41:2 Bill 83, Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016

McDonell, Jim

Viewing: Original (current version) pdf

Bill 83                                                          2016

An Act to amend the Labour Relations Act, 1995 with respect to the determination of bargaining units and the certification of trade unions

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  Subsection 1 (1) of the Labour Relations Act, 1995 is amended by adding the following definition:

“coercion” and “intimidation” include a pattern of conduct by a person or group of persons with respect to another person or group of persons that consists of repeated personal approaches, stalking or harassment through any means, including by telephone or by uttering threats; (“contrainte”, “intimidation”, “menace”)

   2.  (1)  Subsection 7 (12) of the Act is amended by striking out “shall” and substituting “may”.

   (2)  Subsection 7 (13) of the Act is amended by striking out “The application for certification” at the beginning and substituting “If the application for certification includes a description of the proposed bargaining unit, it”.

   (3)  Section 7 of the Act is amended by adding the following subsection:

Default bargaining unit

   (15)  If the trade union does not include a description of the proposed bargaining unit in the application for certification in accordance with subsection (12), the bargaining unit for the purposes of the application shall consist of all of the employees of the employer at the time of the application, subject to the regulations made under this Act.

   3.  (1)  Subsections 8 (1) and (2) of the Act are repealed and the following substituted:

Voting constituency

   (1)  Upon receiving an application for certification, the Board shall determine the voting constituency to be used for a representation vote and shall base the determination on the bargaining unit that it determines under section 9.

Direction re representation vote

   (2)  The Board shall direct that a representation vote be taken among the individuals in the voting constituency if, after holding a hearing, the Board determines that,

  (a)  40 per cent or more of the individuals in the bargaining unit proposed in the application for certification, or in the bargaining unit described in subsection 7 (15) if the trade union did not propose a bargaining unit in the application, appear to be members of the union at the time the application was filed; or

  (b)  the employer or a person acting on behalf of the employer has contravened section 72 with respect to the activities of the trade union to achieve the percentage of membership described in clause (a).

   (2)  Subsection 8 (4) of the Act is repealed.

   (3)  Subsection 8 (5) of the Act is amended by striking out “within five days” and substituting “no earlier than five days and no later than 10 days”.

   (4)  Section 8 of the Act is amended by adding the following subsection:

Transition

   (10)  This section, as it read immediately before the day the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016 receives Royal Assent, continues to apply to an application for certification that the Board receives before that day.

   4.  Subsection 8.1 (3) of the Act is amended by striking out “two days” and substituting “five days”.

   5.  (1)  Subsection 9 (1) of the Act is amended by striking out “Subject to subsection (2)” at the beginning.

   (2)  Subsection 9 (2) of the Act is repealed.

   6.  (1)  Subsection 11 (2) of the Act is amended by adding “or” at the end of clause (a), by striking out “or” at the end of clause (b) and by striking out clause (c).

   (2)  Section 11 of the Act is amended by adding the following subsection:

Hearing required

   (2.1)  If a trade union makes an application under subsection (2), the Board shall hold a hearing before making an order under that subsection or refusing to make an order under that subsection.

   (3)  Subsection 11 (3) of the Act is amended by striking out “or subsection 10 (2)” at the end.

   7.  Subsection 79 (5) of the Act is repealed.

   8.  (1)  Subsection 96 (4) of the Act is amended by striking out “or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer” in the portion before clause (a).

   (2)  Subsection 96 (5) of the Act is repealed and the following substituted:

Burden of proof

   (5)  On an inquiry by the Board under subsection (4) into a complaint that is made on or after the day the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016 receives Royal Assent, the burden of proof that a person or body has contravened this Act lies on the complainant alleging the contravention.

Transition

   (5.1)  Subsection (4), as it read immediately before the day the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016 receives Royal Assent, continues to apply to an inquiry described in that subsection with respect to a complaint made before that day.

   9.  Subsection 98 (4) of the Act is repealed and the following substituted:

Burden of proof

   (4)  In an application under this section, the burden of proof lies on the applicant.

