40:1 Bill 77, Labour Relations Amendment Act (Fairness for Employees), 2012

Natyshak, Taras

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Bill 77                                                          2012

An Act to amend the Labour Relations Act, 1995 with respect to enhancing fairness for employees

Note: This Act amends the Labour Relations Act, 1995.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

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

   1.  The Labour Relations Act, 1995 is amended by adding the following section after the heading “Establishment of Bargaining Rights by Certification”:

Lists of employees

   6.1  (1)  If a campaign to establish bargaining rights is under way and it appears to the Board that 20 per cent or more of the employees in a bargaining unit that could be appropriate for collective bargaining are members of a trade union, the Board shall direct, on application by the trade union, that the employer or a person acting on behalf of the employer provide to the trade union within two days,

  (a)  an accurate list of the employees in the bargaining unit that could be appropriate for collective bargaining; and

  (b)  an accurate list of all other employees of the employer in the location or locations where the campaign is under way.

Content of lists

   (2)  The lists shall be provided in electronic and printed formats and shall contain the following information about each employee:

    1.  His or her name.

    2.  His or her department.

    3.  His or her job title and classification, if applicable.

    4.  The usual number of hours per week he or she works.

    5.  Any other information specified by the Board in its direction.

Application

   (3)  An application by a trade union under subsection (1) shall include the name of the trade union, the description of the bargaining unit, the location or locations where a campaign to establish bargaining rights is under way and the membership evidence on which the trade union relies.

   2.  The Act is amended by adding the following section:

Location and method of voting

   8.0.1  (1)  If the Board directs that a representation vote be taken, it may, on application by the trade union applying for certification, direct that the vote,

  (a)  take place at a neutral site such as a school, place of worship or government office that is not on the employer’s premises but that is close to the employees’ place of work; or

  (b)  be conducted using electronic methods, by telephone, or by a combination of both.

Secrecy of ballot

   (2)  If the Board makes a direction under clause (1) (b), it shall establish procedures to ensure the secrecy of the ballot.

   3.  (1)  Subsection 43 (1) of the Act is repealed and the following substituted:

First agreement arbitration

   (1)  The first collective agreement between parties shall be settled by arbitration in accordance with this section if,

  (a)  the Minister refers the matter to first agreement arbitration in the circumstances described in subsection (1.2); or

  (b)  the Board directs first agreement arbitration after receiving an application under subsection (1.3).

Initiation

   (1.1)  For the purposes of this section, first agreement arbitration is initiated on the day on which the Minister makes a referral described in clause (1) (a) or the day on which the Board makes a direction described in clause (1) (b).

Arbitration on request to Minister

   (1.2)  A party may make a request to the Minister for first agreement arbitration and the Minister shall immediately refer the matter to a board of arbitration if the following conditions are met and shall notify the parties of the referral:

    1.  Thirty days have elapsed since the day on which it became lawful for the employees to strike and the employer to lock out employees.

    2.  The parties have been unable to enter into a first collective agreement.

Arbitration on application to Board

   (1.3)  A party may apply to the Board for first agreement arbitration if,

  (a)  the Minister has released,

           (i)  a notice that it is not considered advisable to appoint a conciliation board, or

          (ii)  the report of a conciliation board; and

  (b)  the parties have been unable to enter into a first collective agreement.

Proposed collective agreement

   (1.4)  The party seeking first agreement arbitration shall include with the request or application a copy of a proposed collective agreement which the party is prepared to execute and shall provide a copy of it to the other party.

Same, other party

   (1.5)  Within 10 days after receiving the copy of the proposed collective agreement, the other party shall file with the Minister or the Board, as the case may be, a copy of a proposed collective agreement which that party is prepared to execute.

Board of arbitration to settle agreement

   (1.6)  Subject to subsection (3), if first agreement arbitration is initiated, a board of arbitration composed of three members shall settle the first collective agreement between the parties and the following rules apply:

    1.  Each party shall appoint one member of the board of arbitration within 10 days after first agreement arbitration is initiated and shall inform the other party of its appointee. The appointees shall, within five days of the appointment of the second of them, appoint a third person who shall be the chair.

