Union Dialogue on Labour Relations and Union Density
Draft Statutory Language
For Discussion Purposes Only
1. Employee Bill Of Rights
POSTING OF INFORMATION CONCERNING RIGHTS AND OBLIGATIONS
Minister to prepare poster
6.1 (1) The Minister shall prepare and publish a poster providing such information
about this Act and the regulations as the Minister considers appropriate. The
poster, which shall be in plain language and published in both English and French,
shall include information respecting:
(a) The right of every employee to join a trade union of his or her own choice and
to participate in its lawful activities, including discussing and engaging in union
organizing and discussing wages, benefits and other terms and conditions of
employment with co-workers and with a union.
(b) The right of all employees to apply for certification under the Act, to sign
applications for membership in a trade union, to vote freely for union
representatives and to bargain collectively with employers to negotiate an
agreement concerning wages, hours of work and other terms and conditions of
employment.
(c) The right of all employees to engage in leafleting, picketing and strike activity in
accordance with the Act and the right of the union to apply for first agreement
arbitration in accordance with the provisions of the Act.
(d) The obligation on an employer to recognize a certified union as the exclusive
bargaining agent of all employees and to bargain in good faith and make every
reasonable effort to enter into a collective agreement.
(e) The prohibition on employers and persons acting on behalf of employers or
employer’s organizations against interfering with the formation, selection or
administration of a trade union or the representation of employees by a trade
union, including prohibitions on preventing employees from talking about or
soliciting for a union during non-working time, such as before or after work or
during break times, or from distributing union literature during such periods.
(f) The prohibition on employers, employers’ organizations or person acting on
behalf of an employer or an employers’ organization, against:
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(i) refusing to employ or to continue to employ a person, or discriminate
against a person in regard to employment or any term or condition of
employment because the person was or is a member of a trade union or
was or is exercising any other rights under this Act;
(ii) imposing, or proposing the imposition of, any condition in a contract of
employment that seeks to restrain an employee or a person seeking
employment from becoming a member of a trade union or exercising any
other rights under this Act;
(iii) seeking by threat of dismissal, or by any other kind of threat, or by the
imposition of a pecuniary or other penalty, or by any other means to
compel an employee to become or refrain from becoming or to continue to
be or to cease to be a member or officer or representative of a trade union
or to cease to exercise any other rights under this Act.
Such prohibitions would include prohibitions on employers from: (1) questioning
employees about union support or activities; (2) firing, demoting or transferring
employees, reducing their hours of work or changing shifts, or otherwise taking
adverse action against employees because they have joined a union or engaged in
union activity; (3) threatening to close a workplace or otherwise retaliating if
employees choose a union to represent them; (4) promising or granting
promotions, pay raises, or other benefits to discourage union support; (5)
prohibiting the wearing of union hats, buttons, t-shirts, etc. in the workplace except
where it interferes with the employer’s operations, and (6) spying on or videotaping
peaceful union activities and gatherings.
(g) The prohibitions on employers, employers’ organizations or a person acting on
behalf of an employer or an employers’ organization against bargaining with or
entering into a collective agreement with any person or another trade union or a
council of trade unions on behalf of or purporting, designed or intended to be
binding upon the employees in the bargaining unit or any of them, so long as a
trade union continues to be entitled to represent the employees in a bargaining
unit.
(h) The prohibitions on a person, a trade union or employers’ organization against
seeking by intimidation or coercion to compel any person to become or refrain from
becoming or to continue to be or to cease to be a member of a trade union or of an
employers’ organization or to refrain from exercising any other rights under this Act
or from performing any obligations under this Act.
(i) The prohibitions on employers, employers’ organizations or a person acting on
behalf of an employer or employers’ organization against refusing to employ or
continuing to employ a person; threatening dismissal or otherwise threatening a
person; discriminating against a person in regard to employment or a term or
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condition of employment; or intimidating or coercing or imposing a pecuniary or
other penalty on a person, because of a belief that the person may testify in a
proceeding under this Act or because the person has made or is about to make a
disclosure that may be required in a proceeding under this Act or because the
person has made an application or filed a complaint under this Act or has
participated in or is about to participate in a proceeding under this Act.
