy-two hours must
be given by the trade union or the employer if they wish to initiate a
strike or lockout.
1998, c. 26, s. 37.
Secret ballot - strike vote
87.3 (1) Unless a lockout not prohibited by this Part has occurred, a
trade union may not declare or authorize a strike unless it has, within
the previous sixty days, or any longer period that may be agreed to in
writing by the trade union and the employer, held a secret ballot vote
among the employees in the unit and received the approval of the
majority of the employees who voted.
Secret ballot - lockout vote
(2) Unless a strike not prohibited by this Part has occurred, an
employers' organization may not declare or cause a lockout unless it
has, within the previous sixty days, or any longer period that may be
agreed to in writing by the trade union and the employers' organization,
held a secret ballot vote among the employers who are members of the
organization and received the approval of the majority of the employers
who voted.
Conduct of vote
(3) A vote held under subsection (1) or (2) must be conducted in such a
manner as to ensure that those employees or employers who are eligible
to vote are given a reasonable opportunity to participate in the vote
and to be informed of the results.
Application to have vote declared invalid
(4) An employee who is a member of a bargaining unit for which a strike
vote has been held pursuant to subsection (1) and who alleges that there
were irregularities in the conduct of the vote may, no later than ten
days after the announcement of the results of the vote, make an
application to the Board to have the vote declared invalid.
Application to have vote declared invalid
(5) An employer who is a member of an employers' organization that has
held a lockout vote pursuant to subsection (2) and who alleges that
there were irregularities in the conduct of the vote may, no later than
ten days after the announcement of the results of the vote, make an
application to the Board to have the vote declared invalid.
Summary procedure
(6) The Board may summarily dismiss an application made pursuant to
subsection (4) or (5) if it is satisfied that, even if the alleged
irregularities were proven, the outcome of the vote would not be
different.
Order that vote invalid
(7) Where the Board declares the vote invalid, it may order that a new
vote be held in accordance with the conditions it specifies in the
order.
1998, c. 26, s. 37.
Maintenance of activities
87.4 (1) During a strike or lockout not prohibited by this Part, the
employer, the trade union and the employees in the bargaining unit must
continue the supply of services, operation of facilities or production
of goods to the extent necessary to prevent an immediate and serious
danger to the safety or health of the public.
Notice
(2) An employer or a trade union may, no later than fifteen days after
notice to bargain collectively has been given, give notice to the other
party specifying the supply of services, operation of facilities or
production of goods that, in its opinion, must be continued in the event
of a strike or a lockout in order to comply with subsection (1) and the
approximate number of employees in the bargaining unit that, in its
opinion, would be required for that purpose.
Agreement
(3) Where, after the notice referred to in subsection (2) has been
given, the trade union and the employer enter into an agreement with
respect to compliance with subsection (1), either party may file a copy
of the agreement with the Board. When the agreement is filed, it has the
same effect as an order of the Board.
Where no agreement entered into
(4) Where, after the notice referred to in subsection (2) has been
given, the trade union and the employer do not enter into an agreement,
the Board shall, on application made by either party no later than
fifteen days after notice of dispute has been given, determine any
question with respect to the application of subsection (1).
Referral
(5) At any time after notice of dispute has been given, the Minister may
refer to the Board any question with respect to the application of
subsection (1) or any question with respect to whether an agreement
entered into by the parties is sufficient to ensure that subsection (1)
is complied with.
Board order
(6) Where the Board, on application pursuant to subsection (4) or
referral pursuant to subsection (5), is of the opinion that a strike or
lockout could pose an immediate and serious danger to the safety or
health of the public, the Board, after providing the parties an
opportunity to agree, may, by order,
(a) designate the supply of those services, the operation of those
facilities and the production of those goods that it considers necessary
to continue in order to prevent an immediate and serious danger to the
safety or health of the public;
(b) specify the manner and extent to which the employer, the trade union
and the employees in the bargaining unit must continue that supply,
operation and production; and
(c) impose any measure that it considers appropriate for carrying out
the requirements of this section.
Review of order
(7) On application by the employer or the trade union, or on referral by
the Minister, during a strike or lockout not prohibited by this Part,
the Board may, where in the Board's opinion the circumstances warrant,
review and confirm, amend or cancel an agreement entered into, or a
determination or order made, under this section and make any orders that
it considers appropriate in the circumstances.
Binding settlement
(8) Where the Board is satisfied that the level of activity to be
continued in compliance with subsection (1) renders ineffective the
exercise of the right to strike or lockout, the Board may, on
application by the employer or the trade union, direct a binding method
of resolving the issues in dispute between the parties for the purpose
of ensuring settlement of a dispute.
1998, c. 26, s. 37.
Rights unaffected
87.5 (1) Where the Board has received an application pursuant to
subsection 87.4(4) or a question has been referred to the Board pursuant
to subsection 87.4(5), the employer must not alter the rates of pay or
any other term or condition of employment or any right or privilege of
the employees in the bargaining unit, or any right or privilege of the
bargaining agent, without the consent of the bargaining agent, until the
later of the date on which the Board has determined the application or
the question referred and the date on which the requirements of
paragraphs 89(1)(a) to (d) have been met.
Rights unaffected
(2) Unless the parties otherwise agree, the rates of pay or any other
term or condition of employment, and any rights, duties or privileges of
the employees, the employer or the trade union in effect before the
requirements of paragraphs 89(1)(a) to (d) were met, continue to apply
with respect to employees who are members of the bargaining unit and who
have been assigned to maintain services, facilities and production
pursuant to section 87.4.
Continuation of strike or lockout
(3) A referral made pursuant to subsection 87.4(5), during a strike or
lockout not prohibited by this Part, or an application or referral made
pursuant to subsection 87.4(7), does not suspend the strike or lockout.
1998, c. 26, s. 37.
Reinstatement of employees after strike or lockout
87.6 At the end of a strike or lockout not prohibited by this Part, the
employer must reinstate employees in the bargaining unit who were on
strike or locked out, in preference to any person who was not an
employee in the bargaining unit on the date on which notice to bargain
collectively was given and was hired or assigned after that date to
perform all or part of the duties of an employee in the unit on strike
or locked out.
1998, c. 26, s. 37.
Services to grain vessels
87.7 (1) During a strike or lockout not prohibited by this Part, an
employer in the long-shoring industry, or other industry included in
paragraph (a) of the definition "federal work, undertaking or business"
in section 2, its employees and their bargaining agent shall continue to
provide the services they normally provide to ensure the tie-up, let-go
and loading of grain vessels at licensed terminal and transfer
elevators, and the movement of the grain vessels in and out of a port.
Rights unaffected
89(1)(a) to (d) were met, continue to apply with respect to employees
who are members of the bargaining unit and who have been assigned to
provide services pursuant to subsection (1).
Board order
(3) On application by an affected employer or trade union, or on
referral by the Minister, the Board may determine any question with
respect to the application of subsection (1) and make any order it
considers appropriate to ensure compliance with that subsection.
1998, c. 26, s. 37.
DIVISION VI
PROHIBITIONS AND ENFORCEMENT
Strikes and Lockouts
Definitions
88. In this Division,
"employer" ®employeur¯
"employer" includes an employers' organization;
"trade union" ®syndicat¯
"trade union" includes a council of trade unions.
1972, c. 18, s. 1.
Strikes and lockouts prohibited during term of collective agreement
88.1 Strikes and lockouts are prohibited during the term of a collective
agreement except if
(a) a notice to bargain collectively has been given pursuant to a
provision of this Part, other than subsection 49(1); and
(b) the requirements of subsection 89(1) have been met.
1998, c. 26, s. 38.
No strike or lockout until certain requirements met
89. (1) No employer shall declare or cause a lockout and no trade union
shall declare or authorize a strike unless
(a) the employer or trade union has given notice to bargain collectively
under this Part;
(b) the employer and the trade union
(i) have failed to bargain collectively within the period specified in
paragraph 50(a), or
(ii) have bargained collectively in accordance with section 50 but have
failed to enter into or revise a collective agreement;
(c) the Minister has
(i) received a notice, given under section 71 by either party to the
dispute, informing the Minister of the failure of the parties to enter
into or revise a collective agreement, or
(ii) taken action under subsection 72(2);
(d) twenty-one days have elapsed after the date on which the Minister
(i) notified the parties of the intention not to appoint a conciliation
officer or conciliation commissioner, or to establish a conciliation
board under subsection 72(1),
(ii) notified the parties that a conciliation officer appointed under
subsection 72(1) has reported,
(iii) released a copy of the report to the parties to the dispute
pursuant to paragraph 77(a), or
(iv) is deemed to have been reported to pursuant to subsection 75(2) or
to have received the report pursuant to subsection 75(3);
(e) the Board has determined any application made pursuant to subsection
87.4(4) or any referral made pursuant to subsection 87.4(5); and
(f) sections 87.2 and 87.3 have been complied with.
No employee to strike until certain requirements met
(2) No employee shall participate in a strike unless
(a) the employee is a member of a bargaining unit in respect of which a
notice to bargain collectively has been given under this Part; and
(b) the requirements of subsection (1) have been met in respect of the
bargaining unit of which the employee is a member.
R.S., 1985, c. L-2, s. 89; 1998, c. 26, s. 39; 1999, c. 31, s. 157(E).
Right to strike or lockout limited during period between Parliaments
90. (1) Where a strike or lockout not prohibited by this Part occurs or
may occur during the time commencing on the date of a dissolution of
Parliament and ending on the date fixed for the return of the writs at
the next following general election and, in the opinion of the Governor
in Council, adversely affects or would adversely affect the national
interest, the Governor in Council may during that time make an order
deferring the strike or lockout during the period commencing on the day
the order is made and ending on the twenty-first day following the date
fixed for the return of the writs.
Minister's report
(2) Where the Governor in Council makes an order pursuant to subsection
(1) during the time mentioned in that subsection, the Minister shall, on
any of the first ten sitting days of the first session of Parliament
next following that time, lay before Parliament a report stating the
reasons for the making of the order.
1972, c. 18, s. 1; 1984, c. 39, s. 33.
Declarations Relating to Strikes and Lockouts
Employer may apply for declaration that strike unlawful
91. (1) Where an employer alleges that a trade union has declared or
authorized a strike, or that employees have participated, are
participating or are likely to participate in a strike, the effect of
which was, is or would be to involve the participation of an employee in
a strike in contravention of this Part, the employer may apply to the
Board for a declaration that the strike was, is or would be unlawful.
Declaration that strike unlawful and strike prohibited
(2) Where an employer applies to the Board under subsection (1) for a
declaration that a strike was, is or would be unlawful, the Board may,
after affording the trade union or employees referred to in subsection
(1) an opportunity to make representations on the application, make such
a declaration and, if the employer so requests, may make an order
(a) requiring the trade union to revoke the declaration or authorization
to strike and to give notice of such revocation forthwith to the
employees to whom it was directed;
(b) enjoining any employee from participating in the strike;
(c) requiring any employee who is participating in the strike to perform
the duties of their employment; and
(d) requiring any trade union, of which any employee with respect to
whom an order is made under paragraph (b) or (c) is a member, and any
officer or representative of that union, forthwith to give notice of any
order made under paragraph (b) or (c) to any employee to whom it
applies.
R.S., 1985, c. L-2, s. 91; 1998, c. 26, s. 40; 1999, c. 31, s. 162(E).
Declaration that lockout unlawful and prohibition of lockout
92. Where a trade union alleges that an employer has declared or caused
or is about to declare or cause a lockout of employees in contravention
of this Part, the trade union may apply to the Board for a declaration
that the lockout was, is or would be unlawful and the Board may, after
affording the employer an opportunity to make representations on the
application, make such a declaration and, if the trade union so
requests, may make an order
(a) enjoining the employer or any person acting on behalf of the
employer from declaring or causing the lockout;
(b) requiring the employer or any person acting on behalf of the
employer to discontinue the lockout and to permit any employee of the
employer who was affected by the lockout to return to the duties of
their employment; and
(c) requiring the employer forthwith to give notice of any order made
against the employer under paragraph (a) or (b) to any employee who was
affected, or would likely have been affected, by the lockout.
R.S., 1985, c. L-2, s. 92; 1998, c. 26, s. 41; 1999, c. 31, s. 162(E).
Terms and duration of order
93. (1) An order made under section 91 or 92
(a) shall be in such terms as the Board considers necessary and
sufficient to meet the circumstances of the case; and
(b) subject to subsection (2), shall have effect for such time as is
specified in the order.
Application for supplementary order
(2) Where the Board makes an order under section 91 or 92, the Board
may, from time to time on application by the employer or trade union
that requested the order or any employer, trade union, employee or other
person affected thereby, notice of which application has been given to
the parties named in the order, by supplementary order,
(a) continue the order, with or without modification, for such period as
is stated in the supplementary order; or
(b) revoke the order.
1977-78, c. 27, s. 64.
Unfair Practices
Employer interference in trade union
94. (1) No employer or person acting on behalf of an employer shall
(a) participate in or interfere with the formation or administration of
a trade union or the representation of employees by a trade union; or
(b) contribute financial or other support to a trade union.
Exception
(2) An employer is deemed not to contravene subsection (1) by reason
only that they
(a) in respect of a trade union that is the bargaining agent for a
bargaining unit comprised of or including employees of the employer,
(i) permit an employee or representative of the trade union to confer
with them during hours of work or to attend to the business of the trade
union during hours of work without any deduction from wages or any
deduction of time worked for the employer,
(ii) provide free transportation to representatives of the trade union
for purposes of collective bargaining, the administration of a
collective agreement and related matters, or
(iii) permit the trade union to use their premises for the purposes of
the trade union; or
(b) contribute financial support to any pension, health or other welfare
trust fund the sole purpose of which is to provide pension, health or
other welfare rights or benefits to employees.
Prohibition relating to replacement workers
(2.1) No employer or person acting on behalf of an employer shall use,
for the demonstrated purpose of undermining a trade union's
representational capacity rather than the pursuit of legitimate
bargaining objectives, the services of a person who was not an employee
in the bargaining unit on the date on which notice to bargain
collectively was given and was hired or assigned after that date to
perform all or part of the duties of an employee in the bargaining unit
on strike or locked out.
Prohibitions relating to employers
(3) No employer or person acting on behalf of an employer shall
(a) refuse to employ or to continue to employ or suspend, transfer, lay
off or otherwise discriminate against any person with respect to
employment, pay or any other term or condition of employment or
intimidate, threaten or otherwise discipline any person, because the
person
(i) is or proposes to become, or seeks to induce any other person to
become, a member, officer or representative of a trade union or
participates in the promotion, formation or administration of a trade
union,
(ii) has been expelled or suspended from membership in a trade union for
a reason other than a failure to pay the periodic dues, assessments and
initiation fees uniformly required to be paid by all members of the
trade union as a condition of acquiring or retaining membership in the
trade union,
(iii) has testified or otherwise participated or may testify or
otherwise participate in a proceeding under this Part,
(iv) has made or is about to make a disclosure that the person may be
required to make in a proceeding under this Part,
(v) has made an application or filed a complaint under this Part, or
(vi) has participated in a strike that is not prohibited by this Part or
exercised any right under this Part;
(b) impose any condition in a contract of employment that restrains, or
has the effect of restraining, an employee from exercising any right
conferred on them by this Part;
(c) suspend, discharge or impose any financial or other penalty on an
employee, or take any other disciplinary action against an employee, by
reason of their refusal to perform all or some of the duties and
responsibilities of another employee who is participating in a strike or
subject to a lockout that is not prohibited by this Part;
(d) deny to any employee any pension rights or benefits to which the
employee would be entitled but for
(i) the cessation of work by the employee as the result of a lockout or
strike that is not prohibited by this Part, or
(ii) the dismissal of the employee contrary to this Part;
(d.1) where the requirements of paragraphs 89(1)(a) to (d) have been
met, cancel or threaten to cancel a medical, dental, disability, life or
other insurance plan, whether administered by the employer or otherwise,
that benefits employees, so long as the bargaining agent tenders or
attempts to tender to the employer payments or premiums sufficient to
continue the plan;
(d.2) where the requirements of paragraphs 89(1)(a) to (d) have been met
and the bargaining agent has tendered or attempted to tender to the
employer payments or premiums sufficient to continue an insurance plan
referred to in paragraph (d.1), deny or threaten to deny to any employee
any benefits under the plan to which the employee was entitled before
those requirements were met;
(e) seek, by intimidation, threat of dismissal or any other kind of
threat, by the imposition of a financial or other penalty or by any
other means, to compel a person to refrain from becoming or to cease to
be a member, officer or representative of a trade union or to refrain
from
(i) testifying or otherwise participating in a proceeding under this
Part,
(ii) making a disclosure that the person may be required to make in a
proceeding under this Part, or
(iii) making an application or filing a complaint under this Part;
(f) suspend, discharge or impose any financial or other penalty on a
person employed by them, or take any other disciplinary action against
such a person, by reason of that person having refused to perform an act
that is prohibited by this Part; or
(g) bargain collectively for the purpose of entering into a collective
agreement or enter into a collective agreement with a trade union in
respect of a bargaining unit, if another trade union is the bargaining
agent for that bargaining unit.
R.S., 1985, c. L-2, s. 94; 1998, c. 26, s. 42; 1999, c. 31, ss. 158(E),
162(E).
Prohibitions relating to trade unions
95. No trade union or person acting on behalf of a trade union shall
(a) seek to compel an employer to bargain collectively with the trade
union if the trade union is not the bargaining agent for a bargaining
unit that includes employees of the employer;
(b) bargain collectively for the purpose of entering into a collective
agreement or enter into a collective agreement with an employer in
respect of a bargaining unit, if that trade union or person knows or, in
the opinion of the Board, ought to know that another trade union is the
bargaining agent for that bargaining unit;
(c) participate in or interfere with the formation or administration of
an employers' organization;
(d) except with the consent of the employer of an employee, attempt, at
an employee's place of employment during the working hours of the
employee, to persuade the employee to become, to refrain from becoming
or to cease to be a member of a trade union;
(e) require an employer to terminate the employment of an employee
because the employee has been expelled or suspended from membership in
the trade union for a reason other than a failure to pay the periodic
dues, assessments and initiation fees uniformly required to be paid by
all members of the trade union as a condition of acquiring or retaining
membership in the trade union;
(f) expel or suspend an employee from membership in the trade union or
deny membership in the trade union to an employee by applying to the
employee in a discriminatory manner the membership rules of the trade
union;
(g) take disciplinary action against or impose any form of penalty on an
employee by applying to that employee in a discriminatory manner the
standards of discipline of the trade union;
(h) expel or suspend an employee from membership in the trade union or
take disciplinary action against or impose any form of penalty on an
employee by reason of that employee having refused to perform an act
that is contrary to this Part; or
(i) discriminate against a person with respect to employment, a term or
condition of employment or membership in a trade union, or intimidate or
coerce a person or impose a financial or other penalty on a person,
because that person
(i) has testified or otherwise participated or may testify or otherwise
participate in a proceeding under this Part,
(ii) has made or is about to make a disclosure that the person may be
required to make in a proceeding under this Part, or
(iii) has made an application or filed a complaint under this Part.
1972, c. 18, s. 1.
General prohibition
96. No person shall seek by intimidation or coercion to compel a person
to become or refrain from becoming or to cease to be a member of a trade
union.
1972, c. 18, s. 1.
Complaints to the Board
97. (1) Subject to subsections (2) to (5), any person or organization
may make a complaint in writing to the Board that
person acting on behalf of a trade union or an employee has contravened
or failed to comply with subsection 24(4) or 34(6) or section 37, 47.3,
50, 69, 87.5 or 87.6, subsection 87.7(2) or section 94 or 95; or
(b) any person has failed to comply with section 96.
Time for making complaint
(2) Subject to subsections (4) and (5), a complaint pursuant to
subsection (1) must be made to the Board not later than ninety days
after the date on which the complainant knew, or in the opinion of the
Board ought to have known, of the action or circumstances giving rise to
the complaint.
(3) [Repealed, 1998, c. 26, s. 43]
Limitation on complaints against trade unions
(4) Subject to subsection (5), no complaint shall be made to the Board
under subsection (1) on the ground that a trade union or any person
acting on behalf of a trade union has failed to comply with paragraph
95(f) or (g) unless
(a) the complainant has presented a grievance or appeal in accordance
with any procedure that has been established by the trade union and to
which the complainant has been given ready access;
(b) the trade union
(i) has dealt with the grievance or appeal of the complainant in a
manner unsatisfactory to the complainant, or
(ii) has not, within six months after the date on which the complainant
first presented their grievance or appeal pursuant to paragraph (a),
dealt with the grievance or appeal; and
(c) the complaint is made to the Board not later than ninety days after
the first day on which the complainant could, in accordance with
paragraphs (a) and (b), make the complaint.
Exception
(5) The Board may, on application to it by a complainant, determine a
complaint in respect of an alleged failure by a trade union to comply
with paragraph 95(f) or (g) that has not been presented as a grievance
or appeal to the trade union, if the Board is satisfied that
(a) the action or circumstance giving rise to the complaint is such that
the complaint should be dealt with without delay; or
(b) the trade union has not given the complainant ready access to a
grievance or appeal procedure.
R.S., 1985, c. L-2, s. 97; 1991, c. 39, s. 2; 1998, c. 26, s. 43; 1999,
c. 31, s. 162(E).
Duty and power of the Board
98. (1) Subject to subsection (3), on receipt of a complaint made under
section 97, the Board may assist the parties to the complaint to settle
the complaint and shall, where it decides not to so assist the parties
or the complaint is not settled within a period considered by the Board
to be reasonable in the circumstances, determine the complaint.
(2) [Repealed, 1998, c. 26, s. 44]
Board may refuse to determine complaint involving collective agreement
(3) The Board may refuse to determine any complaint made pursuant to
section 97 in respect of a matter that, in the opinion of the Board,
could be referred by the complainant pursuant to a collective agreement
to an arbitrator or arbitration board.
Burden of proof
(4) Where a complaint is made in writing pursuant to section 97 in
respect of an alleged failure by an employer or any person acting on
behalf of an employer to comply with subsection 94(3), the written
complaint is itself evidence that such failure actually occurred and, if
any party to the complaint proceedings alleges that such failure did not
occur, the burden of proof thereof is on that party.
R.S., 1985, c. L-2, s. 98; 1998, c. 26, s. 44.
Board orders
99. (1) Where, under section 98, the Board determines that a party to a
complaint has contravened or failed to comply with subsection 24(4) or
34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section
87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by
order, require the party to comply with or cease contravening that
subsection or section and may
(a) in respect of a failure to comply with subsection 24(4), section
47.3, paragraph 50(b) or subsection 87.5(1) or (2) or 87.7(2), by order,
require an employer to pay to any employee compensation not exceeding
such sum as, in the opinion of the Board, is equivalent to the
remuneration that would, but for that failure, have been paid by the
employer to the employee;
(a.1) in respect of a contravention of subsection 34(6), by order,
require an employer representative to take and carry on on behalf of any
employer affected by the contravention, or to assist any such employer
to take and carry on, such action or proceeding as the Board considers
that the representative ought to have taken and carried on on the
employer's behalf or ought to have assisted the employer to take and
carry on;
(b) in respect of a contravention of section 37, require a trade union
to take and carry on on behalf of any employee affected by the
contravention or to assist any such employee to take and carry on such
action or proceeding as the Board considers that the union ought to have
taken and carried on on the employee's behalf or ought to have assisted
the employee to take and carry on;
(b.1) in respect of a contravention of the obligation to bargain
collectively in good faith mentioned in paragraph 50(a), by order,
require that an employer or a trade union include in or withdraw from a
bargaining position specific terms or direct a binding method of
resolving those terms, if the Board considers that this order is
necessary to remedy the contravention or counteract its effects;
(b.2) in respect of a failure to comply with section 87.6, by order,
require an employer to reinstate any employee who the employer has
failed to reinstate in accordance with that section and pay to the
employee compensation not exceeding the sum that, in the opinion of the
Board, is equivalent to the remuneration that would, but for that
failure, have been paid by the employer to that employee;
(b.3) in respect of a failure to comply with subsection 94(2.1), by
order, require the employer to stop using, for the duration of the
dispute, the services of any person who was not an employee in the
bargaining unit on the date on which notice to bargain collectively was
given and was hired or assigned after that date to perform all or part
of the duties of employees in the bargaining unit on strike or locked
out;
(c) in respect of a failure to comply with paragraph 94(3)(a), (c) or
(f), by order, require an employer to
(i) employ, continue to employ or permit to return to the duties of
their employment any employee or other 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 for a reason that is prohibited by
one of those paragraphs,
(ii) pay to any employee or other person affected by that failure
compensation not exceeding such sum as, in the opinion of the Board, is
equivalent to the remuneration that would, but for that failure, have
been paid by the employer to that employee or other person, and
(iii) rescind any disciplinary action taken in respect of and pay
compensation to any employee affected by that failure, not exceeding
such sum as, in the opinion of the Board, is equivalent to any financial
or other penalty imposed on the employee by the employer;
(c.1) in respect of a contravention of paragraph 94(3)(d.1) or (d.2), by
order, require the employer to reinstate any medical, dental,
disability, life or other insurance plan, or to pay to any employee any
benefits under such a plan to which the employee was entitled before the
requirements of paragraphs 89(1)(a) to (d) were met;
(d) in respect of a failure to comply with paragraph 94(3)(e), by order,
require an employer to rescind any action taken in respect of and pay
compensation to any employee affected by the failure, not exceeding such
sum as, in the opinion of the Board, is equivalent to any financial or
other penalty imposed on the employee by the employer;
(e) in respect of a failure to comply with paragraph 95(f) or (h), by
order, require a trade union to reinstate or admit an employee as a
member of the trade union; and
(f) in respect of a failure to comply with paragraph 95(g), (h) or (i),
by order, require a trade union to rescind any disciplinary action taken
in respect of and pay compensation to any employee affected by the
failure, not exceeding such sum as, in the opinion of the Board, is
equivalent to any financial or other penalty imposed on the employee by
the trade union.
Idem
(2) For the purpose of ensuring the fulfilment of the objectives of this
Part, the Board may, in respect of any contravention of or failure to
comply with any provision to which subsection (1) applies and in
addition to or in lieu of any other order that the Board is authorized
to make under that subsection, by order, require an employer or a trade
union to do or refrain from doing any thing that it is equitable to
require the employer or trade union to do or refrain from doing in order
to remedy or counteract any consequence of the contravention or failure
to comply that is adverse to the fulfilment of those objectives.
R.S., 1985, c. L-2, s. 99; 1991, c. 39, s. 3; 1998, c. 26, s. 45; 1999,
c. 31, s. 162(E).
Certification
99.1 The Board may certify a trade union despite a lack of evidence of
majority support if
(a) the employer has failed to comply with section 94; and
(b) the Board is of the opinion that, but for the unfair labour
practice, the trade union could reasonably have been expected to have
had the support of a majority of the employees in the unit.
