DIVISION V.1

OBLIGATIONS RELATING TO STRIKES AND LOCKOUTS

Definitions

87.1 The following definitions apply in this Division.

``employer''
«employeur»

``employer'' includes an employers' organization.

``trade union''
«syndicat»

``trade union'' includes a council of trade unions.

Strike notice

87.2 (1) Unless a lockout not prohibited by this Part has occurred, a trade union must give notice to the employer, at least seventy-two hours in advance, indicating the date on which a strike will occur, and must provide a copy of the notice to the Minister.

Lockout notice

(2) Unless a strike not prohibited by this Part has occurred, an employer must give notice to the trade union, at least seventy-two hours in advance, indicating the date on which a lockout will occur, and must provide a copy of the notice to the Minister.

New notice

(3) Unless the parties agree otherwise in writing, where no strike or lockout occurs on the date indicated in a notice given pursuant to subsection (1) or (2), a new notice of at least seventy-two hours must be given by the trade union or the employer if they wish to initiate a strike or lockout.

Secret ballot - strike vote

87.3 (1) Unless a lockout not prohibited by this Part has occurred, a trade union may not declare or authorize a strike unless it has, within the previous sixty days, or any longer period that may be agreed to in writing by the trade union and the employer, held a secret ballot vote among the employees in the unit and received the approval of the majority of the employees who voted.

Secret ballot - lockout vote

(2) Unless a strike not prohibited by this Part has occurred, an employers' organization may not declare or cause a lockout unless it has, within the previous sixty days, or any longer period that may be agreed to in writing by the trade union and the employers' organization, held a secret ballot vote among the employers who are members of the organization and received the approval of the majority of the employers who voted.

Conduct of vote

(3) A vote held under subsection (1) or (2) must be conducted in such a manner as to ensure that those employees or employers who are eligible to vote are given a reasonable opportunity to participate in the vote and to be informed of the results.

Application to have vote declared invalid

(4) An employee who is a member of a bargaining unit for which a strike vote has been held pursuant to subsection (1) and who alleges that there were irregularities in the conduct of the vote may, no later than ten days after the announcement of the results of the vote, make an application to the Board to have the vote declared invalid.

Application to have vote declared invalid

(5) An employer who is a member of an employers' organization that has held a lockout vote pursuant to subsection (2) and who alleges that there were irregularities in the conduct of the vote may, no later than ten days after the announcement of the results of the vote, make an application to the Board to have the vote declared invalid.

Summary procedure

(6) The Board may summarily dismiss an application made pursuant to subsection (4) or (5) if it is satisfied that, even if the alleged irregularities were proven, the outcome of the vote would not be different.

Order that vote invalid

(7) Where the Board declares the vote invalid, it may order that a new vote be held in accordance with the conditions it specifies in the order.

Maintenance of activities

87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.

Notice

(2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.

Agreement

(3) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer enter into an agreement with respect to compliance with subsection (1), either party may file a copy of the agreement with the Board. When the agreement is filed, it has the same effect as an order of the Board.

Where no agreement entered into

(4) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer do not enter into an agreement, the Board shall, on application made by either party no later than fifteen days after notice of dispute has been given, determine any question with respect to the application of subsection (1).

Referral

(5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.

Board order

(6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,

    (a) designate the supply of those services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public;

    (b) specify the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production; and

    (c) impose any measure that it considers appropriate for carrying out the requirements of this section.

Review of order

(7) On application by the employer or the trade union, or on referral by the Minister, during a strike or lockout not prohibited by this Part, the Board may, where in the Board's opinion the circumstances warrant, review and confirm, amend or cancel an agreement entered into, or a determination or order made, under this section and make any orders that it considers appropriate in the circumstances.

Binding settlement

(8) Where the Board is satisfied that the level of activity to be continued in compliance with subsection (1) renders ineffective the exercise of the right to strike or lockout, the Board may, on application by the employer or the trade union, direct a binding method of resolving the issues in dispute between the parties for the purpose of ensuring settlement of a dispute.