(j) The unfair labour practice procedures under the Act, including the right to
complain to the Ontario Labour Relations Board, an independent tribunal, which
will consider complaints brought by individuals or a trade union respecting
violations of the Act and which can grant broad relief to employees including:
reinstating them in their employment, awarding compensation (including lost
wages and benefits) and requiring employers to cease and desist from violations of
the Act.
(k) Where to obtain assistance and information respecting the exercise of rights
under the Act and how and where to file a complaint alleging a violation of the Act,
including all relevant contact information.
If poster not up to date
(2) If the poster prepared under subsection (1) has become out of date, the
Minister shall prepare and publish a new poster.
Material to be posted
(3) Every employer shall post and keep posted a sufficient number of copies of the
most recent poster published by the Minister under this section in conspicuous
places in every workplace of the employer so that the information is likely to come
to the attention of all employees in the workplace.
Where majority language not English
(4) If the language of 25% of employees in the workplace of an employer is a
language other than English or French, the Minister shall at the request of a union
prepare a translation of the poster into that language or languages and, if the
Minister has done so, the employer shall post and keep posted a copy of the
translation next to the copy of the poster.
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2. Card–based Certification
8. (1) Upon an application for certification, the Board shall ascertain,
(a) the number of employees in the bargaining unit on the certification application
date; and
(b) the number of those employees who are members of the trade union on that
date or who have applied to become members on or before that date.
Representation vote
(2) The Board shall direct that a representation vote be taken if it is satisfied that at
least 40 per cent and not more than 55 per cent of the employees in the bargaining
unit are members of the trade union on the certification application date or have
applied to become members on or before that date. Unless the Board directs
otherwise, the representation vote shall be held within five days (excluding
Saturdays, Sundays and holidays) after the day on which the application for
certification is filed with the Board.
Same
(3) The Board may direct that a representation vote be taken if it is satisfied that
more than 55 per cent of the employees in the bargaining unit are members of the
trade union on the certification application date or have applied to become
members on or before that date. Unless the Board directs otherwise, the
representation vote shall be held within five days (excluding Saturdays, Sundays
and holidays) after the day on which the application for certification is filed with the
Board.
Evidence
(4) The Board shall not consider the following evidence if it is filed or presented
after the certification application date:
1. Evidence that an employee is a member of a trade union, has applied to
become a member or has otherwise expressed a desire to be represented by a
trade union.
2. Evidence that an employee who had become or had applied to become a
member of a trade union has cancelled, revoked or resigned his or her
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membership or application for membership or has otherwise expressed a desire
not to be represented by a trade union.
3. Evidence that an employee who had become or had applied to become a
member of a trade union has done anything described in paragraph 2 but has
subsequently changed his or her mind by becoming a member again, by
reapplying for membership or by otherwise expressing a desire to be represented
by a trade union.
Evidence to be in writing, etc.
(5) The Board shall not consider evidence of a matter described in paragraph 1, 2
or 3 of subsection (4) that is filed on or before the certification application date
unless it is in writing and signed by each employee concerned.
Same
(6) The Board may consider evidence of a matter described in paragraph 2 or 3 of
subsection (4) but only for the purpose of deciding whether to make a direction
under subsection (3) and only if the evidence is filed or presented on or before the
certification application date and is in writing and signed by each employee
concerned.
Same
(7) Subsections (4) and (5) do not prevent the Board from,
(a) considering whether, on or before the certification application date, section 65,
67 or 71 has been contravened or there has been fraud or misrepresentation;
(b) requiring that evidence of a matter described in paragraph 2 or 3 of subsection
(4) that is filed or presented on or before the certification application date and is in
writing and signed by each employee concerned be proven to be a voluntary
expression of the wishes of the employee; or
(c) considering, in relation to evidence of a matter described in paragraph 1, 2 or 3
of subsection (4) that is filed or presented on or before the certification application
date and is in writing and signed by each employee concerned, further evidence
identifying or substantiating that evidence.