1998, c. 26, s. 46.
Offences and Punishment
Lockout contrary to this Part
100. (1) Every employer who declares or causes a lockout contrary to
this Part is guilty of an offence and liable on summary conviction to a
fine not exceeding one thousand dollars for each day that the lockout
continues.
Idem
(2) Every person who, on behalf of an employer, declares or causes a
lockout contrary to this Part is guilty of an offence and liable on
summary conviction to a fine not exceeding ten thousand dollars.
Strike contrary to this Part
(3) Every trade union that declares or authorizes a strike contrary to
this Part is guilty of an offence and liable on summary conviction to a
fine not exceeding one thousand dollars for each day that the strike
continues.
Idem
(4) Every officer or representative of a trade union who declares or
authorizes a strike contrary to this Part is guilty of an offence and
liable on summary conviction to a fine not exceeding ten thousand
dollars.
1972, c. 18, s. 1.
General offences by persons
101. (1) Subject to section 100, every person other than an employer or
a trade union who contravenes or fails to comply with any provision of
this Part other than section 50, 94 or 95 is guilty of an offence and
liable on summary conviction to a fine not exceeding one thousand
dollars.
General offences by employers or trade unions
(2) Subject to section 100, every employer or trade union who or that
contravenes or fails to comply with any provision of this Part other
than section 50, 94 or 95 is guilty of an offence and liable on summary
conviction to a fine not exceeding ten thousand dollars.
1972, c. 18, s. 1.
Further offences
102. Every person who
(a) being required to attend to give evidence pursuant to paragraph
16(a), fails, without valid excuse, to attend accordingly,
(b) being commanded to produce, pursuant to paragraph 16(a), any
document or thing in their possession or under their control, fails to
produce the document or thing,
(c) refuses to be sworn or to affirm, as the case may be, after being
required to do so pursuant to paragraph 16(a), or
(d) refuses to answer any proper question put to them, pursuant to
paragraph 16(a), by the Board, a conciliation board, a conciliation
commissioner, an arbitrator or an arbitration board,
is guilty of an offence and liable on summary conviction to a fine not
exceeding four hundred dollars.
R.S., 1985, c. L-2, s. 102; 1999, c. 31, ss. 159(E), 162(E).
Prosecution of employers' organizations, trade unions and councils of
trade unions
103. (1) A prosecution for an offence under this Part may be brought
against and in the name of an employers' organization, a trade union or
a council of trade unions.
Idem
(2) For the purpose of a prosecution under subsection (1),
(a) an employers' organization, trade union or council of trade unions
shall be deemed to be a person; and
(b) any act or thing done or omitted to be done by an officer or agent
of an employers' organization, trade union or council of trade unions
within the scope of their authority to act on behalf of the employers'
organization, trade union or council of trade unions shall be deemed to
be an act or thing done or omitted to be done by the employers'
organization, trade union or council of trade unions.
R.S., 1985, c. L-2, s. 103; 1999, c. 31, s. 162(E).
Consent of Board before prosecution
104. Except with the consent in writing of the Board, no prosecution
shall be instituted in respect of an offence under this Part.
1972, c. 18, s. 1; 1977-78, c. 27, s. 69.
DIVISION VII
GENERAL
Promotion of Industrial Peace
Round-table meetings
104.1 The Minister shall meet from time to time with a group consisting
of the experts in industrial relations, and representatives of employers
and of trade unions, that the Minister considers advisable for the
purpose of discussing industrial relations issues.
1998, c. 26, s. 47.
Mediators
105. The Minister, on request or on the Minister's own initiative, may,
where the Minister deems it expedient, at any time appoint a mediator to
confer with the parties to a dispute or difference and endeavour to
assist them in settling the dispute or difference.
R.S., 1985, c. L-2, s. 105; 1998, c. 26, s. 48; 1999, c. 31, s. 160(E).
Inquiries regarding industrial matters
106. The Minister, on application or on the Minister's own initiative,
may, where the Minister deems it expedient, make any inquiries that the
Minister considers advisable regarding matters that may affect
industrial relations.
R.S., 1985, c. L-2, s. 106; 1999, c. 31, s. 160(E).
Additional powers
107. The Minister, where the Minister deems it expedient, may do such
things as to the Minister seem likely to maintain or secure industrial
peace and to promote conditions favourable to the settlement of
industrial disputes or differences and to those ends the Minister may
refer any question to the Board or direct the Board to do such things as
the Minister deems necessary.
R.S., 1985, c. L-2, s. 107; 1999, c. 31, s. 160(E).
Industrial Inquiry Commission
108. (1) Pursuant to section 106 or where, in any industry, a dispute or
difference between any employer and employees exists or is apprehended,
the Minister may appoint a commission to be designated as an Industrial
Inquiry Commission and to which the Minister shall refer the matter
under consideration for investigation and report to the Minister.
Idem
(2) Where a matter under consideration is referred, pursuant to
subsection (1), to an Industrial Inquiry Commission, the Minister shall
(a) furnish the Commission with a statement of the matter; and
(b) where the inquiry will involve any particular person or
organization, inform the person or organization of the appointment.
Composition of Commission
(3) An Industrial Inquiry Commission shall consist of one or more
members to be appointed by the Minister.
Functions of Commission
(4) Forthwith on its appointment, an Industrial Inquiry Commission
(a) shall inquire into the matters referred to it by the Minister and
endeavour to carry out its terms of reference; and
(b) where the Commission is inquiring into a dispute or difference
between any employer and employees and a settlement of the dispute or
difference is not effected during the inquiry, shall make its report and
recommendations to the Minister within fourteen days after its
appointment or within such longer period as the Minister may allow.
Distribution and publication of report
(5) On receipt of a report of an Industrial Inquiry Commission relating
to any dispute or difference between any employer and employees, the
Minister shall
(a) furnish a copy of the report to each employer and trade union
involved in the dispute or difference; and
(b) publish the report in such manner as the Minister considers
advisable.
Powers of Commission
(6) An Industrial Inquiry Commission has all of the powers of a person
appointed as a Commissioner under Part I of the Inquiries Act.
R.S., 1985, c. L-2, s. 108; 1999, c. 31, s. 161(E).
Vote on Employer's Offer
Minister may order vote to be held
108.1 (1) Where notice to bargain collectively has been given under this
Part, and the Minister is of the opinion that it is in the public
interest that the employees in the affected bargaining unit be given the
opportunity to accept or reject the offer of the employer last received
by the trade union in respect of all matters remaining in dispute
between the parties, the Minister may
(a) on such terms and conditions as the Minister considers appropriate,
direct that a vote of the employees in the bargaining unit to accept or
reject the offer be held as soon as possible; and
(b) designate the Board, or any other person or body, to be in charge of
conducting that vote.
No effect on time limits or periods
(2) A direction under subsection (1) that a vote be held, or the holding
of that vote, does not abridge or extend any time limit or period
provided for in this Part, including those stipulated in section 89 for
the acquisition of the right to lockout or strike.
Consequences of favourable vote
(3) Where the majority of the employees participating in the vote accept
the employer's last offer,
(a) the parties are bound by that offer and shall, without delay, enter
into a collective agreement that incorporates the terms of that offer;
and
(b) any lockout or strike not prohibited by this Part that is in
progress when the Board or other person or body in charge of conducting
the vote notifies the parties in writing of the employees' acceptance
shall cease forthwith.
Powers respecting vote
(4) The Board or other person or body in charge of conducting the vote
shall determine any question that arises under this section, including
any question relating to the conduct of the vote or the determination of
its result.
1993, c. 42, s. 2.
Access to Employees
Application for access order
109. (1) Where the Board receives from a trade union an application for
an order granting an authorized representative of the trade union access
to employees living in an isolated location on premises owned or
controlled by their employer or by any other person, the Board may make
an order granting the authorized representative of the trade union
designated in the order access to the employees on the premises of their
employer or such other person, as the case may be, that are designated
in the order if the Board determines that access to the employees
(a) would be impracticable unless permitted on premises owned or
controlled by their employer or by such other person; and
(b) is reasonably required for purposes relating to soliciting union
memberships, the negotiation or administration of a collective
agreement, the processing of a grievance or the provision of a union
service to employees.
Content of order
(2) The Board shall, in every order made under subsection (1), specify
the method of access to the employees, the times at which access is
permitted and the periods of its duration.
1972, c. 18, s. 1; 1977-78, c. 27, s. 69.1.
Communication with off-site workers
109.1 (1) On application by a trade union, the Board may, by order,
require an employer to give an authorized representative of the trade
union mentioned in the order, or the Board, or both, the names and
addresses of employees whose normal workplace is not on premises owned
or controlled by their employer and authorize the trade union to
communicate with those employees, by electronic means or otherwise, if
the Board is of the opinion that such communication is required for
purposes relating to soliciting trade union memberships, the negotiation
or administration of a collective agreement, the processing of a
grievance or the provision of a trade union service to employees.
Contents of order
(2) An order made under subsection (1)
(a) must specify the method of communication, the times of day and the
periods during which the communication is authorized, and the conditions
that must be met in order to ensure the protection of the privacy and
the safety of affected employees and to prevent the abusive use of
information; and
(b) may include a requirement that the employer, in accordance with any
terms and conditions that the Board establishes, transmit the
information that the union wishes to communicate to the employees by
means of any electronic communications system that the employer uses to
communicate with the employees.
Board transmission
(3) If the Board is of the opinion that the privacy and safety of
affected employees cannot otherwise be protected, the Board may
(a) provide each employee with the opportunity to refuse the giving of
their name and address to the representative of the trade union that the
Board authorizes and, if the employee does not so refuse, may transmit
that name and address to the authorized representative; or
(b) transmit the information that the union wishes to communicate to the
employees in the manner it considers appropriate.
Protection of names and addresses
(4) The names and addresses of employees provided under subsection (1)
shall not be used unless it is for a purpose consistent with this
section.
1998, c. 26, s. 50.
Access to Financial Statements
Financial statement of trade union and employers' organization
110. (1) Every trade union and every employers' organization shall,
forthwith on the request of any of its members, provide the member, free
of charge, with a copy of a financial statement of its affairs to the
end of the last fiscal year, certified to be a true copy by its
president and treasurer or by its president and any other officer
responsible for the handling and administration of its funds.
Idem
(2) Any financial statement provided under subsection (1) shall contain
information in sufficient detail to disclose accurately the financial
condition and operations of the trade union or employers' organization
for the fiscal year for which it was prepared.
Complaint to Board where failure to provide financial statement
(3) The Board, on the complaint of any member of a trade union or
employers' organization that it has failed to comply with subsection
(1), may make an order requiring the trade union or employers'
organization to file with the Board, within the time set out in the
order, a statement in such form and with such particulars as the Board
may determine.
Order of the Board
(4) The Board may make an order requiring a trade union or employers'
organization to provide a copy of a statement filed under subsection (3)
to such members of the trade union or employers' organization as the
Board in its discretion directs.
1977-78, c. 27, s. 70.
Regulations
Regulations
111. The Governor in Council may make regulations
(a) prescribing to or by whom and in what manner any notice, request or
report that may be given or made to or received by the Minister shall be
given, made or received;
(b) prescribing in what form and manner any notice or report that is
authorized or required to be given or sent by the Minister, a
conciliation commissioner, a conciliation board or an Industrial Inquiry
Commission shall be given or sent and what shall constitute sufficient
service of such notice or report on the person to whom it is given or
sent;
(c) designating, with respect to any notice or request authorized or
required to be given or sent by the Minister, the officer who may give
or send the notice or request on behalf of the Minister;
(d) prescribing the form and content of a notice to commence collective
bargaining;
(e) prescribing the form and content of a notice under section 71 and
prescribing any additional information that is to be furnished with such
a notice;
(f) prescribing the form and content of a notice under section 87.2 and
prescribing any additional information that is to be furnished with such
a notice;
(g) and (h) [Repealed, 1998, c. 26, s. 51]
(i) prescribing the form and content of any written request to the
Minister under subsection 57(2) or (4) and prescribing any additional
information that is to be furnished with such a request;
(j) prescribing the manner in which and the time within which a copy of
an order or decision referred to in section 59 shall be filed with the
Minister;
(k) prescribing the circumstances in which copies of orders and
decisions filed with the Minister pursuant to section 59 may be examined
by members of the public and the fees, if any, to be charged for
providing copies thereof; and
(l) prescribing the manner in which a report of a conciliation
commissioner or a conciliation board may be released by the Minister to
the parties to a dispute pursuant to paragraph 77(a).
R.S., 1985, c. L-2, s. 111; 1998, c. 26, s. 51.
Delegation
111.1 The Minister may delegate to the head of the Federal Mediation and
Conciliation Service his or her powers of appointment under this Act.
1998, c. 26, s. 52.
Miscellaneous
Documents as evidence
112. (1) Any document purporting to contain or to be a copy of any order
or decision of the Board and purporting to be signed by a member of the
Board is admissible in any court in evidence without proof of the
signature or official character of the person appearing to have signed
the document and without further proof thereof.
Certificate of Minister is evidence
(2) A certificate purporting to be signed by the Minister or an official
of the Federal Mediation and Conciliation Service stating that a report,
request or notice was or was not received or given by the Minister
pursuant to this Part and, if so received or given, stating the date on
which it was so received or given, is admissible in any court in
evidence without proof of the signature or official character of the
person appearing to have signed the certificate and without further
proof thereof.
R.S., 1985, c. L-2, s. 112; 1998, c. 26, s. 53.
Late report not invalid
113. The failure of a conciliation officer, conciliation commissioner or
conciliation board to report to the Minister within a period limited by
this Part does not invalidate the proceeding or terminate the authority
of the conciliation officer, conciliation commissioner or conciliation
board.
1972, c. 18, s. 1.
Defect in form or irregularity
114. No proceeding under this Part is invalid by reason only of a defect
in form or a technical irregularity.
1972, c. 18, s. 1.
Collective agreement to be filed
115. Each party to a collective agreement shall, forthwith on its
execution, file one copy of the collective agreement with the Minister.
1972, c. 18, s. 1.
Remuneration and expenses
116. The members of an Industrial Inquiry Commission, the members of a
conciliation board and every person not employed in the public service
of Canada who acts as a conciliation officer or conciliation
commissioner or who functions under this Part in any other capacity at
the request of the Minister, except as an arbitrator or arbitration
board chairperson, shall be paid such remuneration and expenses as may
be fixed by the Governor in Council by regulation or by order.
R.S., 1985, c. L-2, s. 116; 1998, c. 26, s. 59(E).
Persons deemed not to be employed in Public Service
117. Unless the Governor in Council otherwise orders in a case or class
of cases, a person appointed under this Part shall be deemed not to be
employed in the Public Service for the purposes of the Public Service
Superannuation Act.
1972, c. 18, s. 1.
Witness fees and expenses
118. A person who is summoned by the Board, a conciliation board, a
conciliation commissioner or an Industrial Inquiry Commission to attend
as a witness in any proceeding taken under this Part, and who so
attends, is entitled to be paid an allowance for expenses and a witness
fee, determined in accordance with the scale for the time being in force
with respect to witnesses in civil suits in the superior court of the
province in which the proceeding is being taken.
1972, c. 18, s. 1.
Member of Board, conciliation board, etc., not required to give evidence
119. No member of the Board or a conciliation board, conciliation
officer, conciliation commissioner, officer or employee employed by the
Board or in the public service of Canada or person appointed by the
Board or the Minister under this Part shall be required to give evidence
in any civil action, suit or other proceeding respecting information
obtained in the discharge of their duties under this Part.
R.S., 1985, c. L-2, s. 119; 1999, c. 31, s. 162(E).
No disclosure
119.1 For greater certainty, the following may not be disclosed without
the consent of the person who made them:
(a) notes or draft orders or decisions of the Board or any of its
members, or of an arbitrator or arbitration board chairperson appointed
by the Minister under this Part; and
(b) notes or draft reports of persons appointed by the Minister under
this Part to assist in resolving disputes or differences, or of persons
authorized or designated by the Board to assist in resolving complaints
or issues in dispute before the Board.
1998, c. 26, s. 54.
Arrangements with Provinces
Where uniform provincial legislation
120. (1) Where this Part and legislation enacted by the legislature of a
province are substantially uniform, the Minister may, on behalf of the
Government of Canada, with the approval of the Governor in Council,
enter into an agreement with the government of the province to provide
for the administration of the legislation of the province by officers
and employees employed in the public service of Canada.
Agreement for administration by Canada
(2) An agreement made pursuant to subsection (1) in respect of the
administration of any legislation of a province may provide
(a) for the administration by Canada of the legislation of the province
with respect to any particular work, undertaking or business;
(b) that the Minister may, on behalf of the province, exercise the
powers conferred or perform the duties imposed under the legislation of
the province;
(c) that the members of the Board, or officers and employees employed in
the public service of Canada, may exercise the powers conferred or
perform the duties imposed under the legislation of the province; and
(d) for payment by the government of the province to the Government of
Canada for expenses incurred by the Government of Canada in the
administration of the legislation of the province.
Where powers or duties conferred by provincial legislation
(3) Where an agreement has been entered into between the Government of
Canada and the government of a province in respect of any legislation of
the province, the Minister, the members of the Board and any officers or
employees employed in the public service of Canada may, if the
legislation so provides and the Governor in Council so orders, exercise
the powers and perform the duties specified in the legislation or
agreement.
1972, c. 18, s. 1.
Annual Reports
Annual report of Board
121. (1) The Board shall, on or before January 31 next following the end
of each fiscal year, submit to the Minister a report on the activities
of the Board during the immediately preceding fiscal year and the
Minister shall cause the report to be laid before Parliament within
fifteen days after the receipt thereof or, if Parliament is not then
sitting, on any of the first fifteen days next thereafter that either
House of Parliament is sitting.
(2) [Repealed, 1996, c. 11, s. 65]
R.S., 1985, c. L-2, s. 121; 1996, c. 11, s. 65.
Application of Provincial Laws
Provincial Crown corporations
121.1 The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Atomic Energy Control Act.
1996, c. 12, s. 1.
Exclusion from application
121.2 (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Atomic Energy
Control Act.
Regulations
(2) On the recommendation of the Minister, the Governor in Council may
make regulations respecting any matter relating to industrial relations,
including the prevention of a work stoppage or the continuation or
resumption of operations, in relation to employment that is subject to a
regulation made pursuant to subsection (1).
Incorporation of provincial law
(3) A regulation made under subsection (2) incorporating by reference,
in whole or in part, an Act of the legislature of a province or an
instrument made under such an Act may incorporate the Act or instrument
as amended to a certain date or from time to time.
Application of regulation
(4) A regulation made under subsection (2) may apply
(a) generally, with respect to all employment that is subject to a
regulation made pursuant to subsection (1); or
(b) to any class or classes of employment that are subject to a
regulation made pursuant to subsection (1).
Administration and enforcement
(5) A regulation made under subsection (2) incorporating an Act or
instrument shall, after consultation by the Minister with the
appropriate provincial minister, be administered and enforced by the
person or authority that is responsible for the administration and
enforcement of the Act or instrument.
Offence and penalty
(6) Subject to subsection (7), every person who contravenes a regulation
made under subsection (2) by contravening a provision of an Act of the
legislature of a province that, or an instrument made under such an Act
that, is incorporated by the regulation is guilty of an offence against
this Act and liable to the same punishment as is imposed by or under an
Act of that legislature for the contravention of that provision.
Defence
(7) No person may be convicted of an offence or subjected to a
punishment for a contravention described in subsection (6) unless it is
proved that, at the time of the alleged contravention,
(a) the incorporated Act or instrument was reasonably accessible to the
person;
(b) reasonable steps had been taken to ensure that the incorporated Act
or instrument was accessible to persons likely to be affected by the
regulation; or
(c) the incorporated Act or instrument had been published in the
official gazette of the province or as otherwise authorized by the
legislature of the province.
Procedure
(8) The prosecution of a contravention described in subsection (6) shall
be commenced by the attorney general of the province in which the
offence was committed.
1996, c. 12, s. 1.
Non-application of Statutory Instruments Act
121.3 Subsection 5(1) of the Statutory Instruments Act does not apply to
a regulation made pursuant to section 121.1 or 121.2.
1996, c. 12, s. 1.
Definition of "regulation"
121.4 (1) In this section, "regulation" means a regulation made under
subsection 121.2(2).
Bargaining agents
(2) A bargaining agent that represents a bargaining unit immediately
before the time when a regulation is made to which the employees in the
bargaining unit are subject continues, at that time, to represent the
bargaining unit for the purposes of the application of the regulation.
Collective agreements continued
(3) Every collective agreement that is in force immediately before the
time when a regulation is made that applies to employees who are subject
to the collective agreement continues in force, at that time, under the
regulation until its term expires.
Notice to bargain
(4) A notice to bargain given under this Part is deemed, at the time
when a regulation is made to which the employees who are affected by the
notice to bargain are subject, to have been given pursuant to the
regulation on the day on which it was given.
Acquired rights, etc.
(5) Any rights, privileges or duties acquired under this Part by the
bargaining unit, bargaining agent, employer or employees before the time
when a regulation is made are deemed to have been acquired pursuant to
the regulation on the day on which they were acquired.
Decisions
(6) A person or authority that, under an Act of the legislature of a
province, is competent to decide a matter that is contemplated by this
section in relation to a provision of an Act of the legislature of a
province or an instrument made under such an Act may, on application by
the employer or bargaining agent or, where the person or authority
considers it appropriate, an employee, decide any matter that is
contemplated by this section in relation to a regulation incorporating
that provision.
1996, c. 12, s. 1.
Regulations
121.5 Notwithstanding section 121.4, the Governor in Council may make
regulations respecting any matter referred to in that section in
relation to a regulation made under subsection 121.2(2).
1996, c. 12, s. 1.
PART II
OCCUPATIONAL SAFETY AND HEALTH
Interpretation
Definitions
122. (1) In this Part,
"Board" ® Conseil ¯
"Board" means the Canada Industrial Relations Board established by
section 9;
"collective agreement" ®convention collective¯
"collective agreement" has the same meaning as in section 166;
"danger" ®danger¯
"danger" means any hazard or condition that could reasonably be expected
to cause injury or illness to a person exposed thereto before the hazard
or condition can be corrected;
"employee" ®employ‚¯
"employee" means a person employed by an employer;
"employer" ®employeur¯
"employer" means a person who employs one or more employees and includes
an employers' organization and any person who acts on behalf of an
employer;
"hazardous substance" ®substance hasardeuse¯
"hazardous substance" includes a controlled product and a chemical,
biological or physical agent that, by reason of a property that the
agent possesses, is hazardous to the safety or health of a person
exposed to it;
"prescribe" ® rŠglement ¯
"prescribe" means prescribe by regulation of the Governor in Council;
"regional safety officer" ®agent r‚gional de s‚curit‚¯
"regional safety officer" means a person designated as a regional safety
officer pursuant to subsection 140(1);
"safety and health committee" ®comit‚ de s‚curit‚ et de sant‚¯
"safety and health committee" means a committee established pursuant to
section 135;
"safety and health representative" ®repr‚sentant en matiŠre de s‚curit‚
et de sant‚¯
"safety and health representative" means a person appointed as a safety
and health representative pursuant to section 136;
"safety officer" ®agent de s‚curit‚¯
"safety officer" means a person designated as a safety officer pursuant
to subsection 140(1) and includes a regional safety officer;
"work place" ®lieu de travail¯
"work place" means any place where an employee is engaged in work for
the employee's employer.
Idem
(2) In this Part, the expressions "controlled product", "hazard symbol",
"Ingredient Disclosure List", "label" and "material safety data sheet"
have the same meanings as in the Hazardous Products Act.
Idem
(3) Except where otherwise provided in this Part, all other words and
expressions have the same meanings as in Part I.
R.S., 1985, c. L-2, s. 122; R.S., 1985, c. 9 (1st Supp.), s. 1, c. 24
(3rd Supp.), s. 3; 1993, c. 42, s. 3; 1998, c. 26, s. 55.
Purpose of Part
Purpose of Part
122.1 The purpose of this Part is to prevent accidents and injury to
health arising out of, linked with or occurring in the course of
employment to which this Part applies.
R.S., 1985, c. 9 (1st Supp.), s. 1.
Application
Application of Part
123. (1) Notwithstanding any other Act of Parliament or any regulations
thereunder, this Part applies to and in respect of employment
(a) on or in connection with the operation of any federal work,
undertaking or business other than a work, undertaking or business of a
local or private nature in the Yukon Territory, the Northwest
Territories or Nunavut;
(b) by a corporation established to perform any function or duty on
behalf of the Government of Canada; and
(c) by a Canadian carrier, as defined in section 2 of the
Telecommunications Act, that is an agent of Her Majesty in right of a
province.
Idem
(2) Except as otherwise expressly provided in any other Act of
Parliament, this Part does not apply to or in respect of employment in a
portion of the public service of Canada specified from time to time in
Schedule I to the Public Service Staff Relations Act.
R.S., 1985, c. L-2, s. 123; R.S., 1985, c. 9 (1st Supp.), s. 2; 1993, c.
28, s. 78, c. 38, s. 89.
123.1 [Repealed, 1996, c. 12, s. 2]
Duties of Employers
General duty of employer
124. Every employer shall ensure that the safety and health at work of
every person employed by the employer is protected.
R.S., 1985, c. L-2, s. 124; R.S., 1985, c. 9 (1st Supp.), s. 4.
Specific duties of employer
125. Without restricting the generality of section 124, every employer
shall, in respect of every work place controlled by the employer,
(a) ensure that all permanent and temporary buildings and structures
meet the prescribed standards;
(b) install guards, guard-rails, barricades and fences in accordance
with prescribed standards;
(c) investigate, record and report in the manner and to the authorities
as prescribed all accidents, occupational diseases and other hazardous
occurrences known to the employer;
(d) post at a place accessible to every employee and at every place
directed by a safety officer,
(i) a copy of this Part,
(ii) a statement of the employer's general policy concerning the safety
and health at work of employees, and
(iii) such other printed material related to safety and health as may be
directed by a safety officer or as is prescribed;
(e) keep and maintain in prescribed form and manner prescribed safety
and health records;
(f) provide such first-aid facilities and health services as are
prescribed;
(g) provide prescribed sanitary and personal facilities;
(h) provide, in accordance with prescribed standards, potable water;
(i) ensure that the vehicles and mobile equipment used by the employees
in the course of their employment meet prescribed safety standards;
(j) provide every person granted access to the work place by the
employer with such safety materials, equipment, devices and clothing as
are prescribed;
(k) ensure that the use, operation and maintenance of
(i) every boiler and pressure vessel,
(ii) every escalator, elevator and other device for moving passengers or
freight,
(iii) all equipment for the generation, distribution or use of
electricity, and
(iv) all gas or oil burning equipment or other heat generating equipment
is in accordance with prescribed standards;
(l) and (m) [Repealed, R.S., 1985, c. 24 (3rd Supp.), s. 4]
(n) ensure that the levels of ventilation, lighting, temperature,
humidity, sound and vibration are in accordance with prescribed
standards;
(o) comply with such standards as are prescribed relating to fire safety
and emergency measures;
(p) ensure, in the manner prescribed, that employees have safe entry to,
exit from and occupancy of the work place;
(q) provide, in the prescribed manner, each employee with the
information, instruction, training and supervision necessary to ensure
the safety and health at work of that employee;
(r) maintain all installed guards, guard-rails, barricades and fences in
accordance with prescribed standards;
(s) ensure that each employee is made aware of every known or
foreseeable safety or health hazard in the area where that employee
works;
(t) ensure that the machinery, equipment and tools used by the employees
in the course of their employment meet prescribed safety standards and
are safe under all conditions of their intended use;
(u) adopt and implement prescribed safety codes and safety standards;
(v) ensure that every person granted access to the work place by the
employer is familiar with and uses in the prescribed circumstances and
manner all prescribed safety materials, equipment, devices and clothing;
and
(w) comply with every oral or written direction given to the employer by
a safety officer concerning the safety and health of employees.
