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

Revocation of Certification and Related Matters

Marginal note:Application for revocation of certification

• 38 (1) If 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.

• Marginal note: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.

• Marginal note:Application for order that bargaining agent not entitled to represent bargaining unit

  (3) If 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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Order revoking certification or declaring bargaining agent not entitled to represent bargaining unit

• 39 (1) If, 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 any inquiry by way of a representation vote or otherwise that 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.

• Marginal note:Limitation

  (2) If no collective agreement applicable to a bargaining unit is in force, an order shall not be made under 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.

Marginal note: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.

• Marginal note: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.

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Successor Rights and Obligations

Marginal note: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.

• Marginal note: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.

• Marginal note: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.

Marginal note:Definitions

• 44 (1) In this section and sections 45 to 47.1,

  business

  business means any federal work, undertaking or business and any part thereof; (entreprise)

  provincial business

  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; (entreprise provinciale)

  sell

  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. (vente)

• Marginal note: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.

• Marginal note: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.

Marginal note: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.

Marginal note: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.

Marginal note:Where portion as federal business

• 47 (1) Where the name of any portion of the federal public administration specified from time to time in Schedule I, IV or V to the Financial Administration Act is deleted and that portion of the federal public administration is established as or becomes a part of a corporation or business to which this Part applies, or where a portion of the federal public administration included in another portion of the federal public administration specified in those Schedules 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 federal public administration and that is in force at the time the portion of the federal public administration 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 Federal Public Sector Labour Relations Act applies in all respects to the interpretation and application of the collective agreement or arbitral award.

• Marginal note: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.

• Marginal note:Application for order

  (3) Where the employees in a portion of the federal public administration 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 federal public administration 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).

• Marginal note: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.

• Marginal note: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.

• Marginal note: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 federal public administration 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.

• Marginal note: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.

• Marginal note: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.