    2.  If a party fails to make an appointment as required by paragraph 1 or if the appointees fail to agree on a chair within the time limited, the appointment shall be made by the Minister on the request of either party.

    3.  The chair appointed under paragraph 1 or 2 shall promptly provide to the Minister or the Board, as the case may be, the name and contact information of each member of the board of arbitration.

    4.  The Minister or the Board, as the case may be, shall provide the chair of the board of arbitration with a copy of the proposed collective agreements included with the request or application under subsection (1.4) and filed under subsection (1.5).

    5.  The parties may agree that the board of arbitration shall settle the first collective agreement by final offer selection.

   (2)  Subsection 43 (2) of the Act is amended by striking out “subsection (1)” in the portion before clause (a) and substituting “subsection (1.3)”.

   (3)  Subsections 43 (6) and (7) of the Act are repealed.

   (4)  Subsection 43 (14) of the Act is amended by striking out the portion before clause (a) and substituting the following:

Effect of direction on strike or lock-out

   (14)  The employees in the bargaining unit shall not strike and the employer shall not lock out the employees where first agreement arbitration has been initiated and, where first agreement arbitration has been initiated during a strike by, or a lock-out of, employees in the bargaining unit, the employees shall forthwith terminate the strike or the employer shall forthwith terminate the lock-out and the employer shall forthwith reinstate the employees in the bargaining unit in the employment they had at the time the strike or lock-out commenced,

.     .     .     .     .

   (5)  Subsection 43 (16) of the Act is repealed and the following substituted:

Working conditions not to be altered

   (16)  Where first agreement arbitration has been initiated, the rates of wages and all other terms and conditions of employment and all rights, privileges and duties of the employer, the employees and the trade union in effect at the time notice was given under section 16 shall continue in effect, or, if altered before the initiation of first agreement arbitration, shall be restored and continued in effect until the first collective agreement is settled.

   (6)  Subsection 43 (19) of the Act is amended by striking out “the day that the Board may fix, but not earlier” and substituting “the day that the board of arbitration or the Board, as the case may be, may fix, but not earlier”.

   (7)  Clause 43 (23.1) (a) of the Act is amended by striking out “subsection (1)” and substituting “subsection (1.3)”.

   (8)  Clause 43 (23.1) (b) of the Act is amended by striking out “subsection (1)” and substituting “subsection (1.3)”.

   (9)  Subsections 43 (23.2), (23.3), (23.4) and (23.5) of the Act are repealed and the following substituted:

Procedure in dealing with multiple applications

   (23.2)  The Board shall proceed to deal or continue to deal with the application under subsection (1.3) before dealing with the decertification application or displacement application, as the case may be.

When application under subs. (1.3) granted

   (23.3)  If the Board grants the application under subsection (1.3), it shall dismiss the decertification application or displacement application.

When application under subs. (1.3) dismissed

   (23.4)  If the Board dismisses the application under subsection (1.3), it shall proceed to deal with the decertification application or displacement application.

Transition, multiple applications

   (23.5)  Subsections (23.2) to (23.4) apply with respect to an application referred to in those subsections that was filed with the Board before the day on which the Labour Relations Amendment Act (Fairness for Employees), 2012 received Royal Assent only if the Board has not made a final decision on that application before that day.

   (10)  Section 43 of the Act is amended by adding the following subsections:

When Minister refers matter to board of arbitration

   (23.6)  A decertification application or displacement application is of no effect if it is filed with the Board after first agreement arbitration is initiated under subsection (1.2) unless the application is brought after the first collective agreement is settled and it meets the requirements set out in this Act with respect to the application. 

Transition

   (23.7)  If an application for first agreement arbitration has been made to the Board before the day on which the Labour Relations Amendment Act (Fairness for Employees), 2012 came into force and the Board has not made a final decision on that application before that day,

  (a)  the application shall be dealt with and disposed of by the Board under subsection (2);

  (b)  paragraph 4 of subsection (1.6) does not apply; and

   (c)  no further requests or applications under this section shall be made until the Board has made a final decision on the application.

   4.  The Act is amended by adding the following section:

Successor rights, contract services sector

   69.1  (1)  This section applies with respect to the following services if they are provided directly or indirectly by or to a building owner, manager or occupant:

    1.  Security, cleaning or housekeeping services in respect of the premises.

    2.  Food services, homemaking services within the meaning of the Home Care and Community Services Act, 1994 or personal support services within the meaning of the Home Care and Community Services Act, 1994 provided to a building occupant.