Rights unaffected

87.5 (1) Where the Board has received an application pursuant to subsection 87.4(4) or a question has been referred to the Board pursuant to subsection 87.4(5), the employer must not alter the rates of pay or any other term or condition of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, without the consent of the bargaining agent, until the later of the date on which the Board has determined the application or the question referred and the date on which the requirements of paragraphs 89(1)(a) to (d) have been met.

Rights unaffected

(2) Unless the parties otherwise agree, the rates of pay or any other term or condition of employment, and any rights, duties or privileges of the employees, the employer or the trade union in effect before the requirements of paragraphs 89(1)(a) to (d) were met, continue to apply with respect to employees who are members of the bargaining unit and who have been assigned to maintain services, facilities and production pursuant to section 87.4.

Continuation of strike or lockout

(3) A referral made pursuant to subsection 87.4(5), during a strike or lockout not prohibited by this Part, or an application or referral made pursuant to subsection 87.4(7), does not suspend the strike or lockout.

Reinstatement of employees after strike or lockout

87.6 At the end of a strike or lockout not prohibited by this Part, the employer must reinstate employees in the bargaining unit who were on strike or locked out, in preference to any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the unit on strike or locked out.

Services to grain vessels

87.7 (1) During a strike or lockout not prohibited by this Part, an employer in the long-shoring industry, or other industry included in paragraph (a) of the definition ``federal work, undertaking or business'' in section 2, its employees and their bargaining agent shall continue to provide the services they normally provide to ensure the tie-up, let-go and loading of grain vessels at licensed terminal and transfer elevators, and the movement of the grain vessels in and out of a port.

Rights unaffected

(2) Unless the parties otherwise agree, the rates of pay or any other term or condition of employment, and any rights, duties or privileges of the employees, the employer or the trade union in effect before the requirements of paragraphs 89(1)(a) to (d) were met, continue to apply with respect to employees who are members of the bargaining unit and who have been assigned to provide services pursuant to subsection (1).

Board order

(3) On application by an affected employer or trade union, or on referral by the Minister, the Board may determine any question with respect to the application of subsection (1) and make any order it considers appropriate to ensure compliance with that subsection.

38. The Act is amended by adding the following after section 88:

Strikes and lockouts prohibited during term of collective agreement

88.1 Strikes and lockouts are prohibited during the term of a collective agreement except if

    (a) a notice to bargain collectively has been given pursuant to a provision of this Part, other than subsection 49(1); and

    (b) the requirements of subsection 89(1) have been met.

39. Subsection 89(1) of the Act is amended by striking out the word ``and'' at the end of paragraph (c) and by replacing paragraph (d) with the following:

    (d) twenty-one days have elapsed after the date on which the Minister

      (i) notified the parties of the intention not to appoint a conciliation officer or conciliation commissioner, or to establish a conciliation board under subsection 72(1),

      (ii) notified the parties that a conciliation officer appointed under subsection 72(1) has reported ,

      (iii) released a copy of the report to the parties to the dispute pursuant to paragraph 77(a) , or

      (iv) is deemed to have been reported to pursuant to subsection 75(2) or to have received the report pursuant to subsection 75(3);

    (e) the Board has determined any application made pursuant to subsection 87.4(4) or any referral made pursuant to subsection 87.4(5); and

    (f) sections 87.2 and 87.3 have been complied with.

40. The portion of subsection 91(2) of the Act before paragraph (a) is replaced by the following:

Declaration that strike unlawful and strike prohibited

(2) Where an employer applies to the Board under subsection (1) for a declaration that a strike was, is or would be unlawful, the Board may, after affording the trade union or employees referred to in subsection (1) an opportunity to make representations on the application, make such a declaration and, if the employer so requests, may make an order

41. The portion of section 92 of the Act before paragraph (a) is replaced by the following:

Declaration that lockout unlawful and prohibition of lockout

92. Where a trade union alleges that an employer has declared or caused or is about to declare or cause a lockout of employees in contravention of this Part, the trade union may apply to the Board for a declaration that the lockout was, is or would be unlawful and the Board may, after affording the employer an opportunity to make representations on the application, make such a declaration and, if the trade union so requests, may make an order