8.1 (1) Upon an application for certification, the trade union may request that a prehearing representation vote be taken.
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Voting constituency
(2) Upon such a request being made, the Board may determine a voting
constituency and, if it appears to the Board on an examination of the records of the
trade union and the records of the employer that not less than 35 per cent of the
employees in the voting constituency were members of the trade union at the time
the application was made, the Board may direct that a representation vote be
taken among the employees in the voting constituency.
Sealing of ballot box
(3) The Board may direct that the ballot box containing the ballots cast in a
representation vote taken under subsection (2) shall be sealed and that the ballots
shall not be counted until the parties have been given full opportunity to present
their evidence and make their submissions.
Effect of pre-hearing vote
(4) After a representation vote has been taken under subsection (2), the Board
shall determine the unit of employees that is appropriate for collective bargaining
and, if it is satisfied that not less than 35 per cent of the employees in the
bargaining unit were members of the trade union at the time the application was
made, the representation vote taken under subsection (2) has the same effect as a
representation vote taken under section 8.
Certification of trade union
8.2 (1) If a representation vote is taken, the Board shall certify the trade union as
the bargaining agent of the employees in the bargaining unit if more than 50 per
cent of the ballots cast are cast in favour of the trade union.
Idem, no vote
(2) If no representation vote is taken, the Board shall certify the trade union as the
bargaining agent of the employees in the bargaining unit if it is satisfied that more
than 55 per cent of the employees are members of the trade union on the
certification application date or have applied to become members on or before that
date.
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3. Employee Lists
6.2 (1) When a campaign to establish bargaining rights is underway and it appears
to the Board that 20 per cent or more of the employees in a bargaining unit which
could be appropriate for collective bargaining appear to be members of the Union,
the Board shall direct, upon the application of the Union, that the employer or a
person acting on behalf of the employer furnish the union, within 2 days, with: (1)
an accurate list of the employees in the bargaining unit which could be appropriate
for collective bargaining; and (2) an accurate list of all other employees of the
employer in the location or locations where a campaign is underway.
(2) The lists shall contain the name of the employee, the department in which the
employee is employed, the job title and/or classification of the employee, the
number of hours per week worked by the employee and such other information as
may be prescribed. The lists shall be provided in both electronic and printed forms.
(3) An application under subsection (1) shall include the name of the union, the
description of the bargaining unit, the location or locations where a campaign to
establish bargaining rights is underway and the membership evidence upon which
the union relies.
4. Neutral and Offsite Voting
8.1. If the Board directs that a representation vote be taken, upon the request of
the union applying for certification, it shall direct that the voting be conducted in a
neutral site, not on the employer’s premises, unless such arrangements are not
feasible. Such locations may include but are not limited to: schools, places of
worship, or government offices which are close to the employees’ place of work.
5. Electronic or Telephone Voting
8.2 If the Board directs that a representation vote be taken, where the union
applying for certification so requests, it shall direct that the voting be conducted by
electronic means or by telephone voting in accordance with the union’s request
and, in accordance with procedures established by the Board which ensure the
secrecy of the ballot.
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6.
Reinstatement During Organizing Campaign
Pending a Hearing
98. (1) On application in a pending proceeding,
(a) the Board may make interim orders on such terms as it considers appropriate,
(b) subject to subsections (2) and (3), shall make interim orders requiring an
employer to reinstate an employee in employment on such terms as it considers
appropriate; and make interim orders 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. In exercising its powers
the Board shall, where possible, reinstate the employee to his or her previous
employment and shall reinstate all previous terms and conditions of employment
pending the disposition on the merits of the pending application.
Same
(2) The Board shall exercise its power under clause (1) (b) 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 underway.
