Proposed amendments to the Canada Labour Code unveiled

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The statute that provides the collective bargaining framework for some 700,000 workers in the federally regulated private sector is slated for change. On November 4, 1996, the federal government introduced Bill C-66, An Act to Amend the Canada Labour Code. The amendments were developed following the release in February of a report entitled “Seeking a Balance”, issued by a task force made up of Chair Andrew Sims and members Paula Knopf and Rodrigue Blouin. Some key aspects of the new provisions are discussed below.

CANADA BOARD REORGANIZED AND STRENGTHENED

Under the Bill, the current non-representational Canada Labour Relations Board will be replaced by the Canada Industrial Relations Board, composed of a neutral Chair and Vice-Chairs, and equal numbers of members representing employers and employees. The new Board will be given powers to streamline the administration of the Code. (Note: all section numbers refer to the Code.)

Among these powers will be the ability to hold hearings before a single Vice-Chair, rather than a three-person panel, in specified circumstances. 14(3) The Board will also be given wider powers to set expedited procedures, settle disputes during proceedings, order pre-hearing procedures, make interim orders, compel the production of evidence and decide matters without an oral hearing. 15, 15.1, 16, 16.1, 19.1 Many of these new powers will also be conferred on grievance arbitrators under the Code, along with the power to interpret, apply and give relief under employment-related legislation, even where such legislation conflicts with the collective agreement. 60

REPRESENTATION AND SUCCESSOR RIGHTS

The amendments contain explicit recognition of an employer’s right to communicate with employees, provided the employer does not use coercion, intimidation, threats, promises or undue influence. 94(2)(c) In the context of certification applications, where the Board is of the opinion that an employer has committed an unfair labour practice, and that this had the effect of preventing the union from obtaining majority employee support, the Board may certify the union despite a lack of evidence of majority support. 99.1 Employees dismissed or disciplined after certification, but before the first collective agreement is entered into, will be extended just cause protection, and the union will have the right to submit the matter to arbitration. 36.1

Unions have been given increased access to employees by a provision empowering the Board to require an employer to give the union names and addresses of employees who normally work outside the employer’s premises. To grant this access, the Board must be of the opinion that such communication is required for the purposes of soliciting union membership, negotiating or administering the collective agreement, processing a grievance, or providing a trade union service to employees. The order must specify the conditions necessary to protect the privacy and safety of off-site employees. 109.1

Where a business under provincial jurisdiction comes under federal jurisdiction as a result of a sale or change in activity, successor rights will apply. 44(3)

STRIKES AND LOCKOUTS

The Bill does not adopt a blanket ban on the use of replacement workers during work stoppages. However, it prohibits the use of such workers, where the purpose is to undermine the union’s representational capacity. This will be for the Board to determine, and where it rules that a violation has occurred, it can order the employer to stop using replacement workers for the duration of the dispute. 94(2.1), 99(1)(b.3) Employees who were displaced by replacement workers during a work stoppage will be entitled to return to their jobs at the conclusion of the dispute. 87.6 Replacement workers will not be entitled to vote in any representation votes, and no application for decertification or revocation of bargaining rights will be permitted during a work stoppage without the consent of the Board. 29(1.1), 38(5)

Employees are extended several new forms of protection when on strike or lockout. During work stoppages, they will retain their entitlement to benefit and insurance programs that were in effect before the dispute. 94(3) Where there is no collective agreement in force, unionized employees will have access to arbitration in cases of discharge or discipline. 67(6)

The right to strike or lockout will be subject to the requirement that 72 hours notice be given to the other party. 87.2 As well, strikes will be conditional on the union obtaining a majority strike vote by secret ballot, to be held within 60 days before the strike declaration. 87.3

MAINTENANCE OF SERVICES DURING WORK STOPPAGES

The parties involved in a work stoppage will be obliged to maintain services necessary to prevent an immediate and serious danger to public health and safety. In the event the parties cannot arrive at an agreement as to which services must be maintained, the parties or the Minister of Labour may apply to the Board to make a determination on this issue. If the Board determines that the level of services that must be maintained renders the work stoppage ineffective, it may, on application of either party, direct a binding method for resolving the issues in dispute. 87.4

IN OUR VIEW

The new Board appears to play a key role in the changes proposed here. It will decide whether to permit or prohibit the use of replacement workers, as well as the thorny issue of union access to employees who work off-site. Further, it is the Board that will determine the level of services necessary to protect public health and safety during a work stoppage. (For more recent developments, see “Amendments to Canada Labour Code re-introduced” on our Publications page, “Two federal labour bills now in force” on our What’s New page, and Canada Labour Code amendments now law” on our Publications page.)

For more information on this subject, please contact George Rontiris (613) 563-7660, Extension 275 or Steven Williams (613) 563-7660, Extension 242.