Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2)

Determination of Appropriate Bargaining Units

Marginal note:Determination of unit

• 57 (1) When an application for certification is made under section 54, the Board must determine the group of employees that constitutes a unit appropriate for collective bargaining.

• Marginal note:Consideration of employer’s classification

  (2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (3) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

• Marginal note:Composition of bargaining unit

  (4) For the purposes of this Part, a unit of employees may be determined by the Board to constitute a unit appropriate for collective bargaining whether or not its composition is identical with the group of employees in respect of which the application for certification was made.

Marginal note:Determination of questions of membership in bargaining units

58 On application by the employer or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining, or is included in any other unit.

Managerial or Confidential Positions

Marginal note:Application

• 59 (1) After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that

  • (a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, or a deputy head;

  • (b) the position is classified by the employer as being in the executive group, by whatever name called;

  • (c) the occupant of the position provides advice on labour relations, staffing or classification;

  • (d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;

  • (e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2 or Division 2 of Part 2.1;

  • (f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;

  • (g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person’s duties and responsibilities to the employer; or

  • (h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).

• Marginal note:Content of application

  (2) The application must set out every position that the employer considers to be a position referred to in any of paragraphs (1)(a) to (h).

Marginal note:Copy to employee organization

60 The employer must provide the employee organization seeking to be certified with a copy of the application.

Marginal note:Objection

61 If the employee organization considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Marginal note:Decision on objection

• 62 (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the employee organization an opportunity to make representations, determine whether the position is a position referred to in any of paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

• Marginal note:Burden of proof on employee organization

  (2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the employee organization.

• Marginal note:Burden of proof on employer

  (3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

Marginal note:When no objection filed

63 If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.

Certification

Marginal note:Conditions for certification

• 64 (1) After having determined the unit appropriate for collective bargaining, the Board must certify the applicant employee organization as the bargaining agent for the bargaining unit if the Board is satisfied

  • (a) that a majority of employees in that bargaining unit wish the applicant employee organization to represent them as their bargaining agent;

  • (b) that the persons representing the employee organization in the making of the application have been duly authorized to make the application; and

  • (c) if the applicant is a council of employee organizations, that each of the employee organizations forming the council has vested appropriate authority in the council to enable it to discharge the duties and responsibilities of a bargaining agent.

• (1.1) [Repealed, 2017, c. 12, s. 8]

• Marginal note:Where previous application denied within six months

  (2) If an application for certification of an employee organization as the bargaining agent for a proposed bargaining unit has been denied by the Board, the Board may not consider a new application for certification from that employee organization in respect of the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the employee organization was last denied certification, unless the Board is satisfied that the previous application was denied by reason only of a technical error or omission made in connection with the application.

• Marginal note:Membership in council of employee organizations

  (3) For the purpose of paragraph (1)(a), membership in any employee organization that forms part of a council of employee organizations is deemed to be membership in the council.

Marginal note:Representation vote

• 65 (1) The Board may order that a representation vote be taken among the employees in the bargaining unit for the purpose of satisfying itself that a majority of them wish the applicant employee organization to represent them as their bargaining agent.

• Marginal note:Arrangements for vote

  (2) When the Board orders that a representation vote be taken, it must

  • (a) determine the employees who are eligible to vote; and

  • (b) make any arrangements and give any directions that it considers necessary for the proper conduct of the vote, including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.

Where Certification Prohibited

Marginal note:Employer participation

• 66 (1) The Board may not certify an employee organization as a bargaining agent if it is of the opinion that the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit for which it is proposed to be certified.

• Marginal note:Discrimination

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

Effect of Certification

Marginal note:Effect of certification

67 Certification of an employee organization as the bargaining agent for a bargaining unit has the following effects:

• (a) the employee organization has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

• (b) the certification of any employee organization 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 employee organization is substituted as a party to any collective agreement or arbitral award that affects any employees in the bargaining unit, to the extent that the agreement or award relates to those employees, in the place of the bargaining agent named in the collective agreement or its successor;

• (d) the employee organization is deemed to be the bargaining agent for the purposes of section 107; and

• (e) the employee organization is substituted as a party to any essential services agreement that is in force, in the place of the bargaining agent named in the agreement or its successor.