2. There is a serious issue to be decided in the pending proceeding.
Same
(3) The Board shall not exercise its powers under clause (1) (b) if it appears to the
Board that the alteration of terms and conditions, dismissal, reprisal, penalty or
discipline by the employer could not have been related to the exercise of rights
under the Act by an employee or that irreparable harm will be caused to the
employer if required to reinstate the employee or re-instate previous terms and
conditions of employment or otherwise remedy the reprisal, penalty or discipline on
an interim basis.
Same
(4) The Board shall dispose of an application brought under clause 1 (b) on the
basis of written materials filed by the parties and without holding a hearing, unless
it determines in the interests of justice a hearing is required. The Board shall
determine whether to issue the order within 2 business days of the filing of the
interim application, excluding Saturdays, Sundays or holidays.
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Same
(5) 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.
7.
First Agreement Arbitration
43. (1) A first collective agreement shall be settled by arbitration in accordance with
this section,
(a) if a party to the negotiations requests first agreement arbitration in the
circumstances described in subsection (1.2); or
(b) if the Board makes a direction to that effect on an application under subsection
(1.3).
Initiation
(1.1) For the purposes of this section, first agreement arbitration is considered to
have been initiated on the date on which a request described in clause (1) (a) is
made or on the date on which a direction described in clause (1)(b) is made.
Arbitration on request
(1.2) A party may make a request to the Minister for first agreement arbitration,
(a) if thirty days have elapsed since the day on which it became lawful for the
employees to strike and the employer to lock out employees; and
(b) if no collective agreement has been entered into.
Arbitration on application to the Board
(1.3) A party may apply to the Board for first agreement arbitration,
(a) if the Minister has released a notice that it is not considered advisable to
appoint a conciliation board or the Minister has released the report of a conciliation
board; and
(b) if the parties are unable to effect a first collective agreement.
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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 to the negotiations.
Idem
(1.5) Within ten days after receiving the copy of the proposed collective agreement,
the other party to the negotiations 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.
Duty of Board
(2) The Board shall consider and make its decision on an application under
subsection (1.3) within thirty days of receiving the application and it shall direct the
settlement of a first collective agreement by arbitration where, irrespective of
whether section 15 has been contravened, it appears to the Board that the process
of collective bargaining has been unsuccessful because of,
(a) the refusal of the employer to recognize the bargaining authority of the trade
union;
(b) the uncompromising nature of any bargaining position adopted by the
respondent without reasonable justification;
(c) the failure of the respondent to make reasonable or expeditious efforts to
conclude a collective agreement; or
(d) any other reason the Board considers relevant.
Board of arbitration
(3) If first agreement arbitration is initiated, a board of arbitration composed of
three members shall settle the first collective agreement between the parties.
Final offer selection
(3.1) The parties may agree that the board of arbitration shall settle the first
collective agreement by final offer selection.
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Appointments to board
(4) Each party shall appoint one member of the board of arbitration within ten days
after first agreement arbitration is initiated and shall inform the other party of its
appointee.
Idem
(5) Within five days after the second of the members is appointed to the board of
arbitration, the two appointees shall appoint a third member of the board who shall
act as its chair.
Idem
(6) If a party fails to make an appointment as required by subsection (4) or if the
appointees fail to agree upon a chair within the time limited, the appointment shall
be made by the Minister upon the request of either party.
(7) A board of arbitration appointed under this section shall determine its own
procedure but shall give full opportunity to the parties to present their evidence and
make their submissions and section 116 applies to the board of arbitration, its
decision and proceedings as if it were the Board.
Idem
(8) The remuneration and expenses of the members of a board of arbitration
appointed under this section shall be paid as follows:
1. A party shall pay the remuneration and expenses of the member appointed by or
on behalf of the party.