   10.  Section 116 of the Act is repealed and the following substituted:

Appeal

   116.  A party affected by a decision, order, direction, declaration or ruling of the Board may appeal it to the Divisional Court in accordance with the rules of court.

   11.  Section 125 of the Act is amended by adding the following clause:

(0.a) determining what constitutes a bargaining unit in any class of application for certification for the purposes of subsection 7 (15);

   12.  Subsection 128 (1) of the Act is repealed and the following substituted:

Bargaining units in the construction industry

   (1)  If a trade union applies for certification as bargaining agent of the employees of an employer, the Board shall determine the unit of employees that is appropriate for collective bargaining and it shall not confine the unit to a particular project, work site or shift.

   13.  (1)  Subsection 128.1 (6) of the Act is repealed and the following substituted:

Hearing

   (6)  The Board,

  (a)  may hold a hearing if it receives the application for certification before the day the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016 receives Royal Assent and the Board considers it necessary to do so in order to make a decision under this section; and

  (b)  shall hold a hearing if it receives the application for certification on or after the day the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016 receives Royal Assent.

   (2)  Subsection 128.1 (9) of the Act is amended by striking out “directed under clause (13) (b)”.

   (3)  Subsections 128.1 (12) and (13) of the Act are repealed and the following substituted:

Board shall direct representation vote

   (12)  If the Board is satisfied that at least 40 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it shall direct that a representation vote be taken.

   (4)  Clause 128.1 (14) (a) of the Act is amended by striking out “within five days” and substituting “no earlier than five days and no later than 10 days”.

   (5)  Clause 128.1 (21) (a) of the Act is amended by striking out “(7), (12) or (13)” and substituting “(7) or (12)”.

   (6)  Clause 128.1 (21) (b) of the Act is amended by striking out “or clause (13) (b)”.

   (7)  Subsection 128.1 (23) of the Act is amended by striking out “or clause (13) (b)” at the end.

   (8)  Clause 128.1 (24) (b) of the Act is repealed.

   14.  Subsection 160 (2) of the Act is repealed.

Commencement

   15.  This Act comes into force on the day it receives Royal Assent.

Short title

   16.  The short title of this Act is the Fairness in Labour Relations Act (Bargaining Units and Certification of Trade Unions), 2016.

 

EXPLANATORY NOTE

The Bill amends the Labour Relations Act, 1995.

A trade union is no longer required to include a written description of the proposed bargaining unit in an application for certification. If it does not include one, the bargaining unit for the purposes of the application consists of all of the employees of the employer at the time of the application, subject to the regulations made under the Act.

The Ontario Labour Relations Board is required to hold a hearing when determining whether to direct a representation vote under section 8 of the Act. The Board is required to base the voting constituency for the vote on the determination of the bargaining unit that it makes under section 9 of the Act. The Bill adds another circumstance in which the Board is required to order a representation vote, specifically if the Board determines that the employer or a person acting on behalf of the employer has interfered improperly with the activities of the trade union to achieve the threshold of 40 per cent membership among individuals in the bargaining unit which triggers a representation vote. The Bill extends the time limit for an order for the holding of a representation vote from five days to 10 days after the day on which the application for certification is filed with the Board.

The Board is prohibited from certifying a trade union as the bargaining agent of the employees in a bargaining unit unless a representation vote is held among the employees.

At present, employees in the construction industry are exempt from certain restrictions in section 79 of the Act against striking. The Bill removes that exemption.

At present, if a complaint alleges that an employer or employers’ organization has contravened the Act with respect to employment practices, the burden of proof in an inquiry by the Board into the complaint lies with the employer or employers’ organization. The Bill transfers the burden of proof to the complainant.

At present, a party affected by a decision of the Board has no right of appeal. The Bill provides a right of appeal to the Divisional Court in accordance with the rules of court.

In determining the unit of employees in the construction industry that is appropriate for collective bargaining, the Board is no longer permitted to refer to a geographic area and is not permitted to confine the unit to a particular work site or shift.

The Board is required to hold a hearing to determine whether section 128.1 of the Act authorizes it to certify a trade union as the bargaining agent of the employees in a bargaining unit in the construction industry.

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