R.S., 1985, c. L-2, s. 125; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 24
(3rd Supp.), s. 4; 1993, c. 42, s. 4(F).
Further specific duties of employer
125.1 Without restricting the generality of section 124 or limiting the
duties of an employer under section 125 but subject to such exceptions
as may be prescribed, every employer shall, in respect of every work
place controlled by the employer,
(a) ensure that concentrations of hazardous substances in the work place
are controlled in accordance with prescribed standards;
(b) ensure that all hazardous substances in the work place are stored
and handled in the manner prescribed;
(c) ensure that all hazardous substances in the work place, other than
controlled products, are identified in the manner prescribed;
(d) subject to the Hazardous Materials Information Review Act, ensure
that each controlled product in the work place or each container in the
work place in which a controlled product is contained has applied to it
a label that discloses prescribed information and has displayed on it,
in the manner prescribed, all applicable prescribed hazard symbols; and
(e) subject to the Hazardous Materials Information Review Act, make
available, in the manner prescribed, to each of his employees a material
safety data sheet, with respect to each controlled product in the work
place, that discloses the following information, namely,
(i) where the controlled product is a pure substance, the chemical
identity of the controlled product and, where the controlled product is
not a pure substance, the chemical identity of any ingredient thereof
that is a controlled product and the concentration of that ingredient,
(ii) where the controlled product contains an ingredient that is
included in the Ingredient Disclosure List and the ingredient is in a
concentration that is equal to or greater than the concentration
specified in the Ingredient Disclosure List for that ingredient, the
chemical identity and concentration of that ingredient,
(iii) the chemical identity of any ingredient thereof that the employer
believes on reasonable grounds may be harmful to an employee and the
concentration of that ingredient,
(iv) the chemical identity of any ingredient thereof the toxicological
properties of which are not known to the employer and the concentration
of that ingredient, and
(v) such other information with respect to the controlled product as may
be prescribed.
R.S., 1985, c. 24 (3rd Supp.), s. 5; 1993, c. 42, s. 5(F).
Employer to provide information in emergency
125.2 (1) An employer shall, in respect of any controlled product in a
work place controlled by him, provide, as soon as is practicable in the
circumstances, any information referred to in paragraph 125.1(e) that is
in the employer's possession to any physician or other prescribed
medical professional who requests that information for the purpose of
making a medical diagnosis of, or rendering medical treatment to, an
employee in an emergency.
Information to be kept confidential
(2) Any physician or other prescribed medical professional to whom
information is provided by an employer pursuant to subsection (1) shall
keep confidential any information specified by the employer as being
confidential, except for the purpose for which it is provided.
R.S., 1985, c. 24 (3rd Supp.), s. 5.
Coal mines
125.3 (1) Every employer of employees employed in a coal mine shall
(a) comply with every condition imposed on the employer pursuant to
paragraph 137.2(2)(b) or (3)(a);
(b) comply with every provision substituted for a provision of the
regulations, in respect of the employer, pursuant to paragraph
137.2(3)(b);
(c) permit inspections and tests to be carried out on behalf of the
employees, in any part of the mine and on any machinery or equipment
therein, in the prescribed manner and at intervals not greater than the
prescribed interval; and
(d) as a condition of carrying out any activity for which the submission
of plans and procedures is prescribed, submit to the Coal Mining Safety
Commission for approval, in the form and manner and at the time
prescribed, plans and procedures relating to that activity and carry out
the activity in conformity with plans and procedures as approved.
Methods, machinery and equipment
(2) No employer shall require or permit the use in a coal mine of any
mining method, machinery or equipment in respect of which no prescribed
safety standards are applicable unless the use thereof has been approved
pursuant to paragraph 137.2(2)(a).
Searches
(3) Every employer of employees employed in a coal mine shall, at
intervals not greater than the prescribed interval, for the purpose of
preventing alcohol, articles for use in smoking and drugs, other than
drugs exempted by the regulations, from being brought into the mine,
(a) require every person entering an underground portion of the mine who
is not employed there to submit to a personal search conducted in the
prescribed manner; and
(b) require a proportion, not less than the prescribed proportion, of
employees employed in the underground portions of the mine to submit to
personal searches conducted in the prescribed manner.
Definition of "coal mine"
(4) For the purposes of this section and section 137.2, "coal mine"
includes any work place above ground that is used in the operation of
the mine and is under the control of the employer of employees employed
in the mine.
R.S., 1985, c. 26 (4th Supp.), s. 1.
Duties of Employees
Safety and health matters
126. (1) While at work, every employee shall
(a) use such safety materials, equipment, devices and clothing as are
intended for the employee's protection and furnished to the employee by
the employer or as are prescribed;
(b) follow prescribed procedures with respect to the safety and health
of employees;
(c) take all reasonable and necessary precautions to ensure the safety
and health of the employee, the other employees and any person likely to
be affected by the employee's acts or omissions;
(d) comply with all instructions from the employer concerning the safety
and health of employees;
(e) cooperate with any person exercising a duty imposed by this Part or
any regulations made thereunder;
(f) cooperate with the safety and health committee established for the
work place where the employee is employed or, if there is no such
committee, with the safety and health representative, if any, appointed
for that work place;
(g) report to the employer any thing or circumstance in a work place
that is likely to be hazardous to the safety or health of the employee,
the other employees or other persons granted access to the work place by
the employer;
(h) report in the manner prescribed every accident or other occurrence
arising in the course of or in connection with the employee's work that
has caused injury to the employee or to any other person; and
(i) comply with every oral or written direction of a safety officer
concerning the safety and health of employees.
No relief of employer's duties
(2) Nothing in subsection (1) relieves an employer from any duty imposed
on the employer under this Part.
R.S., 1985, c. L-2, s. 126; R.S., 1985, c. 9 (1st Supp.), s. 4; 1993, c.
42, s. 6(F).
Employment Safety
Interference at accident scene prohibited
127. (1) Subject to subsection (2), where an employee is killed or
seriously injured in a work place, no person shall, unless authorized to
do so by a safety officer, remove or in any way interfere with or
disturb any wreckage, article or thing related to the incident except to
the extent necessary to
(a) save a life, prevent injury or relieve human suffering in the
vicinity;
(b) maintain an essential public service; or
(c) prevent unnecessary damage to or loss of property.
Exception
(2) No authorization referred to in subsection (1) is required where an
employee is killed or seriously injured by an accident or incident
involving
(a) an aircraft, a ship, rolling stock or a pipeline, where the accident
or incident is being investigated under the Aeronautics Act, the Canada
Shipping Act or the Canadian Transportation Accident Investigation and
Safety Board Act; or
(b) a motor vehicle on a public highway.
R.S., 1985, c. L-2, s. 127; R.S., 1985, c. 9 (1st Supp.), s. 4; 1989, c.
3, s. 45; 1996, c. 10, s. 235; 1998, c. 20, s. 29.
Refusal to work if danger
128. (1) Subject to this section, where an employee while at work has
reasonable cause to believe that
(a) the use or operation of a machine or thing constitutes a danger to
the employee or to another employee, or
(b) a condition exists in any place that constitutes a danger to the
employee,
the employee may refuse to use or operate the machine or thing or to
work in that place.
No refusal permitted in certain dangerous circumstances
(2) An employee may not pursuant to this section refuse to use or
operate a machine or thing or to work in a place where
(a) the refusal puts the life, health or safety of another person
directly in danger; or
(b) the danger referred to in subsection (1) is inherent in the
employee's work or is a normal condition of employment.
Employees on ships and aircraft
(3) Where an employee on a ship or an aircraft that is in operation has
reasonable cause to believe that
(a) the use or operation of a machine or thing on the ship or aircraft
constitutes a danger to the employee or to another employee, or
(b) a condition exists in a place on the ship or aircraft that
constitutes a danger to the employee,
the employee shall forthwith notify the person in charge of the ship or
aircraft of the circumstances of the danger and the person in charge
shall, as soon as practicable thereafter, having regard to the safe
operation of the ship or aircraft, decide whether or not the employee
may discontinue the use or operation of the machine or thing or to work
in that place and shall inform the employee accordingly.
No refusal permitted in certain cases
(4) An employee who, pursuant to subsection (3), is informed that he may
not discontinue the use or operation of a machine or thing or to work in
a place shall not, while the ship or aircraft on which the employee is
employed is in operation, refuse pursuant to this section to operate the
machine or thing or to work in that place.
When ship or aircraft in operation
(5) For the purposes of subsections (3) and (4),
(a) a ship is in operation from the time it casts off from a wharf in
any Canadian or foreign port until it is next secured alongside a wharf
in Canada; and
(b) an aircraft is in operation from the time it first moves under its
own power for the purpose of taking off from any Canadian or foreign
place of departure until it comes to rest at the end of its flight to
its first destination in Canada.
Report to employer
(6) Where an employee refuses to use or operate a machine or thing or to
work in a place pursuant to subsection (1), or is prevented from acting
in accordance with that subsection pursuant to subsection (4), the
employee shall forthwith report the circumstances of the matter to his
employer and to
(a) a member of the safety and health committee, if any, established for
the work place affected; or
(b) the safety and health representative, if any, appointed for the work
place affected.
Investigation of report
(7) An employer shall forthwith on receipt of a report under subsection
(6) investigate the report in the presence of the employee who made the
report and in the presence of
(a) at least one member of the safety and health committee, if any, to
which the report was made under subsection (6) who does not exercise
managerial functions;
(b) the safety and health representative, if any; or
(c) where no safety and health committee or safety and health
representative has been established or appointed for the work place
affected, at least one person selected by the employee.
Continued refusal to work
(8) Where an employer disputes a report made to the employer by an
employee pursuant to subsection (6) or takes steps to make the machine
or thing or the place in respect of which the report was made safe, and
the employee has reasonable cause to believe that
(a) the use or operation of the machine or thing continues to constitute
a danger to the employee or to another employee, or
(b) a condition continues to exist in the place that constitutes a
danger to the employee,
the employee may continue to refuse to use or operate the machine or
thing or to work in that place.
R.S., 1985, c. L-2, s. 128; R.S., 1985, c. 9 (1st Supp.), s. 4.
Investigation by safety officer
129. (1) Where an employee continues to refuse to use or operate a
machine or thing or to work in a place pursuant to subsection 128(8),
the employer and the employee shall each forthwith notify a safety
officer, and the safety officer shall forthwith, on receipt of either
notification, investigate or cause another safety officer to investigate
the matter in the presence of the employer and the employee or the
employee's representative.
Decision of safety officer
(2) A safety officer shall, on completion of an investigation made
pursuant to subsection (1), decide whether or not
(a) the use or operation of the machine or thing in respect of which the
investigation was made constitutes a danger to any employee, or
(b) a condition exists in the place in respect of which the
investigation was made that constitutes a danger to the employee
referred to in subsection (1),
and he shall forthwith notify the employer and the employee of his
decision.
Continued work required in certain cases
(3) Prior to the investigation and decision of a safety officer under
this section, the employer may require that the employee concerned
remain at a safe location near the place in respect of which the
investigation is being made or assign the employee reasonable alternate
work, and shall not assign any other employee to use or operate the
machine or thing or to work in that place unless that other employee has
been advised of the refusal of the employee concerned.
Decision of safety officer re danger
(4) Where a safety officer decides that the use or operation of a
machine or thing constitutes a danger to an employee or that a condition
exists in a place that constitutes a danger to an employee, the officer
shall give such direction under subsection 145(2) as the officer
considers appropriate, and an employee may continue to refuse to use or
operate the machine or thing or to work in that place until the
direction is complied with or until it is varied or rescinded under this
Part.
Reference to Board
(5) Where a safety officer decides that the use or operation of a
machine or thing does not constitute a danger to an employee or that a
condition does not exist in a place that constitutes a danger to an
employee, an employee is not entitled under section 128 or this section
to continue to refuse to use or operate the machine or thing or to work
in that place, but the employee may, by notice in writing given within
seven days of receiving notice of the decision of a safety officer,
require the safety officer to refer his decision to the Board, and
thereupon the safety officer shall refer the decision to the Board.
R.S., 1985, c. L-2, s. 129; R.S., 1985, c. 9 (1st Supp.), s. 4; 1993, c.
42, s. 7(F).
Inquiry
130. (1) Where a decision of a safety officer is referred to the Board
pursuant to subsection 129(5), the Board shall, without delay and in a
summary way, inquire into the circumstances of the decision and the
reasons therefor and may
(a) confirm the decision; or
(b) give any direction that it considers appropriate in respect of the
machine, thing or place in respect of which the decision was made that a
safety officer is required or entitled to give under subsection 145(2).
Posting notice of danger
(2) Where the Board gives a direction under subsection (1), it shall
cause to be affixed to or near the machine, thing or place in respect of
which the direction is given a notice in the form approved by the
Minister, and no person shall remove the notice unless authorized by a
safety officer or the Board.
Cessation of use
(3) Where the Board directs, pursuant to subsection (1), that a machine,
thing or place not be used until its directions are complied with, the
employer shall discontinue the use thereof, and no person shall use such
machine, thing or place until the directions are complied with, but
nothing in this subsection prevents the doing of anything necessary for
the proper compliance therewith.
R.S., 1985, c. L-2, s. 130; R.S., 1985, c. 9 (1st Supp.), s. 4.
Where collective agreement exists
131. The Minister may, on the joint application of the parties to a
collective agreement if the Minister is satisfied that the agreement
contains provisions that are at least as effective as those under
sections 128 to 130 in protecting the employees to whom the agreement
relates from danger to their safety or health, exclude the employees
from the application of those sections for the period during which the
agreement remains in force.
R.S., 1985, c. L-2, s. 131; R.S., 1985, c. 9 (1st Supp.), s. 4.
Compensation under other laws not precluded
132. The fact that an employer or employee has complied with or failed
to comply with any of the provisions of this Part shall not be construed
as affecting any right of an employee to compensation under any statute
relating to compensation for employment injury, or as affecting any
liability or obligation of any employer or employee under any such
statute.
R.S., 1985, c. L-2, s. 132; R.S., 1985, c. 9 (1st Supp.), s. 4.
Employees' Right to Complain
Complaint to Board
133. (1) Where an employee alleges that an employer has taken action
against the employee in contravention of paragraph 147(a) because the
employee has acted in accordance with section 128 or 129, the employee
may, subject to subsection (3), make a complaint in writing to the Board
of the alleged contravention.
Time for making complaint
(2) A complaint made pursuant to subsection (1) shall be made to the
Board not later than ninety days from the date on which the complainant
knew, or in the opinion of the Board ought to have known, of the action
or circumstances giving rise to the complaint.
Restriction
(3) An employee may not make a complaint under this section if the
employee has failed to comply with subsection 128(6) or 129(1) in
relation to the matter that is the subject-matter of the complaint.
Exclusion of arbitration
(4) Notwithstanding any law or agreement to the contrary, a complaint
referred to in subsection (1) may not be referred by an employee to
arbitration.
Duty and power of Board
(5) On receipt of a complaint made under subsection (1), the Board may
assist the parties to the complaint to settle the complaint and shall,
where it decides not to so assist the parties or the complaint is not
settled within a period considered by the Board to be reasonable in the
circumstances, hear and determine the complaint.
Burden of proof
(6) A complaint made pursuant to subsection (1) in respect of an alleged
contravention of paragraph 147(a) by an employer is itself evidence that
that contravention actually occurred and, if any party to the complaint
proceedings alleges that the contravention did not occur, the burden of
proof thereof is on that party.
R.S., 1985, c. L-2, s. 133; R.S., 1985, c. 9 (1st Supp.), s. 4.
Board orders
134. Where, under subsection 133(5), the Board determines that an
employer has contravened paragraph 147(a), the Board may, by order,
require the employer to cease contravening that provision and may, where
applicable, by order, require the employer to
(a) permit any employee who has been affected by the contravention to
return to the duties of the employee's employment;
(b) reinstate any former employee affected by the contravention;
(c) pay to any employee or former employee affected by the contravention
compensation not exceeding such sum as, in the opinion of the Board, is
equivalent to the remuneration that would, but for the contravention,
have been paid by the employer to that employee or former employee; and
(d) rescind any disciplinary action taken in respect of and pay
compensation to any employee affected by the contravention, not
exceeding such sum as, in the opinion of the Board, is equivalent to any
financial or other penalty imposed on the employee by the employer.
R.S., 1985, c. L-2, s. 134; R.S., 1985, c. 9 (1st Supp.), s. 4.
Safety and Health Committees and Representatives
Establishment of committee required
135. (1) Subject to this section, every employer shall, for each work
place controlled by the employer at which twenty or more employees are
normally employed, establish a safety and health committee consisting of
at least two persons one of whom is an employee or, where the committee
consists of more than two persons, at least half of whom are employees
who
(a) do not exercise managerial functions; and
(b) subject to any regulations made under subsection (11), have been
selected by the trade union, if any, representing the employees and by
any employees not represented by a trade union.
Exception
(2) An employer is not required to establish a safety and health
committee under subsection (1) for a work place that is on board a ship
in respect of employees whose base is the ship.
Idem
(3) Where the Minister is satisfied that the nature of work being done
by employees at a work place is relatively free from risks to safety and
health, the Minister may, by order, on such terms and conditions as are
specified therein, exempt the employer from the requirements of
subsection (1) in respect of that work place.
Idem
(4) Where, pursuant to a collective agreement or any other agreement
between an employer and his employees, a committee of persons has been
appointed in respect of a work place controlled by an employer and the
committee has, in the opinion of a safety officer, a responsibility for
matters relating to safety and health in the work place to such an
extent that a safety and health committee established under subsection
(1) for that work place would not be necessary,
(a) the safety officer may, by order, exempt the employer from the
requirements of subsection (1) in respect of that work place;
safety and health committee under this Part; and
(c) the committee of persons so appointed shall, for the purposes of
this Part, be deemed to be a safety and health committee established
under subsection (1) and all rights and obligations of employers and
employees under this Part and the provisions of this Part respecting a
safety and health committee apply, with such modifications as the
circumstances require, in respect of the committee of persons so
appointed.
Posting of names and work locations
(5) An employer shall post and keep posted, in a conspicuous place or
places where they are likely to come to the attention of the employer's
employees, the names and work locations of all the members of the safety
and health committee established for the work place controlled by the
employer.
Powers of committee
(6) A safety and health committee
(a) shall receive, consider and expeditiously dispose of complaints
relating to the safety and health of the employees represented by the
committee;
(b) shall maintain records pertaining to the disposition of complaints
relating to the safety and health of the employees represented by the
committee;
(c) shall cooperate with any occupational health service established to
serve the work place;
(d) may establish and promote safety and health programs for the
education of the employees represented by the committee;
(e) shall participate in all inquiries and investigations pertaining to
occupational safety and health including such consultations as may be
necessary with persons who are professionally or technically qualified
to advise the committee on those matters;
(f) may develop, establish and maintain programs, measures and
procedures for the protection or improvement of the safety and health of
employees;
(g) shall regularly monitor programs, measures and procedures related to
the safety and health of employees;
(h) shall ensure that adequate records are kept on work accidents,
injuries and health hazards and shall regularly monitor data relating to
those accidents, injuries and hazards;
(i) shall cooperate with safety officers;
(j) may request from an employer such information as the committee
considers necessary to identify existing or potential hazards with
respect to materials, processes or equipment in the work place; and
(k) shall have full access to all government and employer reports
relating to the safety and health of the employees represented by the
committee but shall not have access to the medical records of any person
except with the consent of that person.
Records
(7) A safety and health committee shall keep accurate records of all
matters that come before it pursuant to subsection (6) and shall keep
minutes of its meetings and shall make those minutes and records
available to a safety officer on the officer's request.
Meetings of committee
(8) A safety and health committee shall meet during regular working
hours at least once each month and, where meetings are urgently required
as a result of an emergency or other special circumstance, the committee
shall meet as required whether or not during regular working hours.
Payment of wages
(9) The members of a safety and health committee are entitled to such
time from their work as is necessary to attend meetings or to carry out
any of the other functions of a member of the committee, and any time
spent by a member while carrying out any of the functions of a member of
the committee shall, for the purpose of calculating wages owing to that
member, be deemed to have been spent at work.
Limitation of liability
(10) No member of a safety and health committee is personally liable for
anything done or omitted to be done by the member in good faith under
the purported authority of this section or any regulations made under
this section.
Regulations
(11) The Governor in Council may make regulations
(a) specifying the qualifications, terms of office and manner of
selection of members of a safety and health committee;
(b) specifying the time, place and frequency of regular meetings of a
committee;
(c) specifying the method of selecting officers of a committee and their
terms of office;
(d) establishing such procedures for the operation of a committee as the
Governor in Council considers advisable;
(e) requiring copies of minutes of committee meetings to be provided by
and to such persons as the Governor in Council may prescribe; and
(f) requiring a safety and health committee to submit an annual report
of its activities to a specified person in the prescribed form within
the prescribed time.
Regulation may be general or specific
(12) Any regulation made pursuant to subsection (11) may be made
applicable generally to all safety and health committees, or
particularly to one or more committees or classes thereof.
Committee may establish rules
(13) Subject to any regulations made pursuant to subsection (11), a
safety and health committee may establish its own rules of procedure in
respect of the terms of office, not exceeding two years, of its members,
the time, place and frequency of regular meetings of the committee, and
such procedures for its operation as it considers advisable.
R.S., 1985, c. L-2, s. 135; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 26
(4th Supp.), s. 2; 1993, c. 42, s. 8(F).
Appointment of safety and health representative
136. (1) Every employer shall, for each work place controlled by the
employer at which five or more employees are normally employed and for
which no safety and health committee has been established, appoint the
person selected pursuant to subsection (2) as the safety and health
representative for that work place.
Idem
(2) The employees at a work place referred to in subsection (1) who do
not exercise managerial functions shall, or where those employees are
represented by a trade union, the trade union shall, in consultation
with any employees who are not so represented and subject to any
regulations under subsection (7), select from among those employees a
person to be appointed as the safety and health representative of that
work place and shall advise the employer in writing of the name of the
person so selected.
Posting of name and work location
(3) An employer shall post and keep posted, in a conspicuous place or
places where they are likely to come to the attention of the employer's
employees, the name and work location of the safety and health
representative appointed for the work place controlled by the employer.
Powers of representative
(4) A safety and health representative
(a) shall receive, consider and expeditiously dispose of complaints
relating to the safety and health of the employees represented by the
representative;
(b) shall participate in all inquiries and investigations pertaining to
occupational safety and health, including such consultations as may be
necessary with persons who are professionally or technically qualified
to advise the representative on those matters;
(c) shall regularly monitor programs, measures and procedures related to
the safety and health of employees;
(d) shall ensure that adequate records are kept on work accidents,
injuries and health hazards and shall regularly monitor data relating to
those accidents, injuries and hazards;
(e) may request from an employer such information as the representative
considers necessary to identify existing or potential hazards with
respect to materials, processes or equipment in the work place; and
(f) shall have full access to all government and employer reports
relating to the safety and health of the employees represented by the
representative but shall not have access to the medical records of any
person except with the consent of that person.
Payment of wages
(5) A safety and health representative is entitled to such time from the
representative's work as is necessary to carry out the functions of a
representative and any time spent by the representative while carrying
out any of those functions shall, for the purpose of calculating wages
owing to the representative, be deemed to have been spent at work.
Limitation of liability
(6) No safety and health representative is personally liable for
anything done or omitted to be done by the representative in good faith
under the purported authority of this section.
Regulations
(7) The Governor in Council may make regulations specifying the
qualifications, term of office and manner of selection of a safety and
health representative.
R.S., 1985, c. L-2, s. 136; R.S., 1985, c. 9 (1st Supp.), s. 4.
Committees or representatives for certain work places
137. Notwithstanding sections 135 and 136, where an employer controls
more than one work place referred to in section 135 or 136 or the size
or nature of the operations of the employer or the work place precludes
the effective functioning of a single safety and health committee or
safety and health representative, as the case may be, for those work
places, the employer shall, subject to the approval of or in accordance
with the direction of a safety officer, establish or appoint in
accordance with section 135 or 136, as the case may require, a safety
and health committee or safety and health representative for such of
those work places as are specified in the approval or direction.
R.S., 1985, c. L-2, s. 137; R.S., 1985, c. 9 (1st Supp.), s. 4.
Coal Mining Safety Commission
Establishment of Commission
137.1 (1) There is hereby established a Coal Mining Safety Commission,
in this section referred to as the "Commission", consisting of not more
than five members to be appointed by the Minister to hold office during
good behaviour.
Members of Commission
(2) One member of the Commission shall be designated chairperson of the
Commission by the Minister and the others shall be equally
representative of non-supervisory employees employed in coal mines and
of the employers of those employees.
Selection and tenure
(3) The manner of selection of the members of the Commission, other than
the chairperson, and the term of office of the members of the Commission
shall be such as may be prescribed.
Quorum
(4) A quorum of the Commission consists of the chairperson, one member
representative of employees and one member representative of employers.
Safety officers ineligible
(5) No safety officer is eligible to be appointed to the Commission or
to be designated for the purposes of subsection 137.2(1) or (2).
Remuneration
(6) The members of the Commission shall be paid such remuneration as may
be fixed by the Governor in Council and, subject to the approval of the
Treasury Board, such reasonable travel and living expenses as are
incurred by them while carrying out their functions away from their
ordinary place of residence.
By-laws
(7) The Commission may, subject to the approval of the Minister, make
by-laws for the conduct of its activities.
Staff and other assistance
(8) The Minister may, at the request of the Commission, make available
to the Commission such staff and other assistance as are necessary for
the proper conduct of its activities.
