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Bill C-25

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	(iii) evidence of signification by employees that they no longer wish to be represented by an employee organization;
	(l) the circumstances in which evidence referred to in paragraph (k) may be received by it as evidence that any employees wish or do not wish to have a particular employee organization represent them as their bargaining agent, and the circumstances in which it must not make public any evidence so received; and
	(m) any other matter that is incidental or conducive to the exercise of its powers, the performance of its functions or the attainment of the objects of this Part.
Powers of Board	40. (1) The Board has, in relation to any matter before it, the power to
	(a) summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath in the same manner as a superior court of record;
	(b) order pre-hearing procedures, including pre-hearing conferences that are held in private, and direct the date, time and place of the hearings for those procedures;
	(c) order that a hearing or a pre-hearing conference be conducted using any means of telecommunication that permits all persons participating in the conference to communicate adequately with each other;
	(d) administer oaths and solemn affirmations;
	(e) accept any evidence, whether admissible in a court of law or not;
	(f) examine any evidence that is submitted to it respecting membership of employees in an employee organization seeking certification and, in the case of a council of employee organizations seeking certification, in any employee organization forming part of the council;
	(g) examine documents forming or relating to the constitution or articles of association of any employee organization seeking certification and, in the case of a council of employee organizations seeking certification, those of any employee organization forming part of the council;
	(h) compel, at any stage of a proceeding, any person to produce the documents and things that may be relevant;
	(i) require the employer to post and keep posted in appropriate places any notice that the Board considers necessary to bring matters or proceedings before the Board to the attention of employees;
	(j) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer where work is being or has been done by employees, inspect and view any work, material, machinery, appliance or article in the premises and require any person in the premises to answer all questions relating to the matter before it;
	(k) subject to any limitations that the Governor in Council may establish in the interests of defence or security, enter any premises of the employer for the purpose of conducting representation votes during working hours; and
	(l) authorize any person to do anything that the Board may do under paragraphs (d) to (k) and require the person to report to it on what the person has done.
Frivolous applications	(2) The Board may dismiss summarily any application or complaint that in its opinion is frivolous or vexatious.
Determination without oral hearing	41. The Board may decide any matter before it without holding an oral hearing.
Scope of orders	42. In making an order or a decision, or doing any other thing in relation to any person under this Act, the Board may do so either generally or in any particular case or class of cases.
Review of orders and decisions	43. (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.
Exception	(2) A right that is acquired by virtue of an order or a decision that is reviewed, rescinded or amended by the Board may not be altered or extinguished with effect from a day that is earlier than the day on which the review, rescission or amendment is made.
	Chairperson
Chief executive officer	44. The Chairperson is the chief executive officer of the Board and has supervision over and direction of the work of the Board, including
	(a) the assignment and reassignment of matters that the Board is seized of to panels;
	(b) the composition of panels and the assignment of Vice-Chairpersons to preside over panels; and
	(c) the determination of the date, time and place of hearings.
Delegation by Chairperson	45. The Chairperson may authorize a Vice-Chairperson to exercise any of the Chairperson's powers or perform any of the Chairperson's functions, including powers or functions delegated to the Chairperson by the Board.
Absence of Chairperson	46. (1) If the Chairperson is absent or unable to act, or the office of Chairperson is vacant, a Vice-Chairperson designated by the Minister is to act as Chairperson.
Absence of Chairperson and the Vice-Chairper son	(2) In the event of the absence or incapacity of both the Chairperson and the Vice-Chairperson designated by the Minister, or if both of those offices are vacant, the Minister may designate a member or any qualified person to act as Chairperson but no person so designated by the Minister has authority to act as Chairperson for more than 60 days without the approval of the Governor in Council.
	Human Resources
Responsibility for human resources management	47. The Chairperson is authorized, in respect of persons employed by the Board, to exercise the powers and perform the functions of the Treasury Board under the Financial Administration Act that relate to human resources management within the meaning of paragraph 7(1)(e) and section 11.1 of that Act, and those of deputy heads under subsection 12(2) of that Act, including the determination of terms and conditions of employment of persons employed by the Board.
Executive Director of Board	48. (1) An Executive Director of the Board is to be appointed under the Public Service Employment Act.
Supervision of work	(2) The Executive Director of the Board assists the Chairperson in the exercise of the Chairperson's functions and, subject to the Chairperson's direction, directs and supervises the day-to-day conduct of the work of the Board, the management of the Board's internal affairs and the work of persons employed by the Board.
Other persons	49. All other persons that the Board considers necessary for it to employ are to be appointed under the Public Service Employment Act.
Experts and advisers	50. (1) The Chairperson may engage on a temporary basis the services of mediators and other experts or persons having technical or special knowledge to assist the Board in an advisory capacity and, subject to the approval of the Governor in Council, fix their remuneration.
Non-applicati on of Public Service Superannuati on Act	(2) A person engaged under subsection (1) is not to be considered as being employed in the public service for the purposes of the Public Service Superannuation Act by reason only of being so engaged.