Marginal note:Termination of existing collective agreement or arbitral award

68 An employee organization that is certified as the bargaining agent for a bargaining unit may, despite anything contained in any collective agreement or arbitral award that is binding on any employees in the bargaining unit on the day of certification, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, on two months’ notice to the employer given within one month from the day of certification.

Marginal note:Rights of previous or new bargaining agent

69 Any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of paragraph 67(b) or (c) or section 68 must, on application by the employer or the previous or new bargaining agent, be determined by the Board.

Changes to Certification

Review of Bargaining Units

Marginal note:Review of structure of bargaining units

• 70 (1) If the Board reviews the structure of one or more bargaining units, it must, in determining whether a group of employees constitutes a unit appropriate for collective bargaining, have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

• Marginal note:Limitation

  (3) Despite subsection (1), the Board is not permitted to review the structure of the bargaining unit determined under section 238.14.

Managerial or Confidential Positions

Marginal note:Application

• 71 (1) The employer may apply to the Board for an order declaring that any position of an employee in a bargaining unit for which a bargaining agent has been certified by the Board is a managerial or confidential position on the grounds that the position is a position referred to in any of paragraphs 59(1)(a) to (h).

• Marginal note:Content of application

  (2) The application must set out every position the employer considers to be a position referred to in any of paragraphs 59(1)(a) to (h).

Marginal note:Copy to bargaining agent

72 The employer must provide the bargaining agent with a copy of the application.

Marginal note:Objection

73 If the bargaining agent considers that a particular position in the employer’s application is not a position referred to in any of paragraphs 59(1)(a) to (h), it may file an objection in respect of that position with the Board.

Marginal note:Decision on objection

• 74 (1) If an objection is filed in respect of a particular position included in the application, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is a position referred to in any paragraphs 59(1)(a) to (h) and, if it determines that it is, make an order declaring the position to be a managerial or confidential position.

• Marginal note:Burden of proof on bargaining agent

  (2) The burden of proving that a particular position is not a position referred to in any of paragraphs 59(1)(a) to (c) is on the bargaining agent.

• Marginal note:Burden of proof on employer

  (3) The burden of proving that a particular position is a position referred to in any of paragraphs 59(1)(d) to (h) is on the employer.

Marginal note:When no objection filed

75 If no objection is filed in respect of a particular position included in the application, the Board must make an order declaring the position to be a managerial or confidential position.

Marginal note:Membership dues

• 76 (1) If an objection is filed under section 73, the employer must hold the amount that would otherwise be the membership dues in respect of the occupant of the position to which the objection relates until the Board makes an order declaring the position to be a managerial or confidential position, until it dismisses the application in respect of the position or until the objection is withdrawn, as the case may be.

• Marginal note:Remission of dues to occupant of position

  (2) If the Board makes an order declaring the position to be a managerial or confidential position or the objection is withdrawn, the amount held by the employer under subsection (1) must be remitted to the person to whom it relates.

• Marginal note:Remission of dues to bargaining agent

  (3) If the Board makes an order dismissing the application in respect of the position, the amount held by the employer under subsection (1) must be remitted to the bargaining agent.

Marginal note:Application for revocation of order

• 77 (1) If the bargaining agent considers that a position is no longer a managerial or confidential position, the bargaining agent may apply to the Board for an order revoking the order that declared that position to be a managerial or confidential position.

• Marginal note:Copy to employer

  (2) The bargaining agent must provide the employer with a copy of the application.

Marginal note:Decision

• 78 (1) If an application is made under section 77, the Board must, after giving the employer and the bargaining agent an opportunity to make representations, determine whether the position is still a managerial or confidential position and, if it determines that it is not, make an order revoking the order that declared the position to be a managerial or confidential position.

• Marginal note:Burden of proof on bargaining agent

  (2) The burden of proving that a particular position is no longer a managerial or confidential position is on the bargaining agent.