Annual report
(9) The Commission shall, within sixty days following the end of each
calendar year, submit a report to the Minister of its activities during
the year.
Immunity
(10) No member of the Commission and no person designated by the
Commission pursuant to subsection 137.2(1) or (2) is personally liable
for anything done or omitted to be done in good faith under section
137.2.
R.S., 1985, c. 26 (4th Supp.), s. 3; 1998, c. 26, s. 59(E).
Approval of plans, procedures
137.2 (1) The Commission or a person designated by the Commission for
the purposes of this subsection may approve in writing, with or without
modification, plans or procedures submitted in accordance with paragraph
125.3(1)(d).
Approval of methods, machinery, equipment
(2) On the application of an employer, the Commission or a person
designated by the Commission for the purposes of this subsection may,
where, in the opinion of the Commission or that person, protection of
the safety and health of employees would not thereby be diminished,
(a) approve in writing the use by the employer in coal mines of mining
methods, machinery or equipment in respect of which no prescribed safety
standards are applicable; or
(b) approve in writing, notwithstanding anything in this Part, the use
by the employer in coal mines, for a specified time and subject to
specified conditions, of any mining method, machinery or equipment that
does not meet prescribed safety standards applicable in respect of it.
Exemptions and substitutions
(3) On the application of an employer, the Commission may, where in its
opinion protection of the safety and health of employees would not
thereby be diminished, by order,
(a) exempt the employer from compliance with any provision of the
regulations in the operation of coal mines controlled by the employer,
subject to any conditions contained in the order; or
(b) substitute for any provision of the regulations, so far as it
applies to coal mines controlled by the employer, another provision
having substantially the same purpose and effect.
Recommendations for amendments
(4) The Commission may make recommendations to the Minister for amending
or revoking any provision of the regulations applicable to coal mines or
for adding any provision thereto.
R.S., 1985, c. 26 (4th Supp.), s. 3.
Administration
Special committees
138. (1) The Minister may appoint committees of persons to assist or
advise the Minister on any matter that the Minister considers advisable
concerning occupational safety and health related to employment to which
this Part applies.
Inquiries
(2) The Minister may cause an inquiry to be made into and concerning
occupational safety and health in any employment to which this Part
applies and may appoint one or more persons to hold the inquiry.
Powers on an inquiry
(3) A person appointed pursuant to subsection (2) has all the powers of
a person appointed as a commissioner under Part I of the Inquiries Act.
Research
(4) The Minister may undertake research into the cause of and the means
of preventing employment injury and occupational illness and may, where
the Minister deems it appropriate, undertake such research in
cooperation with any department or agency of the Government of Canada or
with any or all provinces or with any organization undertaking similar
research.
Publication of information
(5) The Minister may publish the results of any research undertaken
pursuant to subsection (4) and compile, prepare and disseminate data or
information bearing on safety or health of employees obtained from that
research or otherwise.
Occupational safety and health programs
(6) The Minister may undertake programs to reduce or prevent employment
injury and occupational illness and may, where the Minister deems it
appropriate, undertake those programs in cooperation with any department
or agency of the Government of Canada or with any or all provinces or
any organization undertaking similar programs.
R.S., 1985, c. L-2, s. 138; R.S., 1985, c. 9 (1st Supp.), s. 4.
Advisory Council on Occupational Safety and Health
Establishment of Council
139. (1) There is hereby established a council to be called the Advisory
Council on Occupational Safety and Health composed of not more than
fourteen members appointed by the Governor in Council to hold office
during pleasure.
Membership
(2) The membership of the Advisory Council shall consist of persons
equally representative of management and labour and not more than two
additional persons who are knowledgeable or concerned about occupational
safety and health matters.
Chairperson and vice-chairperson
(3) The Governor in Council shall designate one of the members of the
Advisory Council to be chairperson and one to be vice-chairperson.
Remuneration and expenses
(4) The members of the Advisory Council shall be paid such remuneration
as may be fixed by the Governor in Council and are entitled, within such
limits as may be established by the Treasury Board, to be paid such
reasonable travel and living expenses as they incur in the course of
their functions under this Act while absent from their ordinary places
of residence.
By-laws
(5) The Advisory Council may, subject to the approval of the Minister,
make by-laws for the management of its internal affairs and generally
for the conduct of its activities.
Council to advise and make recommendations and reports
(6) The Advisory Council shall
(a) provide advice to the Minister on matters that have been brought to
its attention or referred to it concerning occupational safety and
health related to employment to which this Part applies;
(b) make recommendations to the Minister concerning the administration
of this Part; and
(c) annually report to the Minister on the activities of the Advisory
Council during the year for which the report is made.
R.S., 1985, c. L-2, s. 139; R.S., 1985, c. 9 (1st Supp.), s. 4; 1998, c.
26, ss. 59(E), 60(E).
Safety Officers and Safety Services
Safety officers
140. (1) The Minister may designate any person as a regional safety
officer or as a safety officer for the purposes of this Part.
Agreements respecting use of provincial employees as safety officers
(2) The Minister may, with the approval of the Governor in Council,
enter into an agreement with any province or any provincial body
specifying the terms and conditions under which a person employed by
that province or provincial body may act as a safety officer for the
purposes of this Part and, where such an agreement has been entered
into, a person so employed and referred to in the agreement shall be
deemed to be designated as a safety officer under subsection (1).
R.S., 1985, c. L-2, s. 140; R.S., 1985, c. 9 (1st Supp.), s. 4.
Powers of safety officer
141. (1) A safety officer may, in the performance of the officer's
duties and at any reasonable time, enter any work place controlled by an
employer and, in respect of any work place, may
(a) conduct examinations, tests, inquiries and inspections or direct the
employer to conduct them;
(b) take or remove for analysis, samples of any material or substance or
any biological, chemical or physical agent;
(c) be accompanied and assisted by such persons and bring with him such
equipment as the safety officer deems necessary to carry out his duties;
(d) take photographs and make sketches;
(e) direct the employer to ensure that any place or thing specified by
the safety officer not be disturbed for a reasonable period of time
pending an examination, test, inquiry or inspection in relation thereto;
(f) direct the employer to produce documents and information relating to
the safety and health of his employees or the safety of the work place
and to permit the safety officer to examine and make copies of or
extracts from those documents and that information; and
(g) direct the employer to make or provide statements, in such form and
manner as the safety officer may specify, respecting working conditions
and material and equipment that affect the safety or health of
employees.
Certificate of authority
(2) The Minister shall furnish every safety officer with a certificate
of the officer's authority and on entering any work place a safety
officer shall, if so required, produce the certificate to the person in
charge of that work place.
R.S., 1985, c. L-2, s. 141; R.S., 1985, c. 9 (1st Supp.), s. 4.
Duty to assist safety officer
142. The person in charge of any work place and every person employed
at, or in connection with, that work place shall give a safety officer
all reasonable assistance to enable the officer to carry out his duties
under this Part.
R.S., 1985, c. L-2, s. 142; R.S., 1985, c. 9 (1st Supp.), s. 4.
Obstruction and false statements
143. No person shall obstruct or hinder, or make a false or misleading
statement either orally or in writing to, a safety officer engaged in
carrying out his duties under this Part.
R.S., 1985, c. L-2, s. 143; R.S., 1985, c. 9 (1st Supp.), s. 4.
Evidence in civil suits precluded
144. (1) No safety officer or person who, as a member of a safety and
health committee or as a safety and health representative, has assisted
the safety officer in carrying out the officer's duties under this Part
shall be required to give testimony in any civil suit with regard to
information obtained by him in the discharge of his duties except with
the written permission of the Minister.
Information confidential
(2) Subject to subsection (2.1), no safety officer who is admitted to
any work place pursuant to the powers conferred on a safety officer by
section 141 or person accompanying a safety officer therein shall
disclose to any person any information obtained by him therein with
regard to any secret process or trade secret, except for the purposes of
this Part or as required by law.
Idem
(2.1) All information that, pursuant to the Hazardous Materials
Information Review Act, an employer is exempt from disclosing under
paragraph 125.1(d) or (e) or under paragraph 13(a) or (b) or 14(a) or
(b) of the Hazardous Products Act and that is obtained, in a work place
controlled by the employer, by a safety officer who is admitted to the
work place, pursuant to the powers conferred by section 141 on a safety
officer, or by a person accompanying a safety officer therein is
privileged and, notwithstanding the Access to Information Act or any
other Act or law, shall not be disclosed to any other person except for
the purposes of this Part.
Information not to be published
(3) No person shall, except for the purposes of this Part or for the
purposes of a prosecution under this Part, publish or disclose the
results of any analysis, examination, testing, inquiry or sampling made
or taken by or at the request of a safety officer pursuant to section
141.
Confidential communication
(4) No person to whom information obtained pursuant to section 141 is
communicated in confidence shall divulge the name of the informant to
any person except for the purposes of this Part or is competent or
compellable to divulge the name of the informant before any court or
other tribunal.
Safety officer not liable
(5) A safety officer is not personally liable for anything done or
omitted to be done by the officer in good faith under the authority or
purported authority of this Part.
R.S., 1985, c. L-2, s. 144; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 24
(3rd Supp.), s. 6.
Special Safety Measures
Direction to terminate contraventions
145. (1) Where a safety officer is of the opinion that any provision of
this Part is being contravened, the officer may direct the employer or
employee concerned to terminate the contravention within such time as
the officer may specify and the officer shall, if requested by the
employer or employee concerned, confirm the direction in writing if the
direction was given orally.
Dangerous situations
(2) Where a safety officer considers that the use or operation of a
machine or thing or a condition in any place constitutes a danger to an
employee while at work,
(a) the safety officer shall notify the employer of the danger and issue
directions in writing to the employer directing the employer immediately
or within such period of time as the officer specifies
(i) to take measures for guarding the source of danger, or
(ii) to protect any person from the danger; and
(b) the safety officer may, if the officer considers that the danger
cannot otherwise be guarded or protected against immediately, issue a
direction in writing to the employer directing that the place, machine
or thing in respect of which the direction is made shall not be used or
operated until the officer's directions are complied with, but nothing
in this paragraph prevents the doing of anything necessary for the
proper compliance with the direction.
Posting notice of danger
(3) Where a safety officer issues a direction under paragraph (2)(b),
the officer shall affix to or near the place, machine or thing in
respect of which the direction is made, a notice in such form and
containing such information as the Minister may specify, and no person
shall remove the notice unless authorized by a safety officer.
Cessation of use
(4) Where a safety officer issues a direction under paragraph (2)(b) in
respect of any place, machine or thing, the employer shall discontinue
the use or operation of the place, machine or thing and no person shall
use or operate it until the measures directed by the officer have been
taken.
Copies of directions and reports to be furnished
(5) Where a safety officer issues a direction in writing under
subsection (1) or (2) or makes a report in writing to an employer on any
matter under this Part, the employer shall forthwith
(a) cause a copy or copies of the direction or report to be posted in
such manner as the safety officer may specify; and
(b) give a copy of the direction or report to the safety and health
committee, if any, for the work place affected or the safety and health
representative, if any, for that work place.
Idem
(6) Where a safety officer issues a direction in writing under
subsection (1) or (2) or makes a report referred to in subsection (5) in
respect of an investigation made by the officer pursuant to a complaint,
the officer shall forthwith give a copy of the direction or report to
each person, if any, whose complaint led to the investigation.
R.S., 1985, c. L-2, s. 145; R.S., 1985, c. 9 (1st Supp.), s. 4; 1993, c.
42, s. 9(F).
Review of direction
146. (1) Any employer, employee or trade union that considers himself or
itself aggrieved by any direction issued by a safety officer under this
Part may, within fourteen days of the date of the direction, request
that the direction be reviewed by a regional safety officer for the
region in which the place, machine or thing in respect of which the
direction was issued is situated.
Request may be required to be in writing
(2) The regional safety officer may require that an oral request for a
review under subsection (1) be made as well in writing.
Inquiry
(3) The regional safety officer shall in a summary way inquire into the
circumstances of the direction to be reviewed and the need therefor and
may vary, rescind or confirm the direction and thereupon shall in
writing notify the employee, employer or trade union concerned of the
decision taken.
Direction not stayed
(4) A request for a review of a direction under this section shall not
operate as a stay of the direction.
Where subsection (1) does not apply
(5) Subsection (1) does not apply in respect of a direction of a safety
officer that is based on a decision of the officer that has been
referred to the Board pursuant to subsection 129(5).
R.S., 1985, c. L-2, s. 146; R.S., 1985, c. 9 (1st Supp.), s. 4.
General prohibition re employer
147. No employer shall
(a) dismiss, suspend, lay off or demote an employee or impose any
financial or other penalty on an employee or refuse to pay the employee
remuneration in respect of any period of time that the employee would,
but for the exercise of his rights under this Part, have worked or take
any disciplinary action against or threaten to take any such action
against an employee because that employee
(i) has testified or is about to testify in any proceeding taken or
inquiry held under this Part,
(ii) has provided information to a person engaged in the performance of
duties under this Part regarding the conditions of work affecting the
safety or health of that employee or any of his fellow employees, or
(iii) has acted in accordance with this Part or has sought the
enforcement of any of the provisions of this Part; or
(b) fail or neglect to provide
(i) a safety and health committee with any information requested by it
pursuant to paragraph 135(6)(j), or
(ii) a safety and health representative with any information requested
by the representative pursuant to paragraph 136(4)(e).
R.S., 1985, c. L-2, s. 147; R.S., 1985, c. 9 (1st Supp.), s. 4.
Offences and Punishment
General offence
148. (1) Subject to this section, every person who contravenes any
provision of this Part is guilty of an offence and liable on summary
conviction to a fine not exceeding fifteen thousand dollars.
Specific offences
(2) Every person who contravenes paragraph 125(w) or 126(1)(i) is guilty
of an offence and liable on summary conviction to a fine not exceeding
twenty-five thousand dollars.
Idem
(3) Every person who contravenes
(a) paragraph 125(d), (e) or (g) or 126(1)(e), (f) or (h), or
(b) subsection 135(5), 136(3) or 145(5)
is guilty of an offence and liable on summary conviction to a fine not
exceeding five thousand dollars.
Idem
(3.1) Every person who contravenes paragraph 125.1(c), (d) or (e) or
subsection 125.2(1) or (2) or 144(2.1) is guilty of an offence and
liable
(a) on summary conviction, to a fine not exceeding one hundred thousand
dollars or to imprisonment for a term not exceeding six months or to
both; or
(b) on conviction on indictment, to a fine not exceeding one million
dollars or to imprisonment for a term not exceeding two years or to
both.
Where death or injury
(4) Every person who contravenes any provision of this Part the direct
result of which is the death of or serious injury to an employee is
guilty of an offence and liable on summary conviction to a fine not
exceeding one hundred thousand dollars.
Risk of death or injury
(5) Every person who wilfully contravenes any provision of this Part
knowing that the contravention is likely to cause the death of or
serious injury to an employee is guilty of an offence and liable
(a) on summary conviction, to a fine not exceeding twenty-five thousand
dollars; or
(b) on conviction on indictment, to imprisonment for a term not
exceeding two years.
Defence
(6) On a prosecution of a person for a contravention of subsection (4)
or
(a) paragraph 125(q), (r), (s), (t), (u), (v) or (w),
(b) paragraph 126(1)(c), (d), (e), (f), (g), (h) or (i),
(c) paragraph 147(b),
(d) subsection 125.2(1), 125.2(2), 127(1), 135(1), 136(1), 144(2),
144(2.1), 144(3), 144(4) or 155(1), or
(e) section 124, 125.1, 142 or 143,
it is a defence for the person to prove that the person exercised due
care and diligence to avoid the contravention.
Standards, etc. deemed to be prescribed
(7) For the purposes of this section, where regulations are made under
subsection 157(1.1) in relation to safety or health matters referred to
in a paragraph of sections 125 to 126 by which a standard or other thing
is to be prescribed, that standard or other thing shall be deemed to be
prescribed within the meaning of that paragraph.
R.S., 1985, c. L-2, s. 148; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 24
(3rd Supp.), s. 7, c. 26 (4th Supp.), s. 4; 1993, c. 42, s. 10.
Minister's consent required
149. (1) No proceeding in respect of an offence under this Part shall be
instituted except with the consent of the Minister.
Officer, etc., of corporation
(2) Where a corporation commits an offence under this Part, any officer,
director or agent of the corporation who directed, authorized, assented
to, acquiesced in or participated in the commission of the offence is a
party to and guilty of the offence and is liable on conviction to the
punishment provided for the offence, whether or not the corporation has
been prosecuted or convicted.
Evidence of direction
(3) On any prosecution for an offence under this Part, a copy of a
direction purporting to have been made under this Part and purporting to
have been signed by the person authorized under this Part to make the
direction is evidence of the direction without proof of the signature or
authority of the person by whom it purports to be signed.
Limitation period
(4) Proceedings in respect of an offence under this Part may be
instituted at any time within but not later than one year after the time
when the subject-matter of the proceedings arose.
R.S., 1985, c. L-2, s. 149; R.S., 1985, c. 9 (1st Supp.), s. 4.
Venue
150. A complaint or information in respect of an offence under this Part
may be heard, tried and determined by a provincial court judge or
justice if the accused is resident or carrying on business within the
territorial jurisdiction of the provincial court judge or justice,
notwithstanding that the matter of the complaint or information did not
arise in that territorial jurisdiction.
R.S., 1985, c. L-2, s. 150; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 27
(1st Supp.), s. 203.
Information
151. In any proceedings in respect of an offence under this Part, an
information may include more than one offence committed by the same
person and all those offences may be tried concurrently and one
conviction for any or all such offences may be made.
R.S., 1985, c. L-2, s. 151; R.S., 1985, c. 9 (1st Supp.), s. 4.
Injunction proceedings
152. The Minister may apply or cause an application to be made to a
judge of a superior court or the Federal Court-Trial Division for an
order enjoining any person from contravening a provision of this Part,
whether or not a prosecution has been instituted for an offence under
this Part, or enjoining any person from continuing any act or default
for which the person was convicted of an offence under this Part.
R.S., 1985, c. L-2, s. 152; R.S., 1985, c. 9 (1st Supp.), s. 4.
Injunction
153. The judge of a court to whom an application under section 152 is
made may, in his discretion, make the order applied for under that
section and the order may be entered and enforced in the same manner as
any other order or judgment of that court.
R.S., 1985, c. L-2, s. 153; R.S., 1985, c. 9 (1st Supp.), s. 4.
Imprisonment precluded in certain cases
154. (1) Where a person is convicted of an offence under this Part on
proceedings by way of summary conviction and the only punishment
provided for the offence under this Part is a fine, no imprisonment may
be imposed as punishment for the offence or in default of payment of any
fine imposed as punishment.
Recovery of fines
(2) Where a person is convicted of an offence under this Part and the
fine that is imposed is not paid when required, the prosecutor may, by
filing the conviction, enter as a judgment the amount of the fine and
costs, if any, in a superior court of the province in which the trial
was held, and the judgment is enforceable against the person in the same
manner as if it were a judgment rendered against the person in that
court in civil proceedings.
R.S., 1985, c. L-2, s. 154; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 24
(3rd Supp.), s. 8.
Providing of Information
Notice to provide information
155. (1) Where a person is required to provide information for the
purposes of this Part, the Minister may require the information to be
provided by a notice to that effect served personally or sent by
registered mail addressed to the latest known address of the person, and
the person shall comply with the notice within such reasonable time as
is specified therein.
Proof of failure to provide information
(2) A certificate purporting to be signed by the Minister or by a person
authorized by the Minister,
(a) certifying that a notice was sent by registered mail to the person
to whom it was addressed, accompanied by an identified post office
certificate of the registration and a true copy of the notice, and
(b) certifying that the information has not been provided as requested
in the notice sent by the Minister,
is evidence of the facts set out therein without proof of the signature
or official character of the person by whom the certificate purports to
be signed.
R.S., 1985, c. L-2, s. 155; R.S., 1985, c. 9 (1st Supp.), s. 4.
Powers of the Canada Industrial Relations Board
Reference or complaint to Board
156. (1) Despite subsection 14(1), the Chairperson or a Vice-Chairperson
of the Board, or a member of the Board appointed under paragraph
9(2)(e), may dispose of any reference or complaint made to the Board
under this Part and, in relation to any reference or complaint so made,
that person
(a) has all the powers, rights and privileges that are conferred on the
Board by this Act other than the power to make regulations under section
15; and
(b) is subject to all the obligations and limitations that are imposed
on the Board by this Act.
Application of Part I provisions
(2) The provisions of Part I respecting orders and decisions of and
proceedings before the Board under that Part apply in respect of all
orders and decisions of and proceedings before the Board or any member
thereof under this Part.
R.S., 1985, c. L-2, s. 156; R.S., 1985, c. 9 (1st Supp.), s. 4; 1998, c.
26, s. 57.
Regulations
Regulations
157. (1) Subject to this section, the Governor in Council may make
regulations
(a) prescribing anything that by this Part is to be prescribed; and
(b) respecting such other matters or things as are necessary to carry
out the provisions of this Part.
Idem
(1.1) Where the Governor in Council is of the opinion that a regulation
cannot appropriately be made by prescribing a standard or other thing
that by a paragraph of sections 125 to 126 is to be prescribed, the
Governor in Council may make regulations in relation to the safety and
health matters referred to in that paragraph in such manner as the
Governor in Council considers appropriate in the circumstances, whether
or not the opinion of the Governor in Council is indicated at the time
the regulations are made.
(2) and (2.1) [Repealed, 1993, c. 42, s. 11]
Ministerial recommendations
(3) Regulations of the Governor in Council under subsection (1) or (1.1)
in respect of occupational safety and health of employees employed
(a) on ships, trains or aircraft, while in operation, shall be made on
the recommendation of the Minister and the Minister of Transport; or
(b) on or in connection with exploration or drilling for or the
production, conservation, processing or transportation of oil or gas in
frontier lands, as defined in the Canada Petroleum Resources Act, shall
be made on the recommendation of
(i) the Minister and the Minister of Indian Affairs and Northern
Development, and
(ii) the Minister of Natural Resources, taking into consideration any
recommendations made by the National Energy Board in relation to the
regulations.
Regulations general or specific
(4) Regulations made under this section may be made applicable to all
employment to which this Part applies, to one or more classes of
employment to which this Part applies or to such employment in one or
more work places.
Incorporation of standards
(5) Regulations made under this section incorporating a standard by
reference may incorporate the standard as enacted or adopted at a
certain date, as amended to a certain date or as amended from time to
time.
Compliance with standards
(6) Regulations made under this section that prescribe or incorporate a
standard but that require the standard to be complied with only to the
extent that compliance is practicable or reasonably practicable in
circumstances governed by the standard may require the employer to
report to a safety officer the reason that full compliance is not
practicable or reasonably practicable in particular circumstances.
R.S., 1985, c. L-2, s. 157; R.S., 1985, c. 9 (1st Supp.), s. 4, c. 26
(4th Supp.), s. 5; 1992, c. 1, s. 93; 1993, c. 42, s. 11; 1994, c. 10,
s. 29, c. 41, s. 37.
Application of Provincial Laws
Provincial Crown corporations
158. The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Atomic Energy Control Act.
R.S., 1985, c. L-2, s. 158; R.S., 1985, c. 9 (1st Supp.), s. 4; 1996, c.
12, s. 3.
Exclusion from application
159. (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Atomic Energy
Control Act.
Regulations
(2) On the recommendation of the Minister after consultation with the
Atomic Energy Control Board, the Governor in Council may make
regulations relating to occupational safety and health in relation to
employment that is subject to a regulation made pursuant to subsection
(1).
R.S., 1985, c. L-2, s. 159; R.S., 1985, c. 9 (1st Supp.), s. 4; 1996, c.
12, s. 3.
Application of certain provisions
160. Subsections 121.2(3) to (8) apply, with such modifications as the
circumstances require, in respect of a regulation made pursuant to
subsection 159(2) except that the references to "subsection (2)" in
subsections 121.2(3) to (6) shall be read as references to subsection
159(2).
R.S., 1985, c. L-2, s. 160; R.S., 1985, c. 9 (1st Supp.), s. 4; 1996, c.
12, s. 3.
161. to 165. [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 4]
PART III
STANDARD HOURS, WAGES, VACATIONS AND HOLIDAYS
Interpretation
Definitions
166. In this Part,
"collective agreement" ® convention collective ¯
"collective agreement" means an agreement in writing containing terms or
conditions of employment of employees, including provisions with
reference to rates of pay, hours of work and settlement by a third party
of disagreements arising in the application of the agreement, between
(a) an employer or an employers' organization acting on behalf of an
employer, and
(b) a trade union acting on behalf of the employees in collective
bargaining or as a party to an agreement with the employer or employers'
organization;
"day" ®jour¯
"day" means any period of twenty-four consecutive hours;
"employer" ®employeur¯
"employer" means any person who employs one or more employees;
"general holiday" ®jours f‚ri‚s¯
"general holiday" means New Year's Day, Good Friday, Victoria Day,
Canada Day, Labour Day, Thanksgiving Day, Remembrance Day, Christmas Day
and Boxing Day and includes any day substituted for any such holiday
pursuant to section 195;
"industrial establishment" ®‚tablissement¯
"industrial establishment" means any federal work, undertaking or
business and includes such branch, section or other division of a
federal work, undertaking or business as is designated as an industrial
establishment by regulations made under paragraph 264(b);
"inspector" ®inspecteur¯
"inspector" means any person designated as an inspector under section
249;
"order" ®arrˆt‚¯
"order" means any order of the Minister made pursuant to this Part or
the regulations;
"overtime" ®heures suppl‚mentaires¯
"overtime" means hours of work in excess of standard hours of work;
"qualified medical practitioner" ® m‚decin ¯ ou ® m‚decin qualif‚ ¯
"qualified medical practitioner" means a person who is entitled to
practise medicine under the laws of a province;
"regional director" ® directeur r‚gional ¯
"regional director" means the director of a regional office of the
Department of Human Resources Development or the director's designated
representative;
"standard hours of work" ® dur‚e normale du travail ¯
"standard hours of work" means the hours of work established pursuant to
section 169 or 170 or in any regulations made pursuant to section 175;
"trade union" ®syndicat¯
"trade union" means any organization of employees formed for purposes
that include the regulation of relations between employers and
employees;
"wages" ®salaire¯
"wages" includes every form of remuneration for work performed but does
not include tips and other gratuities;
"week" ®semaine¯
"week" means, in relation to Division I, the period between midnight on
Saturday and midnight on the immediately following Saturday.
R.S., 1985, c. L-2, s. 166; 1993, c. 42, s. 12; 1996, c. 11, s. 66.
