PART 1Labour Relations (continued)
DIVISION 5Bargaining Rights (continued)
Certification of Bargaining Agents (continued)
Marginal note:Continuation of terms and conditions
56 After being notified of an application for certification made in accordance with this Part or Division 1 of Part 2.1, the employer is not authorized, except under a collective agreement or with the consent of the Board, to alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until
(a) the application has been withdrawn by the employee organization or dismissed by the Board; or
(b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.
- 2003, c. 22, s. 2 “56”
- 2017, c. 9, s. 8
Determination of Appropriate Bargaining Units
Marginal note:Determination of unit
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
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).
- 2003, c. 22, ss. 2 “59”, 275
- 2017, c. 9, s. 9
Marginal note:Copy to employee organization
60 The employer must provide the employee organization seeking to be certified with a copy of the application.
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.
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.
- 2003, c. 22, s. 2 “64”
- 2014, c. 40, s. 9
- 2017, c. 9, ss. 10, 70, c. 12, s. 8
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
- 2003, c. 22, s. 2 “65”
- 2014, c. 40, s. 10
- 2017, c. 12, s. 9
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