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

Act current to 2019-12-03 and last amended on 2019-07-29. Previous Versions

PART 1Labour Relations (continued)

DIVISION 5Bargaining Rights (continued)

Certification of Bargaining Agents (continued)

Where Certification Prohibited

Marginal note:Employer participation

  •  (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

 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.

  • 2003, c. 22, s. 2 “67”
  • 2013, c. 40, s. 299
  • 2018, c. 24, s. 3

Marginal note:Termination of existing collective agreement or arbitral award

 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

 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

  •  (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.

  • 2003, c. 22, s. 2 “70”
  • 2017, c. 9, s. 11
Managerial or Confidential Positions

Marginal note:Application

  •  (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

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

Marginal note:Objection

 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

  •  (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

 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

  •  (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

  •  (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

  •  (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.

Successor Rights and Obligations

Marginal note:Mergers, amalgamations and transfers of jurisdiction

  •  (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.

  • Marginal note:Board to determine questions

    (2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or Division 1 of Part 2.1 or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

  • Marginal note:Inquiry and votes

    (3) Before making a determination on the application, the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the determination. The provisions of subsection 65(2) apply in relation to the taking of the vote.

  • 2003, c. 22, s. 2 “79”
  • 2013, c. 40, s. 300
  • 2017, c. 9, s. 12
  • 2018, c. 24, s. 4
 
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