Application
Application of Part
167. (1) This Part applies
(a) to employment in or in connection with the operation of any federal
work, undertaking or business, other than a work, undertaking or
business of a local or private nature, in the Yukon Territory, the
Northwest Territories or Nunavut;
(b) to and in respect of employees who are employed in or in connection
with any federal work, undertaking or business described in paragraph
(a);
(c) to and in respect of any employers of the employees described in
paragraph (b);
(d) to and in respect of any corporation established to perform any
function or duty on behalf of the Government of Canada other than a
department as defined in the Financial Administration Act; and
(e) to or in respect of any Canadian carrier, as defined in section 2 of
the Telecommunications Act, that is an agent of Her Majesty in right of
a province.
Non-application of Division I to certain employees
(2) Division I does not apply to or in respect of employees who
(a) are managers or superintendents or exercise management functions; or
(b) are members of such professions as may be designated by regulation
as professions to which Division I does not apply.
Non-application of Division XIV to managers
(3) Division XIV does not apply to or in respect of employees who are
managers.
R.S., 1985, c. L-2, s. 167; R.S., 1985, c. 9 (1st Supp.), s. 5; 1993, c.
28, s. 78, c. 38, s. 90.
Saving more favourable benefits
168. (1) This Part and all regulations made under this Part apply
notwithstanding any other law or any custom, contract or arrangement,
but nothing in this Part shall be construed as affecting any rights or
benefits of an employee under any law, custom, contract or arrangement
that are more favourable to the employee than his rights or benefits
under this Part.
Where collective agreement applies exclusively
(1.1) Divisions II, IV, V and VIII do not apply to an employer and
employees who are parties to a collective agreement that confers on
employees rights and benefits at least as favourable as those conferred
by those respective Divisions in respect of length of leave, rates of
pay and qualifying periods for benefits, and, in respect of employees to
whom the third party settlement provisions of such a collective
agreement apply, the settlement of disagreements relating to those
matters is governed exclusively by the collective agreement.
Sunday
(2) Nothing in this Part authorizes the doing of any work on Sunday that
is prohibited by law.
R.S., 1985, c. L-2, s. 168; 1993, c. 42, s. 13.
DIVISION I
HOURS OF WORK
Standard hours of work
169. (1) Except as otherwise provided by or under this Division
(a) the standard hours of work of an employee shall not exceed eight
hours in a day and forty hours in a week; and
(b) no employer shall cause or permit an employee to work longer hours
than eight hours in any day or forty hours in any week.
Averaging
(2) Where the nature of the work in an industrial establishment
necessitates irregular distribution of the hours of work of an employee,
the hours of work in a day and the hours of work in a week may be
calculated, in such manner and in such circumstances as may be
prescribed by the regulations, as an average for a period of two or more
weeks.
Duration of averaging
(2.1) The averaged hours of work calculated pursuant to subsection (2)
remain in effect
(a) where the averaging of hours of work is agreed to in writing by an
employer and a trade union, for the duration of that agreement or for
such shorter period as is agreed to by the parties; or
(b) where the averaging of hours of work is not agreed to in writing by
an employer and a trade union, for no longer than three years.
General holidays in week
(3) In a week in which one or more general holidays occur that under
Division V entitle an employee to holidays with pay in that week, the
hours of work of the employee in that week shall be reduced by the
standard hours of work for each general holiday in that week and, for
the purposes of this subsection, in calculating the time worked by an
employee in any such week, no account shall be taken of any time worked
by the employee on the holidays or of any time during which the employee
was at the disposal of his employer during the holidays.
R.S., 1985, c. L-2, s. 169; 1993, c. 42, s. 14.
Modified work schedule
170. (1) An employer may, in respect of employees subject to a
collective agreement, establish, modify or cancel a work schedule under
which the hours exceed the standard hours of work set out in paragraph
169(1)(a) if
(a) the average hours of work for a period of two or more weeks does not
exceed forty hours a week; and
(b) the schedule, or its modification or cancellation, is agreed to in
writing by the employer and the trade union.
Idem
(2) Subject to subsection (3), an employer may, in respect of employees
not subject to a collective agreement, establish, modify or cancel a
work schedule under which the hours exceed the standard hours of work
set out in paragraph 169(1)(a) if
(a) the average hours of work for a period of two or more weeks does not
exceed forty hours a week; and
(b) the schedule, or its modification or cancellation, has been approved
by at least seventy per cent of the affected employees.
Posting of notice
(3) Where a work schedule is to be established, modified or cancelled
pursuant to subsection (2), the employer shall post a notice of the new
schedule, or of its modification or cancellation, in readily accessible
places where it is likely to be seen by the affected employees, for at
least thirty days before the new schedule or its modification or
cancellation takes effect.
R.S., 1985, c. L-2, s. 170; 1993, c. 42, s. 15.
Maximum hours of work
industrial establishment in or in connection with the operation of
which the employee is employed.
Averaging
(2) Subsection 169(2) applies in the computation of the maximum hours of
work in a week prescribed under this section.
R.S., c. L-1, s. 30; R.S., c. 17(2nd Supp.), s. 4; 1977-78, c. 27, s. 6.
Maximum hours of work
172. (1) An employer may, in respect of employees subject to a
collective agreement, establish, modify or cancel a work schedule under
which the hours exceed the maximum set out in section 171 or in
regulations made under section 175 if
(a) the average hours of work for a period of two or more weeks does not
exceed forty-eight hours a week; and
(b) the schedule, or its modification or cancellation, is agreed to in
writing by the employer and the trade union.
Idem
(2) Subject to subsection (3), an employer may, in respect of employees
not subject to a collective agreement, establish, modify or cancel a
work schedule under which the hours exceed the maximum set out in
section 171 or in regulations made under section 175 if
(a) the average hours of work for a period of two or more weeks does not
exceed forty-eight hours a week; and
(b) the schedule, or its modification or cancellation, has been approved
by at least seventy per cent of the affected employees.
Posting of notice
(3) Where a work schedule is to be established, modified or cancelled
pursuant to subsection (2), the employer shall post a notice of the new
schedule, or of its modification or cancellation, in readily accessible
places where it is likely to be seen by the affected employees, for at
least thirty days before the new schedule or its modification or
cancellation takes effect.
R.S., 1985, c. L-2, s. 172; 1993, c. 42, s. 16.
Vote
172.1 (1) Where a work schedule is established, modified or cancelled
pursuant to subsection 170(2) or 172(2), any affected employee may,
within ninety days after the new schedule or its modification or
cancellation takes effect, request an inspector to conduct a vote to
determine whether seventy per cent of the affected employees approve the
new schedule or its modification or cancellation.
Duty of inspector
(2) Where a request has been made under subsection (1), the inspector
shall conduct a secret vote to determine the percentage of the affected
employees that approves the new schedule or the modification or
cancellation.
Confidentiality
(3) A request made under subsection (1), the ballots and any other
documents relating to the vote are confidential and shall not be given
to the employer.
Counting of ballots
(4) The inspector shall count the ballots in the presence of a
representative chosen by the affected employees and a representative
chosen by the employer.
Communication of result of vote
(5) The inspector shall report the result of the vote to the regional
director, who shall then inform the employer, by written notice, of the
result.
Effect of non-approval
(6) Where the result of the vote indicates that less than seventy per
cent of the affected employees approve the new schedule or its
modification or cancellation, the employer shall comply with the result
of the vote within thirty days after being informed of that result by
the regional director.
Regulations
(7) The Governor in Council may make regulations respecting the conduct
of votes under this section.
Statutory Instruments Act not applicable
(8) The Statutory Instruments Act does not apply in respect of the
written notice given by the regional director to the employer pursuant
to subsection (5).
1993, c. 42, s. 16.
Duration
172.2 (1) A work schedule that is established or modified under
subsection 170(1) or 172(1) remains in effect for the duration of the
written agreement between the employer and the trade union.
Idem
(2) A work schedule that is established or modified under subsection
170(2) or 172(2) remains in effect for three years or for such shorter
period as is agreed to by the parties.
1993, c. 42, s. 16.
Scheduling hours of work
173. Except as may be otherwise prescribed by the regulations, hours of
work in a week shall be so scheduled and actually worked that each
employee has at least one full day of rest in the week, and, wherever
practicable, Sunday shall be the normal day of rest in the week.
R.S., c. L-1, s. 31.
Overtime pay
174. When an employee is required or permitted to work in excess of the
standard hours of work, the employee shall, subject to any regulations
made pursuant to section 175, be paid for the overtime at a rate of
wages not less than one and one-half times his regular rate of wages.
R.S., c. L-1, s. 32; R.S., c. 17(2nd Supp.), s. 5.
Regulations for the purpose of this Division
175. (1) The Governor in Council may make regulations
(a) modifying the provisions of sections 169 and 171 for the purpose of
the application of this Division to classes of employees who are
employed in or in connection with the operation of any industrial
establishment where, in the opinion of the Governor in Council, the
application of those sections without modification
(i) would be or is unduly prejudicial to the interests of the employees
in those classes, or
(ii) would be or is seriously detrimental to the operation of the
industrial establishment;
(b) exempting any class of employees from the application of any one or
more of sections 169, 171 and 174 where the Governor in Council is
satisfied that those sections cannot reasonably be applied to that class
of employees;
(c) providing that section 174 does not apply in circumstances where
work practices specified in the regulations are followed that in the
opinion of the Governor in Council make the application of that section
either unreasonable or inequitable; and
(d) providing for the calculation of hours worked by employees of any
class who are employed in any industrial establishment or in any class
of industrial establishment.
Inquiries
(2) No regulations may be made pursuant to paragraph (1)(a) or (b)
unless the Minister, pursuant to section 248, has caused an inquiry to
be made into and concerning the employment of employees liable to be
affected thereby and has received a report from the person or persons
appointed to hold the inquiry.
R.S., c. 17(2nd Supp.), s. 5.
Excess hours under ministerial permit
176. (1) On the application of an employer or an employer's
organization, the Minister, having regard to the conditions of
employment in any industrial establishment and the welfare of the
employees, may, by a permit in writing, authorize hours to be worked by
any class of employees therein in excess of the maximum hours of work
specified in or prescribed under section 171, established pursuant to
section 172 or prescribed by regulations made under section 175.
Justifying permit
(2) No permit may be issued under subsection (1) unless the applicant
has satisfied the Minister
(a) that there are exceptional circumstances to justify the working of
additional hours;
(b) that the employer had posted a notice of the application for a
permit under subsection (1), for at least thirty days before its
proposed effective date, in places readily accessible to the affected
class of employees where they were likely to see it; and
(c) if those employees are represented by a trade union, that the
employer had informed the trade union in writing of the application for
the permit.
Duration of permit
(3) A permit under subsection (1) shall be issued for the period
specified therein, which shall not be longer than the period during
which it is anticipated that the exceptional circumstances that
justified the permit will continue.
Additional hours may be specified
(4) A permit under subsection (1) may specify either
(a) the total of the number of additional hours in excess of the maximum
hours specified in or prescribed under section 171 or by regulations
made under section 175, or
(b) the additional hours that may be worked in any day and in any week
during the period of the permit.
Report to Minister
(5) Where a permit has been issued under this section, the employer for
whom or on whose behalf the permit was issued shall report in writing to
the Minister, within fifteen days after the expiration of the period
specified in the permit or within such time as the Minister may fix in
the permit, stating the number of employees who worked in excess of the
maximum hours specified in or prescribed under section 171 or by
regulations made under section 175 and the number of additional hours
each of them worked.
R.S., 1985, c. L-2, s. 176; 1993, c. 42, s. 17.
Emergency work
177. (1) The maximum hours of work in a week specified in or prescribed
under section 171, established pursuant to section 172 or prescribed by
regulations made under section 175 may be exceeded, but only to the
extent necessary to prevent serious interference with the ordinary
working of the industrial establishment affected, in cases of
(a) accident to machinery, equipment, plant or persons;
(b) urgent and essential work to be done to machinery, equipment or
plant; or
(c) other unforeseen or unpreventable circumstances.
Reporting additional work
(2) Where the maximum hours of work in an industrial establishment have
been exceeded under the authority of subsection (1), the employer shall
report in writing to the regional director, and also to the trade union
if the affected employees are subject to a collective agreement, within
fifteen days after the end of the month in which the maximum was
exceeded, stating the nature of the circumstances in which the maximum
was exceeded, the number of employees who worked in excess of the
maximum and the number of additional hours each of them worked.
R.S., 1985, c. L-2, s. 177; 1993, c. 42, s. 18.
DIVISION II
MINIMUM WAGES
Minimum wage
178. (1) Except as otherwise provided by or under this Division, an
employer shall pay to each employee a wage at a rate
(a) not less than the minimum hourly rate fixed, from time to time, by
or under an Act of the legislature of the province where the employee is
usually employed and that is generally applicable regardless of
occupation, status or work experience; or
(b) where the wages of the employee are paid on any basis of time other
than hourly, not less than the equivalent of the rate under paragraph
(a) for the time worked by the employee.
Where wage rate based on age
(2) For the purposes of paragraph (1)(a), where minimum hourly rates for
a province are fixed on the basis of age, the minimum hourly rate for
that province is the highest of those rates.
Amendment of minimum wage
(3) For the purposes of paragraph (1)(a), the Governor in Council may,
by order,
(a) replace the minimum hourly rate that has been fixed with respect to
employment in a province with another rate; or
(b) fix a minimum hourly rate with respect to employment in a province
if no such minimum hourly rate has been fixed.
Minimum on other basis than time
(4) Where the wages of an employee are computed and paid on a basis
other than time or on a combined basis of time and some other basis, the
Minister may, by order,
(a) fix a standard basis of work to which a minimum wage on a basis
other than time may be applied; and
(b) fix a minimum rate of wage that in the opinion of the Minister is
the equivalent of the minimum rate under subsection (1).
Minimum rate fixed by order to be paid
(5) Except as otherwise provided by or under this Division, the employer
shall pay to each employee who is paid on a basis other than time or on
a combined basis of time and some other basis a wage at a rate not less
than the minimum rate fixed by order under subsection (4).
R.S., 1985, c. L-2, s. 178; 1996, c. 32, s. 1.
Employees under 17 years of age
179. An employer may employ a person under the age of seventeen years
only
(a) in an occupation specified by the regulations; and
(b) subject to the conditions fixed by the regulations for employment in
that occupation.
R.S., 1985, c. L-2, s. 179; 1996, c. 32, s. 2.
180. [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 6]
Regulations applicable to Division
181. The Governor in Council may make regulations for carrying out the
purposes and provisions of this Division and, without restricting the
generality of the foregoing, may make regulations
(a) requiring employers to pay employees who report for work at the call
of the employer wages for such minimum number of hours as may be
prescribed, whether or not the employee is called on to perform any work
after so reporting for work;
(b) fixing the maximum price to be charged for board, whether full or
partial, furnished by or on behalf of an employer to an employee, or the
maximum deduction to be made therefor from the wages of the employee by
the employer;
(c) fixing the maximum price to be charged for living quarters, either
permanent or temporary, furnished by or on behalf of an employer to an
employee, whether or not those quarters are self-contained and whether
or not the employer retains general possession and custody thereof, or
the maximum deduction to be made therefor from the wages of the employee
by the employer;
(d) governing the charges or deductions for furnishing uniforms or other
articles of wearing apparel that an employer may require an employee to
wear or requiring an employer in any specified circumstances to provide,
maintain or launder uniforms or other articles of wearing apparel that
the employer may require an employee to wear;
(e) governing the charges or deductions for furnishing any tools or
equipment that an employer may require an employee to use and for the
maintenance and repair of any such tools or equipment;
(f) specifying, for the purposes of section 179, the occupations in
which persons under the age of seventeen years may be employed in an
industrial establishment and fixing the conditions of that employment;
and
(g) exempting, on such terms and conditions and for such periods as are
considered advisable, any employer from the application of section 178
in respect of any class of employees who are being trained on the job,
if the training facilities provided and used by the employer are
adequate to provide a training program that will increase the skill or
proficiency of an employee.
R.S., 1985, c. L-2, s. 181; 1996, c. 32, s. 3.
DIVISION III
EQUAL WAGES
Application of sections
182. (1) For the purposes of ascertaining whether a discriminatory
practice under section 11 of the Canadian Human Rights Act is being or
has been engaged in, sections 249, 250, 252, 253, 254, 255 and 264
apply, with such modifications as the circumstances require, as if this
Part expressly required an employer to refrain from that discriminatory
practice.
Report to Commission
(2) Where an inspector has reasonable grounds at any time for believing
that an employer is engaging or has engaged in a discriminatory practice
described in subsection (1), the inspector may notify the Canadian Human
Rights Commission or file a complaint with that Commission under section
40 of the Canadian Human Rights Act.
R.S., c. 17(2nd Supp), s. 9; 1976-77, c. 33, s. 66.
DIVISION IV
ANNUAL VACATIONS
Definitions
183. In this Division,
"vacation pay" ®indemnit‚ de cong‚ annuel¯
"vacation pay" means four per cent or, after six consecutive years of
employment by one employer, six per cent of the wages of an employee
during the year of employment in respect of which the employee is
entitled to the vacation;
"year of employment" ®ann‚e de service¯
"year of employment" means continuous employment of an employee by one
employer
(a) for a period of twelve consecutive months beginning with the date
the employment began or any subsequent anniversary date thereafter, or
(b) for a calendar year or other year determined by the employer, in
accordance with the regulations, in relation to an industrial
establishment.
R.S., 1985, c. L-2, s. 183; 1993, c. 42, s. 19.
Annual vacation with pay
184. Except as otherwise provided by or under this Division, every
employee is entitled to and shall be granted a vacation of at least two
weeks with vacation pay and, after six consecutive years of employment
by one employer, at least three weeks with vacation pay in respect of
every year of employment by that employer.
R.S., c. L-1, s. 40; R.S., c. 17(2nd Supp.), s. 10; 1976-77, c. 28, s.
49; 1977-78, c. 27, s. 11.
Granting vacation with pay
185. The employer of an employee who under this Division has become
entitled to a vacation with vacation pay
(a) shall grant to the employee the vacation to which the employee is
entitled, which shall begin not later than ten months immediately
following the completion of the year of employment for which the
employee became entitled to the vacation; and
(b) shall, at such time as is prescribed by the regulations, pay to the
employee the vacation pay to which the employee is entitled in respect
of that vacation.
R.S., c. L-1, s. 41; R.S., c. 17(2nd Supp.), s. 11.
Vacation pay
186. Vacation pay shall for all purposes be deemed to be wages.
R.S., c. L-1, s. 42.
General holiday during vacation
187. Where one or more general holidays occur during a vacation granted
to an employee pursuant to this Division, the vacation to which the
employee is entitled under this Division may be extended by one day for
each such holiday, and the employer shall pay to the employee in
addition to the vacation pay the wages to which the employee is entitled
for those general holidays.
R.S., c. L-1, s. 43; 1977-78, c. 27, s. 12.
Termination of employment during year
188. When an employee ceases to be employed, the employer shall
forthwith pay to the employee
(a) any vacation pay then owing by the employer to the employee under
this Division in respect of any prior completed year of employment; and
(b) four per cent or, if the employee has completed six consecutive
years of employment by one employer, six per cent of the wages of the
employee during any part of the completed portion of his year of
employment in respect of which vacation pay has not been paid to the
employee.
R.S., c. L-1, s. 44; R.S., c. 17(2nd Supp.), s. 12; 1976-77, c. 28, s.
49; 1977-78, c. 27, s. 13.
Transfer of work, undertaking or business
189. (1) Where any particular federal work, undertaking or business, or
part thereof, in or in connection with the operation of which an
employee is employed is, by sale, lease, merger or otherwise,
transferred from one employer to another employer, the employment of the
employee by the two employers before and after the transfer of the work,
undertaking or business, or part thereof, shall, for the purposes of
this Division, be deemed to be continuous with one employer,
notwithstanding the transfer.
Inclusion
(2) For the purposes of subsection (1), a federal work, undertaking or
business includes
(a) any portion of the public service of Canada specified from time to
time in Part I or II of Schedule I to the Public Service Staff Relations
Act that is deleted from that Schedule and that is established as or
becomes a part of a corporation or any federal work, undertaking or
business to which this Part applies; or
(b) a portion of the public service of Canada included in a portion of
the public service of Canada so specified in Part I or II of Schedule I
to that Act that is severed from the portion in which it was included
and that is established as or becomes a part of such a corporation or
federal work, undertaking or business.
R.S., 1985, c. L-2, s. 189; R.S., 1985, c. 9 (1st Supp.), s. 7; 1996, c.
18, s. 10.
Regulations in relation to annual vacations
190. The Governor in Council may make regulations for carrying out the
purposes and provisions of this Division and, without restricting the
generality of the foregoing, may make regulations
(a) defining the circumstances and conditions under which the rights of
an employee under this Division may be waived or the enjoyment thereof
postponed;
(b) prescribing the notices to be given to employees of the times when
vacations may be taken;
(c) prescribing the time when vacation pay shall be paid;
(d) defining the absences from employment that shall be deemed not to
have interrupted continuity of employment;
(e) respecting the determination by the employer of a year of employment
in relation to any industrial establishment;
(f) for the calculation and determination of vacation and vacation pay
in the case of seasonal or temporary employees or in other suitable
cases;
(g) providing for the granting of vacation or the payment of vacation
pay in the event of temporary cessation of employment; and
(h) providing for the application of this Division where, owing to
illness or other unavoidable absence, an employee has been absent from
his employment.
R.S., 1985, c. L-2, s. 190; 1993, c. 42, s. 20.
DIVISION V
GENERAL HOLIDAYS
Definition of "employed in a continuous operation
191. In this Division, the expression "employed in a continuous
operation" refers to employment in
(a) any industrial establishment in which, in each seven day period,
operations once begun normally continue without cessation until the
completion of the regularly scheduled operations for that period;
(b) any operations or services concerned with the running of trains,
planes, ships, trucks and other vehicles, whether in scheduled or non-
scheduled operations;
(c) any telephone, radio, television, telegraph or other communication
or broadcasting operations or services; or
(d) any operation or service normally carried on without regard to
Sundays or public holidays.
R.S., c. L-1, s. 47.
Entitlement to holidays
192. Except as otherwise provided by this Division, every employee is
entitled to and shall be granted a holiday with pay on each of the
general holidays falling within any period of his employment.
R.S., c. L-1, s. 48.
General holiday falling on day off
193. (1) Except as otherwise provided by this Division and subject to
subsection (2), when a general holiday falls on a day that is a non-
working day for an employee, the employee is entitled to and shall be
granted a holiday with pay at some other time, which may be by way of
addition to his annual vacation or granted as a holiday with pay at a
time convenient to both the employee and the employer.
Alternative day for holiday falling on non-working Saturday or Sunday
(2) Except as otherwise provided by this Division, when New Year's Day,
Canada Day, Remembrance Day, Christmas Day or Boxing Day falls on a
Sunday or Saturday that is a non-working day, the employee is entitled
to and shall be granted a holiday with pay on the working day
immediately preceding or following the general holiday.
R.S., c. L-1, s. 49; R.S., c. 17(2nd Supp.), s. 13; 1977-78, c. 27, s.
14.
Exemption under collective agreement
194. Section 193 does not apply in respect of any employees who are
employed under the terms of a collective agreement that entitles those
employees to at least nine holidays with pay, exclusive of any annual
vacation, in each year.
R.S., c. L-1, s. 50; 1977-78, c. 27, s. 15.
Substituted holidays
195. (1) An employer may, in respect of employees subject to a
collective agreement, substitute any other holiday for a general holiday
if the substitution is agreed to in writing by the employer and the
trade union, and the substituted holiday shall, for those employees, be
deemed to be a general holiday for the purposes of this Part.
Idem
(2) Subject to subsection (3), an employer may, in respect of employees
not subject to a collective agreement, substitute any other holiday for
a general holiday if the substitution has been approved by at least
seventy per cent of the affected employees, and the substituted holiday
shall, for those employees, be deemed to be a general holiday for the
purposes of this Part.
Posting of notice
(3) Where any other holiday is to be substituted for a general holiday
pursuant to subsection (2), the employer shall post a notice of the
substitution in readily accessible places where it is likely to be seen
by the affected employees, for at least thirty days before the
substitution takes effect.
R.S., 1985, c. L-2, s. 195; 1993, c. 42, s. 21.
Voting, duration
195.1 Sections 172.1 and 172.2 apply, with such modifications as the
circumstances require, in respect of the substitution of a general
holiday pursuant to this Division.
1993, c. 42, s. 21.
Weekly or monthly pay not to be reduced for holiday
196. (1) Where the wages for an employee are calculated on a weekly or
monthly basis, the weekly or monthly wages of the employee shall not be
reduced for a week or month in which a general holiday occurs by reason
only that the employee did not work on the general holiday.
Pay at daily or hourly rate
(2) An employee whose wages are calculated on a daily or hourly basis
shall, for a general holiday on which the employee does not work, be
paid at least the equivalent of the wages the employee would have earned
at his regular rate of wages for his normal hours of work.
Pay on other basis
(3) An employee whose wages are calculated on any basis other than a
basis mentioned in subsection (1) or (2) shall, for a general holiday on
which the employee does not work, be paid at least the equivalent of the
wages the employee would have earned at his regular rate of wages for
his normal working day.
R.S., c. L-1, s. 52.
Additional pay for holiday work
197. Except in the case of an employee employed in a continuous
operation, an employee who is required to work on a day on which the
employee is entitled under this Division to a holiday with pay shall be
paid, in addition to his regular rate of wages for that day, at a rate
at least equal to one and one-half times his regular rate of wages for
the time that the employee worked on that day.
R.S., 1985, c. L-2, s. 197; 1993, c. 42, s. 22(F).
Holiday work in continuous operation employment
198. An employee employed in a continuous operation who is required to
work on a day on which the employee is entitled under this Division to a
holiday with pay
(a) shall be paid, in addition to his regular rate of wages for that
day, at a rate at least equal to one and one-half times his regular rate
of wages for the time that the employee worked on that day;
(b) shall be given a holiday and pay in accordance with section 196 at
some other time, which may be by way of addition to his annual vacation
or granted as a holiday with pay at a time convenient to both the
employee and the employer; or
(c) shall, where a collective agreement that is binding on the employer
and the employee so provides, be paid in accordance with section 196 for
the first day on which the employee does not work after that day.
R.S., 1985, c. L-2, s. 198; 1993, c. 42, s. 23(F).
Holiday work for managers, etc.
199. Notwithstanding sections 197 and 198, an employee excluded from the
application of Division I under subsection 167(2) who is required to
work on a day on which the employee is entitled under this Division to a
holiday with pay shall be given a holiday and pay in accordance with
section 196 at some other time, which may be by way of addition to his
annual vacation or granted as a holiday with pay at a time convenient to
both the employee and the employer.
1977-78, c. 27, s. 17.
Holiday pay
200. Pay granted to an employee for a general holiday on which the
employee does not work shall for all purposes be deemed to be wages.