42. (1) Subsection 94(2) of the Act is amended by striking out the word ``or'' at the end of paragraph (a), by adding the word ``or'' at the end of paragraph (b) and by adding the following after paragraph (b):

    (c) expresses a personal point of view, so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

(2) Section 94 of the Act is amended by adding the following after subsection (2):

Prohibition relating to replacement workers

(2.1) No employer or person acting on behalf of an employer shall use, for the demonstrated purpose of undermining a trade union's representational capacity rather than the pursuit of legitimate bargaining objectives, the services of a person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of an employee in the bargaining unit on strike or locked out.

(3) Subsection 94(3) of the Act is amended by adding the following after paragraph (d):

    (d.1) where the requirements of paragraphs 89(1)(a) to (d) have been met, cancel or threaten to cancel a medical, dental, disability, life or other insurance plan, whether administered by the employer or otherwise, that benefits employees, so long as the bargaining agent tenders or attempts to tender to the employer payments or premiums sufficient to continue the plan;

    (d.2) where the requirements of paragraphs 89(1)(a) to (d) have been met and the bargaining agent has tendered or attempted to tender to the employer payments or premiums sufficient to continue an insurance plan referred to in paragraph (d.1), deny or threaten to deny to any employee any benefits under the plan to which the employee was entitled before those requirements were met;

1991, c. 39, s. 2

43. (1) Paragraph 97(1)(a) of the Act is replaced by the following:

    (a) an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has contravened or failed to comply with subsection 24(4) or 34(6) or section 37, 47.3 , 50, 69, 87.5 or 87.6, subsection 87.7(2) or section 94 or 95; or

(2) Subsections 97(2) and (3) of the Act are replaced by the following:

Time for making complaint

(2) Subject to subsections (4) and (5), a complaint pursuant to subsection (1) must be made to the Board not later than ninety days after the date on which the complainant knew, or in the opinion of the Board ought to have known, of the action or circumstances giving rise to the complaint.

(3) The portion of subsection 97(5) of the Act before paragraph (a) is replaced by the following:

Exception

(5) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by a trade union to comply with paragraph 95(f) or (g) that has not been presented as a grievance or appeal to the trade union, if the Board is satisfied that

44. (1) Subsections 98(1) and (2) of the Act are replaced by the following:

Duty and power of the Board

98. (1) Subject to subsection (3), on receipt of a complaint made under section 97, the Board may assist the parties to the complaint to settle the complaint and shall, where it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, determine the complaint.

(2) Subsection 98(3) of the Act is replaced by the following:

Board may refuse to determine complaint involving collective agreement

(3) The Board may refuse to determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.

1991, c. 39, s. 3(1)

45. (1) The portion of subsection 99(1) of the Act before paragraph (a.1) is replaced by the following:

Board orders

99. (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3 , 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may

    (a) in respect of a failure to comply with subsection 24(4), section 47.3 , paragraph 50(b) or subsection 87.5(1) or (2) or 87.7(2) , by order, require an employer to pay to any employee compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

(2) Subsection 99(1) of the Act is amended by adding the following after paragraph (b):

    (b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects;

    (b.2) in respect of a failure to comply with section 87.6, by order, require an employer to reinstate any employee who the employer has failed to reinstate in accordance with that section and pay to the employee compensation not exceeding the sum that, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee;

    (b.3) in respect of a failure to comply with subsection 94(2.1), by order, require the employer to stop using, for the duration of the dispute, the services of any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of employees in the bargaining unit on strike or locked out;

(3) Subsection 99(1) is amended by adding the following after paragraph (c):

    (c.1) in respect of a contravention of paragraph 94(3)(d.1) or (d.2), by order, require the employer to reinstate any medical, dental, disability, life or other insurance plan, or to pay to any employee any benefits under such a plan to which the employee was entitled before the requirements of paragraphs 89(1)(a) to (d) were met;

46. The Act is amended by adding the following after section 99:

Certification

99.1 The Board may certify a trade union despite a lack of evidence of majority support if