Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Determination without oral hearing

16.1 The Board may decide any matter before it without holding an oral hearing.

Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Application of orders

19 Where the Board may make any decision or issue any order, prescribe any term or condition or do any other thing in relation to any person or organization, the Board may do so generally or in any particular case or class of cases.

Marginal note: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 Act.

Marginal note: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.

• Marginal note:Decision final

  (2) A decision referred to in subsection (1) is, except as stipulated by the Board, final.

• Marginal note:Definition of decision

  (3) In this section, decision includes an order, a direction, a determination and a declaration.

Marginal note:Exercise of powers, duties and functions

21 The Board shall exercise the powers and perform the duties and functions that are conferred or imposed on it by this Act, or that may be incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with the provisions of this Act, with any regulation made under this Act or with any decision made in respect of a matter before the Board.

Review and Enforcement of Orders

Marginal note:Order and decision final

• 22 (1) Subject to this Part, every order or decision made by the Board under this Part is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

• Marginal note: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.

• Marginal note: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.

Marginal note:Filing 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 made under this Part, file a copy of the order or decision, exclusive of reasons, 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.

• Marginal note: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.

• Marginal note: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 Courts 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.

Marginal note:Filing 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 made under this Part, file a copy of the order or decision, exclusive of reasons, in the superior court of a province. Section 23 applies, with any modifications that the circumstances require, to an order or decision filed in such a superior court.

DIVISION IIIAcquisition and Termination of Bargaining Rights

Application for Certification

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

Determination of Bargaining Units

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note: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.

• Marginal note:Supervisory employees

  (5) Where a trade union applies for certification as the bargaining agent for a unit comprised of or including employees whose duties include the supervision of other employees, the Board may, subject to subsection (2), determine that the unit proposed in the application is appropriate for collective bargaining.

• Marginal note:Private constables

  (6) The Board shall not include a private constable in a unit with other employees.