R.S., c. L-1, s. 55.
Exceptions
201. (1) An employee who does not work on a general holiday is not
entitled to be paid for the general holiday if, during the thirty days
immediately preceding the general holiday, the employee is not entitled
to wages
(a) for at least fifteen days; or
(b) where the employee is working under a schedule established or
modified pursuant to section 170, for at least the number of days
calculated or determined pursuant to any regulations made under section
201.1.
Idem
(2) No employee who is employed in a continuous operation is entitled to
be paid for a general holiday
(a) on which the employee did not report for work after having been
called to work on that day; or
(b) in respect of which the employee makes himself unavailable to work
in accordance with the conditions of employment in the industrial
establishment in which the employee is employed.
Exception
(3) Subsection (1) does not apply with respect to an employee, other
than an employee who is working under a schedule established or modified
pursuant to section 170, whose terms and conditions of employment with
respect to hours of work are such that the employee is unable to
establish entitlement to wages on at least fifteen days during the
thirty calendar days immediately preceding a general holiday.
Calculation of holiday pay
(4) An employee described in subsection (3) is not entitled to a holiday
with pay referred to in section 193 in respect of any general holiday on
which the employee does not work, but, notwithstanding section 196, the
employee is entitled to be paid 1/20th of the wages he has earned during
the thirty calendar days immediately preceding that general holiday.
R.S., 1985, c. L-2, s. 201; R.S., 1985, c. 9 (1st Supp.), s. 8; 1993, c.
42, s. 24.
Regulations
201.1 The Governor in Council may make regulations setting out the
manner of calculating or determining the number of days for the purpose
of paragraph 201(1)(b).
1993, c. 42, s. 25.
Holiday during first 30 days of employment
202. (1) An employee is not entitled to pay for a general holiday that
occurs in his first thirty days of employment with an employer if the
employee does not work on that day, but if required to work on the
general holiday the employee shall be paid at a rate at least equal to
one and one-half times his regular rate of wages for the time that the
employee worked on that day, unless the employee is employed in a
continuous operation in which case the employee is entitled to his
regular rate of wages for the time that the employee worked on that day.
Employment
(2) For the purposes of this section, a person shall be deemed to be in
the employment of another person when that person is available at the
call of that other person, whether or not that person is called on to
perform any work therefor.
R.S., c. L-1, s. 57.
DIVISION VI
MULTI-EMPLOYER EMPLOYMENT
Definition of "multi-employer employment"
203. (1) In this Division, "multi-employer employment", as more
particularly defined by the regulations, means employment in any
occupation or trade in which, by custom of that occupation or trade, any
or all employees would in the usual course of a working month be
ordinarily employed by more than one employer.
Regulations
(2) The Governor in Council may make regulations
(a) defining more particularly the expression "multi-employer
employment"; and
(b) modifying, to such extent as the Governor in Council deems
necessary, the provisions of Division IV, V, VII, VIII, X, XI, XIII or
XIV so that, as far as practicable, employees engaged in multi-employer
employment will be entitled to the same rights and benefits under that
Division as employees employed by one employer.
Idem, application
(3) Any regulation made pursuant to subsection (2) may be made
applicable to all federal works, undertakings or businesses or
particularly to one or more such works, undertakings or businesses or
such classes thereof or classes of employees thereof as may be specified
in the regulations.
R.S., 1985, c. L-2, s. 203; R.S., 1985, c. 9 (1st Supp.), s. 9.
DIVISION VII
REASSIGNMENT, MATERNITY LEAVE AND PARENTAL LEAVE
Maternity-related Reassignment and Leave
Reassignment and job modification
204. (1) An employee who is pregnant or nursing may, during the period
from the beginning of the pregnancy to the end of the twenty-fourth week
following the birth, request the employer to modify her job functions or
reassign her to another job if, by reason of the pregnancy or nursing,
continuing any of her current job functions may pose a risk to her
health or to that of the foetus or child.
Medical certificate
(2) An employee's request under subsection (1) must be accompanied by a
certificate of a qualified medical practitioner of the employee's choice
indicating the expected duration of the potential risk and the
activities or conditions to avoid in order to eliminate the risk.
R.S., 1985, c. L-2, s. 204; R.S., 1985, c. 9 (1st Supp.), s. 9; 1993, c.
42, s. 26.
Employer's obligations
205. (1) An employer to whom a request has been made under subsection
204(1) shall examine the request in consultation with the employee and,
where reasonably practicable, shall modify the employee's job functions
or reassign her.
Rights of employee
(2) An employee who has made a request under subsection 204(1) is
entitled to continue in her current job while the employer examines her
request, but, if the risk posed by continuing any of her job functions
so requires, she is entitled to and shall be granted a leave of absence
with pay at her regular rate of wages until the employer
(a) modifies her job functions or reassigns her, or
(b) informs her in writing that it is not reasonably practicable to
modify her job functions or reassign her,
and that pay shall for all purposes be deemed to be wages.
Onus of proof
(3) The onus is on the employer to show that a modification of job
functions or a reassignment that would avoid the activities or
conditions indicated in the medical certificate is not reasonably
practicable.
Employee to be informed
(4) Where the employer concludes that a modification of job functions or
a reassignment that would avoid the activities or conditions indicated
in the medical certificate is not reasonably practicable, the employer
shall so inform the employee in writing.
Status of employee
(5) An employee whose job functions are modified or who is reassigned
shall be deemed to continue to hold the job that she held at the time of
making the request under subsection 204(1), and shall continue to
receive the wages and benefits that are attached to that job.
Employee's right to leave
(6) An employee referred to in subsection (4) is entitled to and shall
be granted a leave of absence for the duration of the risk as indicated
in the medical certificate.
R.S., 1985, c. L-2, s. 205; R.S., 1985, c. 9 (1st Supp.), s. 9; 1993, c.
42, s. 26.
Entitlement to leave
205.1 An employee who is pregnant or nursing is entitled to and shall be
granted a leave of absence during the period from the beginning of the
pregnancy to the end of the twenty-fourth week following the birth, if
she provides the employer with a certificate of a qualified medical
practitioner of her choice indicating that she is unable to work by
reason of the pregnancy or nursing and indicating the duration of that
inability.
1993, c. 42, s. 26.
Employee's duty to inform employer
205.2 An employee whose job functions have been modified, who has been
reassigned or who is on a leave of absence shall give at least two weeks
notice in writing to the employer of any change in the duration of the
risk or in the inability as indicated in the medical certificate, unless
there is a valid reason why that notice cannot be given, and such notice
must be accompanied by a new medical certificate.
1993, c. 42, s. 26.
Maternity Leave
Entitlement to leave
206. Every employee who
(a) has completed six consecutive months of continuous employment with
an employer, and
(b) provides her employer with a certificate of a qualified medical
practitioner certifying that she is pregnant
is entitled to and shall be granted a leave of absence from employment
of up to seventeen weeks, which leave may begin not earlier than eleven
weeks prior to the estimated date of her confinement and end not later
than seventeen weeks following the actual date of her confinement.
R.S., 1985, c. L-2, s. 206; R.S., 1985, c. 9 (1st Supp.), s. 10; 1993,
c. 42, s. 26.
Parental Leave
Entitlement to leave
206.1 (1) Every employee who has completed six consecutive months of
continuous employment with an employer is entitled to and shall be
granted a leave of absence from employment as follows:
(a) subject to subsection (2), where an employee has or will have the
actual care and custody of a new-born child, the employee is entitled to
and shall be granted a leave of absence from employment of up to twenty-
four weeks in the fifty-two week period beginning on the day on which
the child is born or the day on which the child comes into the
employee's care; and
(b) subject to subsection (2), where an employee commences legal
proceedings under the laws of a province to adopt a child or obtains an
order under the laws of a province for the adoption of a child, the
employee is entitled to and shall be granted a leave of absence from
employment of up to twenty-four weeks in the fifty-two week period
beginning on the day on which the child comes into the employee's care.
Aggregate leave
(2) The aggregate amount of leave of absence from employment that may be
taken by two employees under this section in respect of the birth or
adoption of any one child shall not exceed twenty-four weeks.
1993, c. 42, s. 26.
General
Notification to employer
207. (1) Every employee who intends to take a leave of absence from
employment under section 206 or 206.1 shall
(a) give at least four weeks notice in writing to the employer unless
there is a valid reason why that notice cannot be given; and
(b) inform the employer in writing of the length of leave intended to be
taken.
Notice of change in length of leave
(2) Every employee who intends to take or who is on a leave of absence
from employment under section 206 or 206.1 shall give at least four
weeks notice in writing to the employer of any change in the length of
leave intended to be taken, unless there is a valid reason why that
notice cannot be given.
R.S., 1985, c. L-2, s. 207; R.S., 1985, c. 9 (1st Supp.), s. 10; 1993,
c. 42, s. 28.
Prohibition
208. (1) Subject to subsection (2), no employer shall require an
employee to take a leave of absence from employment because the employee
is pregnant.
Exception
(2) An employer may require a pregnant employee to take a leave of
absence from employment if the employee is unable to perform an
essential function of her job and no appropriate alternative job is
available for that employee.
Length of leave
(3) A pregnant employee who is unable to perform an essential function
of her job and for whom no appropriate alternative job is available may
be required to take a leave of absence from employment only for such
time as she is unable to perform that essential function.
Burden of proof
(4) The burden of proving that a pregnant employee is unable to perform
an essential function of her job rests with the employer.
R.S., 1985, c. L-2, s. 208; R.S., 1985, c. 9 (1st Supp.), s. 10.
Application
208.1 Regardless of the time at which an employee makes a request under
section 204, the rights and obligations provided under sections 204 and
205 take precedence over the application of subsection 208(2).
1993, c. 42, s. 29.
Right to notice of employment opportunities
209. Every employee who intends to or is required to take a leave of
absence from employment under this Division is entitled, on written
request therefor, to be informed in writing of every employment,
promotion or training opportunity that arises during the period when the
employee is on leave of absence from employment and for which the
employee is qualified, and on receiving such a request every employer of
such an employee shall so inform the employee.
R.S., 1985, c. L-2, s. 209; R.S., 1985, c. 9 (1st Supp.), s. 10.
Resumption of employment in same position
209.1 (1) Every employee who takes or is required to take a leave of
absence from employment under this Division is entitled to be reinstated
in the position that the employee occupied when the leave of absence
from employment commenced, and every employer of such an employee shall,
on the expiration of any such leave, reinstate the employee in that
position.
Comparable position
(2) Where for any valid reason an employer cannot reinstate an employee
in the position referred to in subsection (1), the employer shall
reinstate the employee in a comparable position with the same wages and
benefits and in the same location.
Wages and benefits affected by reorganization
(3) Where an employee takes leave under this Division and, during the
period of that leave, the wages and benefits of the group of employees
of which that employee is a member are changed as part of a plan to
reorganize the industrial establishment in which that group is employed,
that employee is entitled, on being reinstated in employment under this
section, to receive the wages and benefits in respect of that employment
that that employee would have been entitled to receive had that employee
been working when the reorganization took place.
Notice of changes in wages and benefits
(4) The employer of every employee who is on a leave of absence from
employment under this Division and whose wages and benefits would be
changed as a result of a reorganization referred to in subsection (3)
shall notify the employee in writing of that change as soon as possible.
R.S., 1985, c. 9 (1st Supp.), s. 10.
Right to benefits
209.2 (1) The pension, health and disability benefits and the seniority
of any employee who takes or is required to take a leave of absence from
employment under this Division shall accumulate during the entire period
of the leave.
Contributions by employee
(2) Where contributions are required from an employee in order for the
employee to be entitled to a benefit referred to in subsection (1), the
employee is responsible for and must, within a reasonable time, pay
those contributions for the period of any leave of absence under this
Division unless, before taking leave or within a reasonable time
thereafter, the employee notifies the employer of the employee's
intention to discontinue contributions during that period.
Contributions by employer
(2.1) An employer who pays contributions in respect of a benefit
referred to in subsection (1) shall continue to pay those contributions
during an employee's leave of absence under this Division in at least
the same proportion as if the employee were not on leave unless the
employee does not pay the employee's contributions, if any, within a
reasonable time.
Failure to pay contributions
(3) For the purposes of calculating the pension, health and disability
benefits of an employee in respect of whom contributions have not been
paid as required by subsections (2) and (2.1), the benefits shall not
accumulate during the leave of absence and employment on the employee's
return to work shall be deemed to be continuous with employment before
the employee's absence.
Deemed continuous employment
(4) For the purposes of calculating benefits of an employee who takes or
is required to take a leave of absence from employment under this
Division, other than benefits referred to in subsection (1), employment
on the employee's return to work shall be deemed to be continuous with
employment before the employee's absence.
R.S., 1985, c. 9 (1st Supp.), s. 10, c. 43 (3rd Supp.), s. 1.
Effect of leave
209.21 Notwithstanding the provisions of any income-replacement scheme
or any insurance plan in force at the workplace, an employee who takes a
leave of absence under this Division is entitled to benefits under the
scheme or plan on the same terms as any employee who is absent from work
for health-related reasons and is entitled to benefits under the scheme
or plan.
1993, c. 42, s. 30.
Status of certificate
209.22 A medical certificate given pursuant to this Division is
conclusive proof of the statements contained therein.
1993, c. 42, s. 30.
Prohibition
209.3 No employer shall dismiss, suspend, lay off, demote or discipline
an employee because the employee is pregnant or has applied for leave of
absence in accordance with this Division or take into account the
pregnancy of an employee or the intention of an employee to take leave
of absence from employment under this Division in any decision to
promote or train the employee.
R.S., 1985, c. 9 (1st Supp.), s. 10.
Regulations
209.4 The Governor in Council may make regulations
(a) specifying the absences from employment that shall be deemed not to
have interrupted continuous employment referred to in sections 206 and
206.1;
(b) specifying what does, or does not, constitute an essential function
of a job referred to in section 208; and
(c) specifying what does not constitute a valid reason for not
reinstating an employee in the position referred to in subsection
209.1(2).
R.S., 1985, c. 9 (1st Supp.), s. 10; 1993, c. 42, s. 31.
Application of section 189
209.5 Section 189 applies for the purposes of this Division.
R.S., 1985, c. 9 (1st Supp.), s. 10.
DIVISION VIII
BEREAVEMENT LEAVE
Employee entitled
210. (1) Every employee is entitled to and shall be granted, in the
event of the death of a member of his immediate family, bereavement
leave on any of his normal working days that occur during the three days
immediately following the day of the death.
Bereavement leave with pay
(2) Every employee who has completed three consecutive months of
continuous employment by an employer and is entitled to bereavement
leave under subsection (1) is entitled to such leave with pay at his
regular rate of wages for his normal hours of work, and such pay shall
for all purposes be deemed to be wages.
Regulations
(3) The Governor in Council may make regulations
(a) defining the expression "immediate family" for the purposes of
subsection (1);
(b) defining the expressions "regular rate of wages" and "normal hours
of work" for the purposes of subsection (2); and
(c) for the purposes of this Division, defining the absences from
employment that shall be deemed not to have interrupted continuity of
employment.
Application of section 189
(4) Section 189 applies for the purposes of this Division.
1977-78, c. 27, s. 20; 1980-81-82-83, c. 47, s. 27.
DIVISION IX
GROUP TERMINATION OF EMPLOYMENT
Definitions
211. In this Division,
"joint planning committee" ®comit‚ mixte¯
"joint planning committee" means a committee established pursuant to
section 214;
"redundant employee" ®surnum‚raire¯
"redundant employee" means an employee whose employment is to be
terminated pursuant to a notice under section 212;
"trade union" ®syndicat¯
"trade union" means a trade union that is certified under Part I to
represent any redundant employee or that is recognized by an employer of
any redundant employee as the bargaining agent for that employee.
1980-81-82-83, c. 89, s. 31.
Notice of group termination
212. (1) Any employer who terminates, either simultaneously or within
any period not exceeding four weeks, the employment of a group of fifty
or more employees employed by the employer within a particular
industrial establishment, or of such lesser number of employees as
prescribed by regulations applicable to the employer made under
paragraph 227(b), shall, in addition to any notice required to be given
under section 230, give notice to the Minister, in writing, of his
intention to so terminate at least sixteen weeks before the date of
termination of the employment of the employee in the group whose
employment is first to be terminated.
Copies of notice
(2) A copy of any notice given to the Minister under subsection (1)
shall be given immediately by the employer to the Minister of Human
Resources Development and the Canada Employment Insurance Commission and
any trade union representing a redundant employee, and where any
redundant employee is not represented by a trade union, a copy of that
notice shall be given to the employee or immediately posted by the
employer in a conspicuous place within the industrial establishment in
which that employee is employed.
Contents of notice
(3) A notice referred to in subsection (1) shall set out
(a) the date or dates on which the employer intends to terminate the
employment of any one or more employees;
(b) the estimated number of employees in each occupational
classification whose employment will be terminated; and
(c) such other information as is prescribed by the regulations.
Where employer deemed to terminate employment
(4) Except where otherwise prescribed by regulation, an employer shall,
for the purposes of this Division, be deemed to have terminated the
employment of an employee where the employer lays off that employee.
R.S., 1985, c. L-2, s. 212; 1996, c. 11, s. 67.
Cooperation with Commission
213. (1) An employer who gives notice to the Minister under section 212
and any trade union to which a copy of that notice is given shall give
the Canada Employment Insurance Commission any information requested by
it for the purpose of assisting any redundant employee and shall
cooperate with the Commission to facilitate the re-establishment in
employment of that employee.
Statement of benefits
(2) An employer who gives notice to the Minister under section 212 shall
give each redundant employee, as soon as possible after the notice is so
given but in any case not later than two weeks before the date of the
termination of the employment of the employee, a statement in writing
setting out, as at that date, his vacation benefits, wages, severance
pay and any other benefits and pay arising from his employment with that
employer.
R.S., 1985, c. L-2, s. 213; 1996, c. 11, s. 99.
Establishment of joint planning committee
214. (1) An employer who gives notice to the Minister under section 212
shall forthwith thereafter establish a joint planning committee
consisting of such number of members as is required or permitted by this
section and sections 215 and 217.
Minimum number of members
(2) A joint planning committee established under subsection (1) shall
consist of at least four members.
Appointment of members
(3) At least half of the members of a joint planning committee shall be
appointed, in accordance with subsections 215(1), (2) and (3), as
representatives of the redundant employees and the rest of the members
shall be appointed, in accordance with subsection 215(5), as
representatives of the employer.
1980-81-82-83, c. 89, s. 32.
Employee representatives
215. (1) Where all redundant employees are represented by a trade union
or trade unions, each trade union is entitled to appoint at least one
member of the joint planning committee as a representative of the
redundant employees it represents.
Idem
(2) Where no redundant employees are represented by a trade union, the
employees are entitled to appoint all the members of a joint planning
committee who are to be their representatives.
Idem
(3) Where some but not all redundant employees are represented by a
trade union or trade unions,
(a) each trade union is entitled to appoint at least one member of a
joint planning committee as a representative of the redundant employees
it represents; and
(b) the employees that are not represented by a trade union are entitled
to appoint at least one member of a joint planning committee as their
representative.
Election
(4) Each person appointed as a member of a joint planning committee
pursuant to subsection (2) or paragraph (3)(b) shall be elected by the
redundant employees entitled to appoint the member.
Employer representatives
(5) An employer is entitled to appoint, as his representatives on a
joint planning committee, a number of members not exceeding the number
of members to be appointed to the committee pursuant to subsections (1),
(2) and (3).
1980-81-82-83, c. 89, s. 32.
Time for appointment
216. The members of a joint planning committee shall be appointed and
shall convene for their first sitting within two weeks after the date of
the notice given to the Minister under section 212.
1980-81-82-83, c. 89, s. 32.
Failure to appoint
217. Where a trade union fails, or redundant employees fail, to appoint
a member to a joint planning committee as provided in sections 214 and
215, the Minister may, on application of any redundant employee, appoint
a member to the committee in lieu of that trade union or those
employees, as the case may be, and the member so appointed shall be a
representative of the redundant employees represented by the trade union
or of the redundant employees who failed to appoint the member, as the
case may be.
1980-81-82-83, c. 89, s. 32.
Notice of membership
218. On completion of the appointment of the members of a joint planning
committee, the employer shall post the names of those members in a
conspicuous place within the industrial establishment in which the
redundant employees are employed.
1980-81-82-83, c. 89, s. 32.
Procedure
219. (1) Subject to this Division, a joint planning committee may
determine its own procedure.
Co-chairpersons
(2) The members of a joint planning committee shall elect from among
themselves two co-chairpersons, one being a representative of the
redundant employees selected by their representatives and the other
being a representative of the employer selected by his representatives.
Sittings
(3) The co-chairpersons of a joint planning committee may, after
consultation with the other members of the committee, fix the time and
place of its sittings and shall notify the members of the time and place
so fixed.
Quorum
(4) A majority of the members of a joint planning committee in office,
at least half of which majority are representatives of the redundant
employees, constitutes a quorum, but the members shall not proceed in
the absence of any member of the committee at any sitting unless the
absent member has been given reasonable notice of the sitting.
Vacancy
(5) Where any vacancy occurs in the membership of a joint planning
committee before the committee has completed its work, the vacancy shall
be filled forthwith in the manner provided in this Division for the
selection of the person who vacated that membership.
Idem
(6) A vacancy in the membership of a joint planning committee does not
invalidate the constitution of the committee or impair the right of the
members of the committee in office to act, if the number of those
members is not less than a quorum.
Decision
(7) A decision or other act or thing taken or done by a majority of the
members of a joint planning committee present at a sitting of the
committee, if the members present constitute a quorum, shall be deemed
to have been taken or done by the committee.
R.S., 1985, c. L-2, s. 219; 1998, c. 26, s. 61(E).
Wages
220. A member of a joint planning committee is entitled to such time
from work as is necessary to attend sittings of the committee or to
carry out any other functions as such a member, and any time spent by
the member in carrying out any functions as a member shall, for the
purpose of calculating wages owing to the member, be deemed to have been
spent at his work.
1980-81-82-83, c. 89, s. 32.
Object of joint planning committee
221. (1) It is the object of a joint planning committee to develop an
adjustment program to
(a) eliminate the necessity for the termination of employment; or
(b) minimize the impact of the termination of employment on the
redundant employees and to assist those employees in obtaining other
employment.
Scope of matters considered
(2) In attaining its object under subsection (1), a joint planning
committee may, unless the members of the committee agree otherwise, deal
only with such matters as are normally the subject-matter of collective
agreement in relation to the termination of employment.
Reasonable effort
(3) The members of a joint planning committee shall cooperate and make
every reasonable effort to develop an adjustment program as
expeditiously as possible.
Cooperation with committee
(4) The employer and any trade union or redundant employees who
appointed the members of a joint planning committee shall cooperate with
and assist the committee in developing an adjustment program.
1980-81-82-83, c. 89, s. 32.
Supplying of information
222. (1) The employer and any trade union or redundant employees who
appointed the members of a joint planning committee shall, on request of
any member of the committee, forthwith provide the committee with such
personal information relating to any redundant employee as the committee
may reasonably require for its work.
Inspector
(2) An inspector may
(a) monitor and, on request, assist in the establishment and operation
of a joint planning committee; and
(b) attend any sittings of a joint planning committee as an observer.
1980-81-82-83, c. 89, s. 32.
Application to Minister for arbitrator
223. (1) Where all members of a joint planning committee who are
representatives of the redundant employees agree to do so or where all
members of a joint planning committee who are representatives of the
employer agree to do so, those members may, after six weeks from the
date of the notice to the Minister under section 212, apply jointly to
the Minister for the appointment of an arbitrator if
(a) the committee has not then completed developing an adjustment
program; or
(b) the committee has completed developing an adjustment program, but
those members are not satisfied with the program or any part of the
program.
Form and contents of application
(2) An application under subsection (1) shall be in writing and signed
by the members making the application and shall set out the matters, if
any, in dispute respecting the adjustment program.
1980-81-82-83, c. 89, s. 32.
Appointment of arbitrator
224. (1) The Minister may, on application under subsection 223(1),
appoint an arbitrator to assist the joint planning committee in the
development of an adjustment program and to resolve any matters in
dispute respecting the adjustment program.
The Minister shall notify and send a statement of matters in dispute
(2) Where an arbitrator is appointed under subsection (1), the Minister
shall forthwith
(a) notify, in writing, the joint planning committee of the decision to
appoint an arbitrator and of the name of the arbitrator; and
(b) if the application under subsection 223(1) sets out matters in
dispute respecting an adjustment program, send to the arbitrator and to
the joint planning committee a statement setting out any matters in
dispute respecting the adjustment program that the arbitrator is to
resolve.
Restriction on matters included in statement
(3) A statement referred to in subsection (2) shall be restricted to
such of those matters set out in the application under subsection 223(1)
as the Minister deems appropriate and as are normally the subject-matter
of collective agreement in relation to termination of employment.
Duty of arbitrator
(4) An arbitrator shall assist the joint planning committee in the
development of an adjustment program and the arbitrator, if sent a
statement pursuant to subsection (2), shall, within four weeks after
receiving the statement or such longer period as the Minister may
specify,
(a) consider the matters set out in the statement;
(b) render a decision thereon; and
(c) send a copy of the decision with the reasons therefor to the joint
planning committee and to the Minister.
Restriction
(5) An arbitrator may not
(a) review the decision of the employer to terminate the employment of
the redundant employees; or
(b) delay the termination of employment of the redundant employees.
Powers of arbitrator
(6) In relation to any proceeding before an arbitrator under this
section, the arbitrator may
(a) determine the procedure to be followed;
(b) administer oaths and solemn affirmations;
(c) receive and accept such evidence and information on oath, affidavit
or otherwise as the arbitrator sees fit, whether or not the evidence is
admissible in a court of law;
(d) make such examination of documents containing personal information
relating to any redundant employee and such inquiries relating to any
redundant employee as the arbitrator deems necessary;
(e) require an employer to post and keep posted in appropriate places
any notice that the arbitrator considers necessary to bring to the
attention of any redundant employees any matter relating to the
proceeding; and
(f) authorize any person to do anything described in paragraph (b) or
(d) that the arbitrator may do and to report to the arbitrator thereon.
1980-81-82-83, c. 89, s. 32.
Applicable provisions
225. Sections 58 and 66 apply, with such modifications as the
circumstances require, in respect of a decision of an arbitrator under
section 224 as though it were a decision referred to in those sections.
1980-81-82-83, c. 89, s. 32.
Implementation of adjustment program
226. On completion of the development of an adjustment program, the
employer shall implement the program and the joint planning committee
and any trade union or redundant employees who appointed the members of
the committee shall cooperate with and assist the employer in
implementing the program.
1980-81-82-83, c. 89, s. 32.