Exclusions

   (2)  This section does not apply with respect to the following services:

    1.  Construction.

    2.  Maintenance other than maintenance activities related to cleaning the premises.

Deemed sale of business

   (3)  The sale of a business is deemed to have occurred and section 69 applies if,

  (a)  employees perform services at premises that are their principal place of work or, in the case of homemaking services or personal support services, at premises where the employees regularly provide the services;

  (b)  the employees’ employer ceases, in whole or in part, to provide the services at those premises; and

   (c)  substantially similar services are subsequently provided under the direction of another employer, whether at the same premises or different premises.

Interpretation

   (4)  For the purposes of section 69, the employer referred to in clause (3) (b) is considered to be the predecessor employer and the employer referred to in clause (3) (c) is considered to be the successor employer.

   5.  Section 98 of the Act is repealed and the following substituted:

Board power re interim orders for reinstatement

   98.  (1)  On application in a pending proceeding, the Board shall make interim orders requiring an employer to reinstate an employee in employment on such terms as it considers appropriate, or respecting the terms and conditions of employment of an employee whose employment has not been terminated but whose terms and conditions of employment have been altered or who has been subject to reprisal, penalty or discipline by the employer, if the Board determines that the following conditions are met:

    1.  The circumstances giving rise to the pending proceeding occurred at a time when a campaign to establish bargaining rights was under way.

    2.  There is a serious issue to be decided in the pending proceeding.

Same

   (2)  On application in a pending proceeding, the Board may make interim orders concerning procedural and substantive matters on such terms as it considers appropriate.

Same

   (3)  If the Board makes an order requiring an employer to reinstate an employee, the employer shall reinstate the employee to his or her previous employment and reinstate all previous terms and conditions of employment until the disposition of the pending proceeding on the merits.

Exception

   (4)  The Board shall not exercise its powers under subsection (1) if it appears to the Board that,

  (a)  the alteration of terms and conditions, or the dismissal, reprisal, penalty or discipline by the employer could not have been related to the exercise of rights under this Act by the employee; or

  (b)  irreparable harm will be caused to the employer if required to reinstate the employee, reinstate the previous terms and conditions of employment, or otherwise remedy the reprisal, penalty or discipline on an interim basis.

Procedure

   (5)  The Board shall dispose of an application under subsection (1) or (2) on the basis of written submissions and without holding a hearing unless the Board determines that an oral hearing is required in the interests of justice.

Same

   (6)  With respect to the Board, the power to make interim orders under this section applies instead of the power under subsection 16.1 (1) of the Statutory Powers Procedure Act.

Timing of decision

   (7)  The Board shall issue an order under subsection (1) or (2) within two days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board or, if the Board determines that an oral hearing is required, within seven days after the end of the hearing.

Commencement

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

Short title

   7.  The short title of this Act is the Labour Relations Amendment Act (Fairness for Employees), 2012.

 

EXPLANATORY NOTE

The Bill amends the Labour Relations Act, 1995. Major features of the Bill include the following:

    1.   The Act is amended to permit a trade union to ask the Ontario Labour Relations Board to direct an employer to provide the trade union with a list of employees in a bargaining unit that could be appropriate for collective bargaining.  

    2.   Currently, the Act sets out procedures for representation votes when a trade union applies for certification as a bargaining agent. The Act is amended to provide that the Board may direct that representation votes be held at a neutral site, electronically, or by telephone.

    3.   Currently, parties who are unable to enter into a first collective agreement may apply to the Ontario Labour Relations Board to direct the settlement of a first collective agreement by arbitration. The Act is amended to provide that as an alternative, either party may request first agreement arbitration by contacting the Minister. The Minister shall refer the matter to a board of arbitration if certain conditions are met.

    4.   Currently, the Act includes provisions governing successor rights when a business is sold. The Act is amended to extend the rules to the contract services sector.

    5.   Section 98 of the Act currently allows the Board to make interim orders reinstating employees in certain circumstances when proceedings are pending. The Bill amends the interim order provisions.

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