2. Each party shall pay one-half of the remuneration and expenses of the chair.
Idem
(9) Subsections 6(8), (9), (10), (12), (13), (14), (17) and (18) of the Hospital Labour
Disputes Arbitration Act and subsections 48(12) and (18) of this Act apply with
necessary modifications to a board of arbitration established under this section.
(10) The date of the first hearing of a board of arbitration appointed under this
section shall not be later than twenty-one days after the appointment of the chair.
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Idem
(11) A board of arbitration appointed under this section shall determine all matters
in dispute and release its decision within forty-five days of the commencement of
its hearing of the matter.
Mediation
(12) The Minister may appoint a mediator to confer with the parties and endeavour
to effect a settlement.
8. Successor Rights Contract Services Sector
69.1 This section applies with respect to services provided directly or indirectly by
or to an owner, manager or occupier of a premises or property that are related to
providing services to the premises or property, including housekeeping, homecare
services, building cleaning services, food services and security services.
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.
Services under contract
(3) For the purposes of section 69, the sale of a business is deemed to have
occurred,
(a) if employees perform services at premises or property that are their principal
place of work;
(b) if their employer ceases, in whole or in part, to provide the services at those
premises or property; and
(c) if substantially similar services are subsequently provided under the direction of
another employer to the same premises or property, whether at the same location
or a different location.
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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.
9.
Reemployment After Strike
80.(1) If, at the end of a lawful strike or at any time during or at the end of a lawful
lockout, where the union requests that employees be reinstated and the employer
and the trade union do not agree about the terms for reinstating employees, the
employer shall reinstate them in accordance with this section.This section applies
whether or not a collective agreement is entered into by the parties.
Idem
(2) Subject to subsections (4) and (5), the employer shall reinstate each striking or
locked out employee to the position that he or she held when the strike or lock-out
began or where no such work is available to a similar job or to any other job which
he or she may be reasonably accomodated. An employer shall not discriminate
against an employee in establishing terms of employment in respect of reinsted
employees for exercising or having exercised any rights under the Act.
Right to displace others
(3) Striking or locked-out employees are entitled to displace any other persons who
were performing the work of striking or locked-out employees during the strike or
lock-out. However, a striking or locked-out employee is not entitled to displace
another employee in the bargaining unit who performed work under section 73.2
during the strike or lock-out and whose length of service, as determined under
subsection (4), is greater than his or hers.
Insufficient work
(4) If there is not sufficient work for all striking or locked-out employees, including
employees in the bargaining unit who performed work under section 73.2 during
the strike or lock-out, the employer shall reinstate them to employment in the
bargaining unit as work becomes available,
(a) if the collective agreement contains recall provisions that are based on
seniority, in accordance with seniority as defined in those provisions and as
determined when the strike or lock-out began, in relation to other employees in the
bargaining unit who were employed at the time the strike or lock-out began; or
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(b) if there is no collective agreement or there are no such recall provisions, in
accordance with each employee’s length of service, as determined when the strike
or lock-out began, in relation to other employees in the bargaining unit who were
employed at the time the strike or lock-out began.
Starting up operations
(5) Subsection (4) does not apply if an employee is not able to perform work
required to start up the employer’s operations, but only for the period of time
required to start up operations.
10. Requirement re just cause prior to first
agreement and during strike
76. 1 (1) No employer, employers’ organization or person acting on behalf of an
employer or employers’ organization shall discharge or discipline an employee
without just cause if,
(a) a trade union is certified as the employee’s bargaining agent or the employer
has voluntarily recognized the trade union as the employee’s bargaining agent;
and
(b) no first collective agreement has been settled; or
(c) during the course of a lawful strike or lockout, whether in connection with a first
collective agreement or any subsequent collective agreement.
Substitution of penalty
(2) If the Board determines that an employer has imposed a penalty on an
employee for cause, the Board may substitute such lesser penalty as it considers
just and reasonable in all the circumstances.
Exception
(3) If the employee is discharged during a probationary period described in the
employment contract between the employer and the employee, the Board may
apply a lesser standard for discharging the employee.