Regulations
227. The Governor in Council may make regulations for carrying out the
purposes and provisions of this Division and, without restricting the
generality of the foregoing, may make regulations
(a) exempting employers from the application of this Division in respect
of the termination of employment of employees employed on a seasonal or
irregular basis;
(b) requiring employers employing employees in a particular occupational
classification, in a particular industry or in an industrial
establishment that is within an area or region described in the
regulations, to comply with the provisions of this Division in respect
of terminations of employment of groups of employees numbering less than
fifty but greater than a number prescribed in the regulations;
(c) prescribing information to be set out in a notice referred to in
subsection 212(1); and
(d) prescribing circumstances in which a lay-off of an employee shall
not be deemed to be a termination of his employment by his employer.
R.S., c. 17(2nd Supp.), s. 16.
Waiver of application of Division
228. On the submission of any person, the Minister may, by order and
subject to any terms or conditions specified in the order, waive the
application of this Division, or any provision thereof, in respect of
any industrial establishment or of any class of employees therein
specified in the order if it is shown to the satisfaction of the
Minister that the application of this Division, or any provision
thereof, as the case may be, in respect of any industrial establishment
(a) would be or is unduly prejudicial to the interests of the employees
therein or to any class of employees therein;
(b) would be or is unduly prejudicial to the interests of the employer
of those employees;
(c) would be or is seriously detrimental to the operation of the
industrial establishment; or
(d) is not necessary, because measures for the assistance of redundant
employees at that establishment that are substantially the same or to
the same effect as the measures established by this Division or that
provision, as the case may be, have been established by collective
agreement or otherwise.
R.S., c. 17(2nd Supp.), s. 16; 1980-81-82-83, c. 89, s. 33.
Application of sections 214 to 226
229. (1) Sections 214 to 226 do not apply in respect of any redundant
employees who are represented by a trade union if the trade union and
the employer are bound by a collective agreement containing
(a) provisions that
(i) specify procedures by which any matters relating to the termination
of employment in the industrial establishment at which those employees
are employed may be negotiated and finally settled, or
(ii) are intended to minimize the impact of termination of employment on
the employees represented by the trade union and to assist those
employees in obtaining other employment; and
(b) provisions that specify that those sections do not apply in respect
of the employees represented by the trade union.
Idem
(2) Sections 214 to 226 do not apply in respect of any redundant
employees who are represented by a trade union if the termination of the
employment of those employees is the result of technological change as
defined in subsection 51(1) and sections 52, 54 and 55 apply or would,
but for subsection 51(2), apply to the trade union and the employer.
1980-81-82-83, c. 89, s. 33.
DIVISION X
INDIVIDUAL TERMINATIONS OF
EMPLOYMENT
Notice or wages in lieu of notice
230. (1) Except where subsection (2) applies, an employer who terminates
the employment of an employee who has completed three consecutive months
of continuous employment by the employer shall, except where the
termination is by way of dismissal for just cause, give the employee
either
(a) notice in writing, at least two weeks before a date specified in the
notice, of the employer's intention to terminate his employment on that
date, or
(b) two weeks wages at his regular rate of wages for his regular hours
of work, in lieu of the notice.
Notice to trade union in certain circumstances
(2) Where an employer is bound by a collective agreement that contains a
provision authorizing an employee who is bound by the collective
agreement and whose position becomes redundant to displace another
employee on the basis of seniority, and the position of an employee who
is so authorized becomes redundant, the employer shall
(a) give at least two weeks notice in writing to the trade union that is
a party to the collective agreement and to the employee that the
position of the employee has become redundant and post a copy of the
notice in a conspicuous place within the industrial establishment in
which the employee is employed; or
(b) pay to any employee whose employment is terminated as a result of
the redundancy of the position two weeks wages at his regular rate of
wages.
Where employer deemed to terminate employment
(3) Except where otherwise prescribed by regulation, an employer shall,
for the purposes of this Division, be deemed to have terminated the
employment of an employee when the employer lays off that employee.
R.S., c. 17(2nd Supp.), s. 16.
Conditions of employment
231. Where notice is given by an employer pursuant to subsection 230(1),
the employer
(a) shall not thereafter reduce the rate of wages or alter any other
term or condition of employment of the employee to whom the notice was
given except with the written consent of the employee; and
(b) shall, between the time when the notice is given and the date
specified therein, pay to the employee his regular rate of wages for his
regular hours of work.
R.S., c. 17(2nd Supp.), s. 16.
Expiration of notice
232. Where an employee to whom notice is given by his employer pursuant
to subsection 230(1) continues to be employed by the employer for more
than two weeks after the date specified in the notice, his employment
shall not, except with the written consent of the employee, be
terminated except by way of dismissal for just cause unless the employer
again complies with subsection 230(1) in respect of the employee.
R.S., c. 17(2nd Supp.), s. 16.
Regulations
233. The Governor in Council may make regulations
(a) prescribing circumstances in which a lay-off of an employee shall
not be deemed to be a termination of his employment by his employer; and
(b) [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 11]
(c) defining for the purposes of this Division the absences from
employment that shall be deemed not to have interrupted continuity of
employment and the expression "regular hours of work".
R.S., 1985, c. L-2, s. 233; R.S., 1985, c. 9 (1st Supp.), s. 11.
Application of section 189
234. Section 189 applies for the purposes of this Division.
R.S., c. 17(2nd Supp.), s. 16.
DIVISION XI
SEVERANCE PAY
Minimum rate
235. (1) An employer who terminates the employment of an employee who
has completed twelve consecutive months of continuous employment by the
employer shall, except where the termination is by way of dismissal for
just cause, pay to the employee the greater of
(a) two days wages at the employee's regular rate of wages for his
regular hours of work in respect of each completed year of employment
that is within the term of the employee's continuous employment by the
employer, and
(b) five days wages at the employee's regular rate of wages for his
regular hours of work.
Circumstances deemed to be termination and deemed not to be termination
(2) For the purposes of this Division,
(a) except where otherwise provided by regulation, an employer shall be
deemed to have terminated the employment of an employee when the
employer lays off that employee; and
(b) an employer shall be deemed not to have terminated the employment of
an employee where, either immediately on ceasing to be employed by the
employer or before that time, the employee is entitled to a pension
under a pension plan contributed to by the employer that is registered
pursuant to the Pension Benefits Standards Act, 1985, to a pension under
the Old Age Security Act or to a retirement pension under the Canada
Pension Plan or the Quebec Pension Plan.
R.S., 1985, c. L-2, s. 235; R.S., 1985, c. 32 (2nd Supp.), s. 41.
Regulations
236. The Governor in Council may make regulations for the purposes of
this Division
(a) prescribing circumstances in which a lay-off of an employee shall
not be deemed to be a termination of the employee's employment by his
employer;
(b) [Repealed, R.S., 1985, c. 9 (1st Supp.), s. 12]
(c) establishing methods for determining whether severance benefits
provided to an employee under a plan established by an employer are
equivalent to any benefits required to be paid to the employee under
this Division; and
(d) defining the absences from employment that shall be deemed not to
have interrupted continuity of employment and the expression "regular
hours of work".
R.S., 1985, c. L-2, s. 236; R.S., 1985, c. 9 (1st Supp.), s. 12.
Application of section 189
237. Section 189 applies for the purposes of this Division.
R.S., c. 17(2nd Supp.), s. 16.
DIVISION XII
GARNISHMENT
Prohibition
238. No employer shall dismiss, suspend, lay off, demote or discipline
an employee on the ground that garnishment proceedings may be or have
been taken with respect to the employee.
R.S., 1985, c. L-2, s. 238; R.S., 1985, c. 9 (1st Supp.), s. 13.
DIVISION XIII
SICK LEAVE
Prohibition
239. (1) Subject to subsection (1.1), no employer shall dismiss,
suspend, lay off, demote or discipline an employee because of absence
due to illness or injury if
(a) the employee has completed three consecutive months of continuous
employment by the employer prior to the absence;
(b) the period of absence does not exceed twelve weeks; and
(c) the employee, if requested in writing by the employer within fifteen
days after his return to work, provides the employer with a certificate
of a qualified medical practitioner certifying that the employee was
incapable of working due to illness or injury for a specified period of
time, and that that period of time coincides with the absence of the
employee from work.
Exception
(1.1) An employer may assign to a different position, with different
terms and conditions of employment, any employee who, after an absence
due to illness or injury, is unable to perform the work performed by the
employee prior to the absence.
(2) [Repealed, 1993, c. 42, s. 32]
Benefits continue
(2.1) The pension, health and disability benefits and the seniority of
an employee who is absent from work due to illness or injury shall
accumulate during the entire period of the absence if the conditions set
out in subsection (1) are met in respect of that absence.
Contributions by employee
(2.2) Where contributions are required from an employee in order for the
employee to be entitled to a benefit referred to in subsection (2.1),
the employee is responsible for and must, within a reasonable time, pay
those contributions for the period of any absence due to illness or
injury unless, at the commencement of the absence or within a reasonable
time thereafter, the employee notifies the employer of the employee's
intention to discontinue contributions during that period.
Contributions by employer
(2.3) An employer who pays contributions in respect of a benefit
referred to in subsection (2.1) shall continue to pay those
contributions during an employee's absence due to illness or injury in
at least the same proportion as if the employee were not absent, unless
the employee does not pay the employee's contributions, if any, within
a reasonable time.
Failure to pay contributions
(3) For the purposes of calculating the pension, health and disability
benefits of an employee in respect of whom contributions have not been
paid as required by subsections (2.2) and (2.3), the benefits shall not
accumulate during the absence and employment on the employee's return to
work shall be deemed to be continuous with employment before the
employee's absence.
Deemed continuous employment
(3.1) For the purposes of calculating benefits, other than benefits
referred to in subsection (2.1), of an employee who is absent from work
due to illness or injury where the conditions set out in subsection (1)
are met in respect of that absence, employment on the employee's return
to work shall be deemed to be continuous with employment before the
employee's absence.
Regulations
(4) The Governor in Council may make regulations for the purposes of
this Division defining the absences from employment that shall be deemed
not to have interrupted continuity of employment.
Application of section 189
(5) Section 189 applies for the purposes of this Division.
R.S., 1985, c. L-2, s. 239; R.S., 1985, c. 9 (1st Supp.), s. 14, c. 43
(3rd Supp.), s. 2; 1993, c. 42, s. 32.
DIVISION XIII.1
WORK-RELATED ILLNESS AND INJURY
Prohibition
239.1 (1) Subject to subsection (4) and to the regulations made under
this Division, no employer shall dismiss, suspend, lay off, demote or
discipline an employee because of absence from work due to work-related
illness or injury.
Employer's obligation
(2) Every employer shall subscribe to a plan that provides an employee
who is absent from work due to work-related illness or injury with wage
replacement, payable at an equivalent rate to that provided for under
the applicable workers' compensation legislation in the employee's
province of permanent residence.
Return to work
(3) Subject to the regulations, the employer shall, where reasonably
practicable, return an employee to work after the employee's absence due
to work-related illness or injury.
Exception
(4) An employer may assign to a different position, with different terms
and conditions of employment, any employee who, after an absence due to
work-related illness or injury, is unable to perform the work performed
by the employee prior to the absence.
Benefits continue
(5) The pension, health and disability benefits and the seniority of an
employee who is absent from work due to work-related illness or injury
shall accumulate during the entire period of the absence.
Contributions by employee
(6) Where contributions are required from an employee in order for the
employee to be entitled to a benefit referred to in subsection (5), the
employee is responsible for and must, within a reasonable time, pay
those contributions for the period of any absence due to work-related
illness or injury unless, at the beginning of the absence or within a
reasonable time thereafter, the employee notifies the employer of the
employee's intention to discontinue contributions during that period.
Contributions by employer
(7) An employer who pays contributions in respect of a benefit referred
to in subsection (5) shall continue to pay those contributions during an
employee's absence due to work-related illness or injury in at least the
same proportion as if the employee were not absent, unless the employee
does not pay the employee's contributions, if any, within a reasonable
time.
Failure to pay contributions
(8) For the purposes of calculating the pension, health and disability
benefits of an employee in respect of whom contributions have not been
paid as required by subsections (6) and (7), the benefits shall not
accumulate during the absence, and employment on the employee's return
to work shall be deemed to be continuous with employment before the
employee's absence.
Deemed continuous employment
(9) For the purposes of calculating benefits, other than benefits
referred to in subsection (5), of an employee who is absent from work
due to work-related illness or injury, employment on the employee's
return to work shall be deemed to be continuous with employment before
the employee's absence.
Regulations
(10) The Governor in Council may make regulations for carrying out the
purposes of this Division and, without restricting the generality of the
foregoing, may make regulations
(a) for determining the duration of the employer's obligation under
subsection (3);
(b) providing terms and conditions applicable to the employer under
subsections (1) and (3) in the event of any termination of employment,
lay-off or discontinuance of a function in an industrial establishment;
and
(c) providing for any other terms and conditions respecting the
application of subsection (3).
Application of section 189
(11) Section 189 applies for the purposes of this Division.
1993, c. 42, s. 33.
DIVISION XIV
UNJUST DISMISSAL
Complaint to inspector for unjust dismissal
240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous employment
by an employer, and
(b) who is not a member of a group of employees subject to a collective
agreement,
may make a complaint in writing to an inspector if the employee has been
dismissed and considers the dismissal to be unjust.
Time for making complaint
(2) Subject to subsection (3), a complaint under subsection (1) shall be
made within ninety days from the date on which the person making the
complaint was dismissed.
Extension of time
(3) The Minister may extend the period of time referred to in subsection
(2) where the Minister is satisfied that a complaint was made in that
period to a government official who had no authority to deal with the
complaint but that the person making the complaint believed the official
had that authority.
R.S., 1985, c. L-2, s. 240; R.S., 1985, c. 9 (1st Supp.), s. 15.
Reasons for dismissal
241. (1) Where an employer dismisses a person described in subsection
240(1), the person who was dismissed or any inspector may make a request
in writing to the employer to provide a written statement giving the
reasons for the dismissal, and any employer who receives such a request
shall provide the person who made the request with such a statement
within fifteen days after the request is made.
Inspector to assist parties
(2) On receipt of a complaint made under subsection 240(1), an inspector
shall endeavour to assist the parties to the complaint to settle the
complaint or cause another inspector to do so.
Where complaint not settled within reasonable time
(3) Where a complaint is not settled under subsection (2) within such
period as the inspector endeavouring to assist the parties pursuant to
that subsection considers to be reasonable in the circumstances, the
inspector shall, on the written request of the person who made the
complaint that the complaint be referred to an adjudicator under
subsection 242(1),
(a) report to the Minister that the endeavour to assist the parties to
settle the complaint has not succeeded; and
(b) deliver to the Minister the complaint made under subsection 240(1),
any written statement giving the reasons for the dismissal provided
pursuant to subsection (1) and any other statements or documents the
inspector has that relate to the complaint.
1977-78, c. 27, s. 21.
Reference to adjudicator
242. (1) The Minister may, on receipt of a report pursuant to subsection
241(3), appoint any person that the Minister considers appropriate as an
adjudicator to hear and adjudicate on the complaint in respect of which
the report was made, and refer the complaint to the adjudicator along
with any statement provided pursuant to subsection 241(1).
Powers of adjudicator
(2) An adjudicator to whom a complaint has been referred under
subsection (1)
(a) shall consider the complaint within such time as the Governor in
Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full
opportunity to the parties to the complaint to present evidence and make
submissions to the adjudicator and shall consider the information
relating to the complaint; and
proceeding before the Board, under paragraphs 16(a), (b) and (c).
Decision of adjudicator
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has
been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint
was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party
to the complaint and to the Minister.
Limitation on complaints
(3.1) No complaint shall be considered by an adjudicator under
subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of
the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this
or any other Act of Parliament.
Where unjust dismissal
(4) Where an adjudicator decides pursuant to subsection (3) that a
person has been unjustly dismissed, the adjudicator may, by order,
require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that
is equivalent to the remuneration that would, but for the dismissal,
have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer
to do in order to remedy or counteract any consequence of the dismissal.
R.S., 1985, c. L-2, s. 242; R.S., 1985, c. 9 (1st Supp.), s. 16; 1998,
c. 26, s. 58.
Decisions not to be reviewed by court
243. (1) Every order of an adjudicator appointed under subsection 242(1)
is final and shall not be questioned or reviewed in any court.
No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any
court, whether by way of injunction, certiorari, prohibition, quo
warranto or otherwise, to question, review, prohibit or restrain an
adjudicator in any proceedings of the adjudicator under section 242.
1977-78, c. 27, s. 21.
Enforcement of orders
244. (1) Any person affected by an order of an adjudicator under
subsection 242(4), or the Minister on the request of any such person,
may, after fourteen days from the date on which the order is made, or
from the date provided in it for compliance, whichever is the later
date, file in the Federal Court a copy of the order, exclusive of the
reasons therefor.
Idem
(2) On filing in the Federal Court under subsection (1), an order of an
adjudicator shall be registered in the Court and, when registered, has
the same force and effect, and all proceedings may be taken thereon, as
if the order were a judgment obtained in that Court.
R.S., 1985, c. L-2, s. 244; 1993, c. 42, s. 34(F).
Regulations
245. The Governor in Council may make regulations for the purposes of
this Division defining the absences from employment that shall be deemed
not to have interrupted continuity of employment.
1980-81-82-83, c. 47, s. 27.
Civil remedy
246. (1) No civil remedy of an employee against his employer is
suspended or affected by sections 240 to 245.
Application of section 189
(2) Section 189 applies for the purposes of this Division.
1977-78, c. 27, s. 21.
DIVISION XV
PAYMENT OF WAGES
Payment of wages
247. Except as otherwise provided by or under this Part, an employer
shall
(a) pay to any employee any wages to which the employee is entitled on
the regular pay-day of the employee as established by the practice of
the employer; and
(b) pay any wages or other amounts to which the employee is entitled
under this Part within thirty days from the time when the entitlement to
the wages or other amounts arose.
1977-78, c. 27, s. 21.
DIVISION XV.1
SEXUAL HARASSMENT
Definition of "sexual harassment"
247.1 In this Division, "sexual harassment" means any conduct, comment,
gesture or contact of a sexual nature
(a) that is likely to cause offence or humiliation to any employee; or
(b) that might, on reasonable grounds, be perceived by that employee as
placing a condition of a sexual nature on employment or on any
opportunity for training or promotion.
R.S., 1985, c. 9 (1st Supp.), s. 17.
Right of employee
247.2 Every employee is entitled to employment free of sexual
harassment.
R.S., 1985, c. 9 (1st Supp.), s. 17.
Responsibility of employer
247.3 Every employer shall make every reasonable effort to ensure that
no employee is subjected to sexual harassment.
R.S., 1985, c. 9 (1st Supp.), s. 17.
Policy statement by employer
247.4 (1) Every employer shall, after consulting with the employees or
their representatives, if any, issue a policy statement concerning
sexual harassment.
Contents of policy statement
(2) The policy statement required by subsection (1) may contain any term
consistent with the tenor of this Division the employer considers
appropriate but must contain the following:
(a) a definition of sexual harassment that is substantially the same as
the definition in section 247.1;
(b) a statement to the effect that every employee is entitled to
employment free of sexual harassment;
(c) a statement to the effect that the employer will make every
reasonable effort to ensure that no employee is subjected to sexual
harassment;
(d) a statement to the effect that the employer will take such
disciplinary measures as the employer deems appropriate against any
person under the employer's direction who subjects any employee to
sexual harassment;
(e) a statement explaining how complaints of sexual harassment may be
brought to the attention of the employer;
(f) a statement to the effect that the employer will not disclose the
name of a complainant or the circumstances related to the complaint to
any person except where disclosure is necessary for the purposes of
investigating the complaint or taking disciplinary measures in relation
thereto; and
(g) a statement informing employees of the discriminatory practices
provisions of the Canadian Human Rights Act that pertain to rights of
persons to seek redress under that Act in respect of sexual harassment.
Publicity
(3) Every employer shall make each person under the employer's direction
aware of the policy statement required by subsection (1).
R.S., 1985, c. 9 (1st Supp.), s. 17.
DIVISION XVI
ADMINISTRATION AND GENERAL
Inquiries
Inquiries
248. (1) The Minister may,
(a) for any of the purposes of this Part, cause an inquiry to be made
into and concerning employment in any industrial establishment; and
(b) appoint one or more persons to hold the inquiry.
Powers on an inquiry
(2) A person appointed pursuant to subsection (1) has all of the powers
of a person appointed as a commissioner under Part I of the Inquiries
Act.
R.S., c. L-1, s. 62.
Inspections
Inspectors
249. (1) The Minister may designate any person as an inspector for the
purposes of this Part.
Powers of inspectors
(2) For the purposes of this Part and the regulations, an inspector may
(a) inspect and examine all books, payrolls and other records of an
employer that relate to the wages, hours of work or conditions of
employment affecting any employee;
(b) take extracts from or make copies of any entry in the books,
payrolls and other records mentioned in paragraph (a);
(c) require any employer to make or furnish full and correct statements,
either orally or in writing, in such form as may be required, respecting
the wages paid to all or any of his employees, and the hours of work and
conditions of their employment;
(d) require an employee to make full disclosure, production and delivery
to the inspector of all records, documents, statements, writings, books,
papers, extracts therefrom or copies thereof or of other information,
either orally or in writing, that are in the possession or under the
control of the employee and that in any way relate to the wages, hours
of work or conditions of his employment; and
(e) require any party to a complaint made under subsection 240(1) to
make or furnish full and correct statements, either orally or in
writing, in such form as may be required, respecting the circumstances
of the dismissal in respect of which the complaint was made.
Right to enter premises
(3) An inspector may, at any reasonable time, enter on any place used in
connection with a federal work, undertaking or business for the purpose
of making an inspection authorized under subsection (2), and may, for
that purpose, question any employee apart from his employer.
Assistance to inspectors
(4) The person in charge of any federal work, undertaking or business
and every person employed thereon or in connection with the operation
thereof shall give an inspector all reasonable assistance to enable the
inspector to carry out his duties and functions under this Part or the
regulations.
Certificate to be produced
(5) The Minister shall furnish every inspector with a certificate of his
designation as an inspector and on entering any place used in connection
with a federal work, undertaking or business an inspector shall, if so
required, produce the certificate to the person in charge of that place.
Assistance
(6) An inspector may, in carrying out the inspector's duties and
functions, be accompanied or assisted by such persons as the inspector
considers necessary.
Evidence in civil suits precluded
(7) No inspector, and no person who has accompanied or assisted the
inspector in carrying out the inspector's duties and functions, shall be
required to give testimony in any civil suit or civil proceedings, or in
any proceeding under section 242 with regard to information obtained in
carrying out those duties and functions or in accompanying or assisting
the inspector, except with the written permission of the Minister.
Inspector not liable
(8) An inspector is not personally liable for anything done or omitted
to be done by the inspector in good faith under the authority or
purported authority of this Part.
R.S., 1985, c. L-2, s. 249; 1993, c. 42, s. 35.
Administering oaths
250. An inspector may administer all oaths and take and receive all
affidavits and statutory declarations required with respect to the
powers of the inspector set out in subsection 249(2) and certify to the
administration, taking or receiving thereof.
R.S., c. L-1, s. 64.
Where underpayments found on inspection
251. (1) Where an inspector finds that an employer has failed to pay an
employee any wages or other amounts to which the employee is entitled
under this Part, the inspector may determine the difference between the
wages or other amounts actually paid to the employee under this Part and
the wages or other amounts to which the employee is entitled under this
Part.
Where amount of underpayment agreed to
(2) Where an inspector determines pursuant to subsection (1) that there
is a difference between the wages or other amounts actually paid to an
employee and the wages or other amounts to which the employee is
entitled and the amount of that difference is agreed to in writing by
the employee and his employer, the employer shall, within five days
after the date of the agreement, pay the amount
(a) to the employee on the direction of the inspector; or
(b) to the Minister.
Where amount paid to Minister
(3) Where an employer pays the amount under subsection (2) to the
Minister, the Minister shall, forthwith on receipt of the amount, pay it
over to the employee who, pursuant to subsection (2), is entitled to the
amount.
Minister's consent required for prosecution
(4) No prosecution for failure to pay an employee the wages or other
amounts to which the employee was entitled under this Part shall,
without the written consent of the Minister, be instituted against the
employer when the employer has made payment of any amount of difference
in wages or other amounts in accordance with subsection (2).
R.S., 1985, c. L-2, s. 251; 1993, c. 42, s. 36.
Recovery of Wages
Payment order
251.1 (1) Where an inspector finds that an employer has not paid an
employee wages or other amounts to which the employee is entitled under
this Part, the inspector may issue a written payment order to the
employer, or, subject to section 251.18, to a director of a corporation
referred to in that section, ordering the employer or director to pay
the amount in question, and the inspector shall send a copy of any such
payment order to the employee at the employee's latest known address.
Where complaint unfounded
(2) Where an inspector concludes that a complaint of non-payment of
wages or other amounts to which an employee is entitled under this Part
is unfounded, the inspector shall so notify the complainant in writing.
Service of documents
(3) Service of a payment order or a copy thereof pursuant to subsection
(1), or of a notice of unfounded complaint pursuant to subsection (2),
shall be by personal service or by registered or certified mail and, in
the case of registered or certified mail, the document shall be deemed
to have been received by the addressee on the seventh day after the day
on which it was mailed.
Proof of service of documents
(4) A certificate purporting to be signed by the Minister certifying
that a document referred to in subsection (3) was sent by registered or
certified mail to the person to whom it was addressed, accompanied by an
identifying post office certificate of the registration or certification
and a true copy of the document, is admissible in evidence and is proof
of the statements contained therein, without proof of the signature or
official character of the person appearing to have signed the
certificate.
1993, c. 42, s. 37.
Appeal
251.11 (1) A person who is affected by a payment order or a notice of
unfounded complaint may appeal the inspector's decision to the Minister,
in writing, within fifteen days after service of the order, the copy of
the order, or the notice.
Payment of amount
(2) An employer or a director of a corporation may not appeal from a
payment order unless the employer or director pays to the Minister the
amount indicated in the payment order, subject to, in the case of a
director, the maximum amount of the director's liability under section
251.18.
1993, c. 42, s. 37.
Appointment of referee
251.12 (1) On receipt of an appeal, the Minister shall appoint any
person that the Minister considers appropriate as a referee to hear and
adjudicate on the appeal, and shall provide that person with
(a) the payment order or the notice of unfounded complaint; and
(b) the document that the appellant has submitted to the Minister under
subsection 251.11(1).
Powers of referee
(2) A referee to whom an appeal has been referred by the Minister
(a) may 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 referee deems necessary to deciding the appeal;
(b) may administer oaths and solemn affirmations;
(c) may receive and accept such evidence and information on oath,
affidavit or otherwise as the referee sees fit, whether or not
admissible in a court of law;
(d) may determine the procedure to be followed, but shall give full
opportunity to the parties to the appeal to present evidence and make
submissions to the referee, and shall consider the information relating
to the appeal; and
referee's opinion, has substantially the same interest as one of the
parties and could be affected by the decision.
Time frame
(3) The referee shall consider an appeal and render a decision within
such time as the Governor in Council may, by regulation, prescribe.
Referee's decision
(4) The referee may make any order that is necessary to give effect to
the referee's decision and, without limiting the generality of the
foregoing, the referee may, by order,
(a) confirm, rescind or vary, in whole or in part, the payment order or
the notice of unfounded complaint;
(b) direct payment to any specified person of any money held in trust by
the Receiver General that relates to the appeal; and
(c) award costs in the proceedings.
Copies of decision to be sent
(5) The referee shall send a copy of the decision, and of the reasons
therefor, to each party to the appeal and to the Minister.
Order final
(6) The referee's order is final and shall not be questioned or reviewed
in any court.
No review by certiorari, etc.
(7) No order shall be made, process entered or proceeding taken in any
court, whether by way of injunction, certiorari, prohibition, quo
warranto or otherwise, to question, review, prohibit or restrain a
referee in any proceedings of the referee under this section.
1993, c. 42, s. 37.
Order to debtor of employer
251.13 (1) A regional director may issue a written order to a person who
is or is about to become indebted to an employer to whom a payment order
has been issued under subsection 251.1(1), to pay any amount owing to
the employer, up to the amount stated in the payment order, directly to
the Minister within fifteen days, in satisfaction of the payment order.
Banks, etc.
(2) For the purposes of this section, a bank or other financial
institution that has money on deposit to an employer's credit shall be
deemed to be indebted to that employer.
1993, c. 42, s. 37.
Deposit of moneys
251.14 (1) Where the Minister receives moneys pursuant to this Division,
the Minister shall deposit those moneys to the credit of the Receiver
General in the account known as the "Labour Standards Suspense Account"
or in any other special account created for the purposes of this
section, and may authorize payments out of that account to any employee
who is entitled to that money.
Record
(2) The Minister shall maintain a detailed record of all transactions
relating to the account.
1993, c. 42, s. 37.
Enforcement of orders
251.15 (1) Any person who is affected by a payment order issued under
subsection 251.1(1) or a referee's order made under subsection
251.12(4), or the Minister on the request of any such person, may, after
fifteen days after the day on which the order is made, or after the day
provided in the order for compliance, whichever is the later, file in
the Federal Court
(a) a copy of the payment order; or
(b) a copy of the referee's order, exclusive of the reasons therefor.
Idem
(2) After the expiration of the fifteen day period specified in an order
to a debtor of the employer made under subsection 251.13(1), the
regional director may file a copy of the order in the Federal Court.
Registration of orders
(3) On the filing of a copy of an order in the Federal Court under
subsection (1) or (2), the order shall be registered in the Court and,
when registered, has the same force and effect, and all proceedings may
be taken thereon, as if the order were a judgment obtained in that
Court.
1993, c. 42, s. 37.
Regulations
251.16 The Governor in Council may make regulations respecting the
operation of sections 251.1 to 251.15.
1993, c. 42, s. 37.
Statutory Instruments Act
251.17 The Statutory Instruments Act does not apply in respect of
payment orders, notices of unfounded complaint, and orders issued under
subsection 251.13(1).
1993, c. 42, s. 37.
Civil liability of directors
251.18 Directors of a corporation are jointly and severally liable for
wages and other amounts to which an employee is entitled under this
Part, to a maximum amount equivalent to six months' wages, to the extent
that
(a) the entitlement arose during the particular director's incumbency;
and
(b) recovery of the amount from the corporation is impossible or
unlikely.
1993, c. 42, s. 37.
Cooperatives
251.19 For the purposes of section 251.18 and subsection 257(3),
cooperatives shall be deemed to be corporations.
1993, c. 42, s. 37.
Information and Returns
Information and returns
252. (1) Every employer shall furnish such information relating to the
wages of his employees, their hours of work and their general holidays,
annual vacations and conditions of work, and make such returns thereon
from time to time as the Minister may require.
Records to be kept
(2) Every employer shall make and keep for a period of at least thirty-
six months after work is performed the records required to be kept by
regulations made pursuant to paragraph 264(a) and those records shall be
available at all reasonable times for examination by an inspector.
Exception
(3) Subsections (1) and (2) do not apply in respect of hours worked by
employees who are
(a) excluded from the application of Division I under subsection 167(2);
or
(b) exempt from the application of sections 169 and 171 pursuant to
regulations made under paragraph 175(1)(b).
R.S., 1985, c. L-2, s. 252; R.S., 1985, c. 9 (1st Supp.), s. 18; 1993,
c. 42, s. 38.
Notice to furnish information
253. (1) Where the Minister is authorized to require a person to furnish
information under this Part or the regulations, the Minister may require
the information to be furnished by a notice to that effect served
personally or sent by registered or certified mail addressed to the
latest known address of the person for whom the notice is intended, and
that person
(a) where the notice is sent by registered or certified mail, shall be
deemed to have received the notice on the seventh day after the day on
which it was mailed; and
(b) shall furnish the information within such reasonable time as is
specified in the notice.
Proof of service of notice
(2) A certificate purporting to be signed by the Minister certifying
that a notice was sent by registered or certified mail to the person to
whom it was addressed, accompanied by an identifying post office
certificate of the registration or certification and a true copy of the
notice, is admissible in evidence and is proof of the statements
contained therein without proof of the signature or official character
of the person appearing to have signed the certificate.
Proof of failure to comply
(3) Where the Minister is authorized to require a person to furnish
information under this Part or the regulations, a certificate of the
Minister certifying that the information has not been furnished is
admissible in evidence and in the absence of any evidence to the
contrary is proof of the statements contained therein.
Proof of documents
(4) A certificate of the Minister certifying that a document annexed
thereto is a document or a true copy of the document made by or on
behalf of the Minister shall be admitted in evidence and has the same
force and effect as if it had been proven in the ordinary way.
Proof of authority
(5) A certificate under this section signed or purporting to be signed
by the Minister is admissible in evidence without proof of the
Minister's appointment or signature.
R.S., 1985, c. L-2, s. 253; 1993, c. 42, s. 39.
Pay statement
254. (1) An employer shall, at the time of making any payment of wages
to an employee, furnish the employee with a statement in writing setting
out
(a) the period for which the payment is made;
(b) the number of hours for which the payment is made;
(c) the rate of wages;
(d) details of the deductions made from the wages; and
(e) the actual sum being received by the employee.
Exemption
(2) The Minister may, by order, exempt any employer from any or all of
the requirements of subsection (1).
R.S., c. L-1, s. 68.
Deductions
General rule
254.1 (1) No employer shall make deductions from wages or other amounts
due to an employee, except as permitted by or under this section.
Permitted deductions
(2) The permitted deductions are
(a) those required by a federal or provincial Act or regulations made
thereunder;
(b) those authorized by a court order or a collective agreement or other
document signed by a trade union on behalf of the employee;
(c) amounts authorized in writing by the employee;
(d) overpayments of wages by the employer; and
(e) other amounts prescribed by regulation.
Damage or loss
(3) Notwithstanding paragraph (2)(c), no employer shall, pursuant to
that paragraph, make a deduction in respect of damage to property, or
loss of money or property, if any person other than the employee had
access to the property or money in question.
Regulations
(4) The Governor in Council may make regulations prescribing:
(a) deductions that an employer is permitted to make in addition to
those permitted by this section; and
(b) the manner in which the deductions permitted by this section may be
made by the employer.
1993, c. 42, s. 40.
Combining Federal Works, Undertakings and Businesses
Orders of Minister combining federal works, undertakings and businesses
255. (1) Where associated or related federal works, undertakings and
businesses are operated by two or more employers having common control
or direction, the Minister may, after affording to the employers a
reasonable opportunity to make representations, by order, declare that
for all purposes of this Part the employers and the federal works,
undertakings and businesses operated by them that are specified in the
order are, respectively, a single employer and a single federal work,
undertaking or business.
Idem
(2) Where an order is made under subsection (1), the employers to which
it applies are jointly and severally liable to the employees employed in
the federal works, undertakings and businesses to which the order
applies for overtime pay, vacation pay, holiday pay and other wages or
amounts to which the employees are entitled under this Part.
R.S., c. 17(2nd Supp.), s. 17; 1977-78, c. 27, s. 25.
Offences and Punishment
Offences and punishment
256. (1) Every person who
(a) contravenes any provision of this Part or the regulations, other
than a provision of Division IX, subsection 252(2) or any regulation
made pursuant to section 227 or paragraph 264(a),
(b) contravenes any order made under this Part or the regulations, or
(c) discharges, threatens to discharge or otherwise discriminates
against a person because that person
(i) has testified or is about to testify in any proceedings or inquiry
taken or had under this Part, or
(ii) has given any information to the Minister or an inspector regarding
the wages, hours of work, annual vacation or conditions of work of an
employee,
is guilty of an offence and liable on summary conviction to a fine not
exceeding five thousand dollars.
Idem
(2) Every employer who contravenes any provision of Division IX or any
regulation made pursuant to section 227 is guilty of
(a) an offence punishable on summary conviction and liable to a fine not
exceeding ten thousand dollars; or
(b) an indictable offence and liable to a fine not exceeding one hundred
thousand dollars.
Idem
(3) Every employer who
(a) refuses or fails to keep any record that by subsection 252(2) or any
regulation made under paragraph 264(a) the employer is required to keep,
or
(b) refuses to make available for examination by an inspector at any
reasonable time any such record kept by the employer,
is guilty of an offence and liable on summary conviction to a fine not
exceeding one hundred dollars for each day during which any such refusal
or failure continues.
R.S., 1985, c. L-2, s. 256; R.S., 1985, c. 9 (1st Supp.), s. 19.
Procedure
257. (1) A complaint or information under this Part may relate to one or
more offences by one employer in respect of one or more of his
employees.
Limitation period
(2) Proceedings in respect of an offence under this Part may be
instituted at any time within but not later than three years after the
time when the subject-matter of the proceedings arose.
Minister's consent required
(3) No proceeding against a director of a corporation in respect of an
offence under this Part shall be instituted except with the consent of
the Minister.
R.S., 1985, c. L-2, s. 257; 1993, c. 42, s. 41.
Order to pay arrears of wages
258. (1) Where an employer has been convicted of an offence under this
Part in respect of any employee, the convicting court shall, in addition
to any other punishment, order the employer to pay to the employee any
overtime pay, vacation pay, holiday pay or other wages or amounts to
which the employee is entitled under this Part the non-payment or
insufficient payment of which constituted the offence for which the
employer was convicted.
Reinstatement of pay and position
(2) Where an employer has been convicted of an offence under this Part
in respect of the discharge of an employee, the convicting court may, in
addition to any other punishment, order the employer
(a) to pay compensation for loss of employment to the employee not
exceeding such sum as in the opinion of the court is equivalent to the
wages that would have accrued to the employee up to the date of
conviction but for such discharge; and
(b) to reinstate the employee in his employ at such date as in the
opinion of the court is just and proper in the circumstances and in the
position that the employee would have held but for such discharge.
When inaccurate records kept
(3) In determining the amount of wages or overtime for the purposes of
subsection (1), if the convicting court finds that the employer has not
kept accurate records as required by this Part or the regulations, the
employee affected shall be conclusively presumed to have been employed
for the maximum number of hours a week allowed under this Part and to be
entitled to the full weekly wage therefor.
R.S., c. L-1, s. 71; 1977-78, c. 27, s. 27.
Refusal to comply with order
259. An employer who refuses or fails to comply with an order of a
convicting court made under section 258 is guilty of an offence
punishable on summary conviction and liable to a fine not exceeding one
hundred dollars for each day during which such refusal or failure
continues.
R.S., 1985, c. L-2, s. 259; R.S., 1985, c. 9 (1st Supp.), s. 20.
Imprisonment precluded in certain cases
259.1 (1) Where a person is convicted of an offence under this Part
punishable on summary conviction, no imprisonment may be imposed as
punishment for the offence or in default of payment of any fine imposed
as punishment.
Recovery of penalties
(2) Where a person is convicted of an offence under this Part and the
fine that is imposed is not paid when required, the prosecutor may, by
filing the conviction, enter as a judgment the amount of the fine and
costs, if any, in a superior court of the province in which the trial
was held, and the judgment is enforceable against the person in the same
manner as if it were a judgment rendered against the person in that
court in civil proceedings.
R.S., 1985, c. 9 (1st Supp.), s. 20.
Identity of complainants
260. Where a person who makes a complaint to the Minister requests that
his name and identity be withheld, his name and identity shall not be
disclosed by the Minister or his officials except where disclosure is
necessary for the purposes of a prosecution or is considered by the
Minister to be in the public interest.
R.S., c. L-1, s. 72.
Civil remedy
261. No civil remedy of an employee against his employer for arrears of
wages is suspended or affected by this Part.
R.S., c. L-1, s. 73.
Ministerial Orders
Orders
262. Where by this Part or the regulations the Minister is authorized to
make any order in respect of any matter, the order may be made to apply
generally or in particular cases or to apply to classes of employees or
industrial establishments.
R.S., c. L-1, s. 74.
263. [Repealed, 1996, c. 11, s. 68]
Regulations
Regulations
264. The Governor in Council may make regulations for carrying out the
purposes of this Part and, without restricting the generality of the
foregoing, may make regulations
(a) requiring employers to keep records of wages, vacations, holidays
and overtime of employees and of other particulars relevant to the
purposes of this Part or any Division thereof;
(b) designating any branch, section or other division of any federal
work, undertaking or business as an industrial establishment for the
purposes of this Part or any Division thereof;
(c) governing the production and inspection of records required to be
kept by employers;
(d) for calculating and determining wages received by an employee in
respect of his employment, including the monetary value of remuneration
other than money and, for the purposes of any provision or provisions of
this Part specified in the regulations, the regular rate of wages of
employees;
(e) for calculating and determining the regular rate of wages, on an
hourly basis, of employees who are paid on any basis of time other than
hourly or who are not paid solely on a basis of time;
(e.1) respecting the calculation and payment of the wages and other
amounts to which an employee whose wages are paid on a commission basis,
on a salary plus commission basis or on any other basis other than time
is entitled to pursuant to Divisions V, VIII, X and XI;
(f) prescribing the maximum number of hours that may elapse between the
commencement and termination of the working day of any employee;
(g) fixing the minimum period that an employer may allow his employee
for meals, and the maximum period for which an employer may require or
permit an employee to work or be at his disposal without a meal period
intervening;
(h) requiring an employer in any industrial establishment to notify
employees, by the publication of such notices, in such manner as may be
prescribed, of
(i) the provisions of this Part or any regulation or order made under
this Part,
(ii) the particulars of hours of work, including the hours at which
shifts change,
(iii) the particulars of rest periods and meal periods, and
(iv) other matters related to hours and conditions of work of employees;
(i) providing for the payment of any wages of an employee to the
Minister or to another person in the event that the employee cannot be
found or in any other case;
(j) providing for the establishment of consultative or advisory
committees to advise the Minister on any matters arising in relation to
the administration of this Part; and
(k) for any other matter or purpose that under this Part is required or
permitted to be prescribed by regulation.
R.S., 1985, c. L-2, s. 264; R.S., 1985, c. 9 (1st Supp.), s. 21.
Application of Provincial Laws
Provincial Crown corporations
265. The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Atomic Energy Control Act.
1996, c. 12, s. 4.
Exclusion from application
266. (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Atomic Energy
Control Act.
Regulations
(2) On the recommendation of the Minister, the Governor in Council may
make regulations relating to labour standards in relation to employment
that is subject to a regulation made pursuant to subsection (1).
1996, c. 12, s. 4.
Application of certain provisions
267. Subsections 121.2(3) to (8) apply, with such modifications as the
circumstances require, in respect of a regulation made pursuant to
subsection 266(2) except that the references to "subsection (2)" in
subsections 121.2(3) to (6) shall be read as references to subsection
266(2).
1996, c. 12, s. 4.
RELATED PROVISIONS
- R.S., 1985, c. 26 (4th Supp.), s. 6:
Confirmation of exemptions and approvals
"6. Any exemption or approval that purports to have been given, before
the day sections 1 and 3 of this Act come into force, under the
authority of regulations made pursuant to Part II of the Canada Labour
Code and that could be given by the Coal Mining Safety Commission after
that day under the authority of section 137.2 of that Act shall have the
same effect as if it had been given by the Commission and that section
were in force when it was given."
- 1991, c. 39, s. 4:
Transitional provision
4. Agents appointed under section 34 of the Canada Labour Code, as that
section read immediately before the coming into force of this Act, shall
be deemed to be employer representatives appointed under that section as
amended by section 1 of this Act.
- 1993, c. 38, ss. 132, 133:
Agent of Her Majesty in right of Manitoba
132. Where a day is fixed for the coming into force of section 3, 88, 89
or 90, that section does not apply in relation to any Canadian carrier
that is an agent of Her Majesty in right of the Province of Manitoba
until December 31, 1993, or such earlier day as is fixed by the Governor
in Council at the written request of the Government of Manitoba.
Agent of Her Majesty in right of Saskatchewan
133. Where a day is fixed for the coming into force of section 3, 88, 89
or 90, that section does not apply in relation to any Canadian carrier
that is an agent of Her Majesty in right of the Province of Saskatchewan
until a day to be fixed for that purpose by the Governor in Council on
the expiration of five years after that section comes into force, or
such earlier day as is fixed by the Governor in Council at the written
request of the Government of Saskatchewan.
- 1993, c. 42, s. 15(2):
Transitional
(2) Permits referred to in section 170 of the said Act, as that section
read immediately before the coming into force of this section, remain in
effect until the earliest of
(a) the expiration of three years after the coming into force of this
section,
(b) the expiration of the period, if any, specified in the permit, and
(c) the day on which a work schedule established pursuant to section 170
of the said Act, as enacted by this section, takes effect.
- 1993, c. 42, s. 16(2):
Transitional
(2) Authorizations referred to in section 172 of the said Act, as that
section read immediately before the coming into force of this section,
remain in effect until the earliest of
(a) the expiration of three years after the coming into force of this
section,
(b) the expiration of the period, if any, specified in the
authorization, and
(c) the day on which a work schedule established pursuant to section 172
of the said Act, as enacted by this section, takes effect.
- 1993, c. 42, s. 19(2):
Transitional
(2) Approvals given by the Minister referred to in paragraph (b) of the
definition "year of employment" in section 183 of the said Act, as that
paragraph read immediately before the coming into force of this section,
remain in effect until the earliest of
(a) the expiration of three years after the coming into force of this
section,
(b) the expiration of the period, if any, specified in the approval, and
(c) the day on which a determination of another year of employment by
the employer referred to in paragraph (b) of the definition "year of
employment" in section 183 of the said Act, as enacted by this section,
takes effect.
- 1993, c. 42, s. 21(2):
Transitional
(2) Approvals of substitutions given by the Minister under paragraph
195(b) of the said Act, as that paragraph read immediately before the
coming into force of this section, remain in effect until the earliest
of
(a) the expiration of three years after the coming into force of this
section,
(b) the expiration of the period, if any, specified in the approval, and
(c) the day on which a substitution of any other holiday for a general
holiday pursuant to section 195 of the said Act, as enacted by this
section, takes effect.
- 1998, c. 26, ss. 86 to 96:
Definitions
86. The following definitions apply in this section and sections 87 to
94.
"Chairperson" ® pr‚sident ¯
"Chairperson" means the Chairperson of the new Board appointed under
subsection 10(1) of the new Act.
"commencement day" ® date de r‚f‚rence ¯
"commencement day" means the day on which this section and sections 87
to 94 come into force.
"former Act" ® ancienne loi ¯
"former Act" means the Canada Labour Code as it read immediately before
the commencement day.
"former Board" ® ancien Conseil ¯
"former Board" means the Canada Labour Relations Board continued by
section 9 of the former Act.
"new Act" ® nouvelle loi ¯
"new Act" means the Canada Labour Code as amended by this Act.
"new Board" ® nouveau Conseil ¯
"new Board" means the Canada Industrial Relations Board established by
section 9 of the new Act.
Members cease to hold office
87. The members of the former Board cease to hold office on the
commencement day.
Transfer of proceedings
88. (1) Subject to subsection (2), any proceeding that the former Board
was seized of on the day immediately preceding the commencement day
shall be transferred to and disposed of by the new Board in accordance
with the new Act.
Continuing jurisdiction of members
(2) Any member of the former Board may, at the request of the
Chairperson, continue to hear, consider or decide any matter that was
before the member before the commencement day and in respect of which
there was any proceeding in which they participated as a member.
Refusal to complete duties
(3) Where a member of a panel refuses to continue to hear, consider or
decide any matter referred to in subsection (1), the chairperson of the
panel may continue to hear, consider or decide the matter or the
Chairperson may remove that matter from the panel and hear, consider or
decide that matter or assign a Vice-Chairperson or a panel of the new
Board to do so on any terms and conditions that the Chairperson may
specify for the protection and preservation of the rights and interests
of the parties.
Powers
(4) For the purposes of subsection (2), the members of the former Board
shall exercise the powers of the new Board.
Supervision by Chairperson
(5) The Chairperson of the new Board has supervision over and direction
of the work of members of the former Board who exercise powers under
subsection (4).
Fees
89. (1) Each member of the former Board who continues to hear, consider
or decide any matter under subsection 88(2), shall be paid any fees for
that member's services that may be fixed by the Governor in Council.
Travel and living expenses
(2) Each member of the former Board who exercises powers under
subsection 88(4) is entitled to be paid reasonable travel and living
expenses incurred by the member in the course of the member's duties
under this Act while absent from the member's ordinary place of
residence.
Limitation period
90. The Chairperson may withdraw from the members of the former Board
any matter referred to in subsection 88(2) that is not disposed of
within one year after the commencement day and determine the matter or
assign it to a Vice-Chairperson or a panel of the new Board on such
terms and conditions as the Chairperson may specify for the protection
and preservation of the rights and interests of the parties.
Decisions continued
91. Any decision, including any order, determination or declaration,
made by the former Board is deemed to have been made by the new Board.
Staff
92. (1) Nothing in this Act shall be construed as affecting the status
of an employee who, immediately before the coming into force of this
section, occupied a position in the former Board except that the
employee shall, on the coming into force of this section, occupy their
position in the new Board under the authority of the Chairperson.
Definition of "employee"
(2) In this section, "employee" has the same meaning as in subsection
2(1) of the Public Service Employment Act.
Rights and obligations transferred
93. (1) All rights and property held by or in the name of or in trust
for the former Board and all obligations and liabilities of the former
Board are deemed to be rights, property, obligations and liabilities of
the new Board.
References
(2) Every reference to the former Board in a deed, contract or other
document executed by the former Board in its own name shall, unless the
context otherwise requires, be read as a reference to the new Board.
Transfer of appropriations
(3) Any amount appropriated for the fiscal year that includes the
commencement day, by an appropriation Act based on the Estimates for
that year for defraying the charges and expenses of the public service
of Canada for the former Board and that, on the commencement day, is
unexpended is deemed, on that day, to be an amount appropriated for
defraying the charges and expenses of the new Board.
Continuation of legal proceedings
94. Any action, suit or other proceeding to which the former Board is
party pending in any court on the commencement day may be continued by
or against the new Board in the like manner and to the same extent as it
could have been continued by or against the former Board.
When certain provisions apply
95. Subsections 71(1) and (2), 72(3) and 73(2), sections 74 to 79,
subsection 82(1), sections 86, 87.1, 87.2 and 87.3 and paragraphs
89(1)(d) and (f) of the Canada Labour Code, as enacted by this Act,
apply only with respect to disputes that arise in cases where notice to
bargain collectively was given after the coming into force of the
provision.
Application of paragraph 94(3)(d.2) of the Canada Labour Code
96. Paragraph 94(3)(d.2) of the Canada Labour Code, as enacted by
subsection 42(3) of this Act, applies only to strikes and lockouts that
occur after the coming into force of that paragraph.
AMENDMENTS NOT IN FORCE
- 1997, c. 9, s. 106:
R.S., c. 9 (1st Supp.), s. 3
106. Section 123.1 of the Act is replaced by the following:
Exclusion from application
123.1 The Governor in Council may, by order, exclude, in whole or in
part, from the application of this Part or any specified provision of
this Part employment on or in connection with any work or undertaking
that is regulated pursuant to the Nuclear Safety and Control Act.
- 1997, c. 9, paras. 125(1)(a) to (f):
Bill C-3
125. (1) If Bill C-3, introduced in the second session of the thirty-
fifth Parliament and entitled An Act to amend the Canada Labour Code
(nuclear undertakings) and to make a related amendment to another Act,
is assented to, then, on the later of the coming into force of that Act
and the coming into force of this Act:
(a) section 121.1 of the Canada Labour Code is replaced by the
following:
Provincial Crown corporations
121.1 The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Nuclear Safety and Control Act.
(b) subsection 121.2(1) of the Canada Labour Code is replaced by the
following:
Exclusion from application
121.2 (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Nuclear Safety and
Control Act.
(c) section 158 of the Canada Labour Code is replaced by the following:
Provincial Crown corporations
158. The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Nuclear Safety and Control Act.
(d) subsections 159(1) and (2) of the Canada Labour Code are replaced by
the following:
Exclusion from application
159. (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Nuclear Safety and
Control Act.
Regulations
(2) On the recommendation of the Minister after consultation with the
Canadian Nuclear Safety Commission, the Governor in Council may make
regulations relating to occupational safety and health in relation to
employment that is subject to a regulation made pursuant to subsection
(1).
(e) section 265 of the Canada Labour Code is replaced by the following:
Provincial Crown corporations
265. The Governor in Council may by regulation direct that this Part
applies in respect of any employment, or any class or classes of
employment, on or in connection with a work or undertaking set out in
the regulation that is, or is part of, a corporation that is an agent of
Her Majesty in right of a province and whose activities are regulated,
in whole or in part, pursuant to the Nuclear Safety and Control Act.
(f) subsection 266(1) of the Canada Labour Code is replaced by the
following:
Exclusion from application
266. (1) The Governor in Council may by regulation exclude, in whole or
in part, from the application of any of the provisions of this Part any
employment, or any class or classes of employment, on or in connection
with a work or undertaking set out in the regulation whose activities
are regulated, in whole or in part, pursuant to the Nuclear Safety and
Control Act.
- 1997, c. 9, s. 125(2):
Bill C-3
(2) If Bill C-3, introduced in the second session of the thirty-fifth
Parliament and entitled An Act to amend the Canada Labour Code (nuclear
undertakings) and to make a related amendment to another Act, is
assented to, and that Act comes into force before this Act, then section
106 of this Act is repealed.
[end]