	Judicial Review and Enforcement of Orders
Orders not to be reviewed by court	51. (1) Subject to this Part, every order or decision of the Board is final and may not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Standing of Board	(2) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board's jurisdiction, policies and procedures.
No review by certiorari, etc.	(3) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part may, on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction,
	(a) be questioned, reviewed, prohibited or restrained; or
	(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise.
Filing of Board's orders in Federal Court	52. (1) The Board must, on the request in writing of any person or organization affected by any order of the Board, file a certified copy of the order, exclusive of the reasons for the order, in the Federal Court, unless, in its opinion,
	(a) there is no indication of failure or likelihood of failure to comply with the order; or
	(b) there is other good reason why the filing of the order in the Federal Court would serve no useful purpose.
Effect of filing	(2) An order of the Board becomes an order of the Federal Court when a certified copy of the order is filed in that court, and it may subsequently be enforced as such.
	Advisory Board
Minister to establish	53. (1) The Minister shall establish an advisory board to provide advice to the Chairperson on the compensation analysis and research services provided by the Board.
Composition	(2) The advisory board is to consist of a chairperson and no more than 11 other members appointed by the Minister.
Qualifications	(3) All of the members must have knowledge or experience that will assist the advisory board to accomplish its mandate, including knowledge of or experience in compensation issues or statistics.
Representativ eness	(4) Appointments to the advisory board are to be made such that there is an equal number of members representative of the employer and of employees.
	DIVISION 5
	BARGAINING RIGHTS
	Certification of Bargaining Agents
	Application for Certification
Right to apply	54. Subject to section 55, an employee organization that seeks to be certified as bargaining agent for a group of employees that it considers constitutes a unit appropriate for collective bargaining may apply to the Board, in accordance with the regulations, for certification as bargaining agent for the proposed bargaining unit. The Board must notify the employer of the application without delay.
Agreements for term of two years or less	55. (1) If a collective agreement, or an arbitral award, with a term of two years or less applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only after the commencement of the last two months of its term.
Agreements for term of more than two years	(2) If a collective agreement, or an arbitral award, with a term of more than two years applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent, the application for certification may be made only
	(a) after the commencement of the twenty-third month of its term and before the commencement of the twenty-fifth month of its term;
	(b) during the two-month period immediately before the end of each year that the agreement or award continues to be in force after the second year of its term; or
	(c) after the commencement of the last two months of its term.
Agreements for an indefinite term	(3) If a collective agreement that applies in respect of any employees in the proposed bargaining unit for which an employee organization is seeking to be certified as bargaining agent provides that it will continue to operate after the term specified in it for a further term or successive terms if either party fails to give to the other a notice of termination or a notice of its desire to bargain with a view to the renewal of the collective agreement, with or without modifications, the application for certification may be made
	(a) at any time permitted by subsection (1) or (2), as the case may be; or
	(b) during the two-month period immediately before the end of each year that the collective agreement continues to operate after the term specified in the collective agreement.
Continuation of terms and conditions	56. After being notified of an application for certification made in accordance with this Part, the employer may not, except under a collective agreement or with the consent of the Board, alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until
	(a) the application has been withdrawn by the employee organization or dismissed by the Board; or
	(b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.
	Determination of Appropriate Bargaining Units
Determination of unit	57. (1) When an application for certification is made under section 54, the Board must determine the group of employees that constitutes a unit appropriate for collective bargaining.
Consideration of employer's classification	(2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer's classification of persons and positions, including the occupational groups or subgroups established by the employer.
Unit co-extensive with occupational groups	(3) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.
Composition of bargaining unit	(4) For the purposes of this Part, a unit of employees may be determined by the Board to constitute a unit appropriate for collective bargaining whether or not its composition is identical with the group of employees in respect of which the application for certification was made.
Determination of questions of membership in bargaining units	58. On application by the employer or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board to constitute a unit appropriate for collective bargaining, or is included in any other unit.
	Managerial or Confidential Positions
Application	59. (1) After being notified of an application for certification made in accordance with this Part, the employer may apply to the Board for an order declaring that any position of an employee in the proposed bargaining unit is a managerial or confidential position on the grounds that
	(a) the position is confidential to the Governor General, a Minister of the Crown, a judge of the Supreme Court of Canada, the Federal Court or the Tax Court of Canada, or a deputy head;
	(b) the position is classified by the employer as being in the executive group, by whatever name called;
	(c) the occupant of the position provides advice on labour relations, staffing or classification;
	(d) the occupant of the position has substantial duties and responsibilities in the formulation and determination of any policy or program of the Government of Canada;
	(e) the occupant of the position has substantial management duties, responsibilities and authority over employees or has duties and responsibilities dealing formally on behalf of the employer with grievances presented in accordance with the grievance process provided for under Part 2;
	(f) the occupant of the position is directly involved in the process of collective bargaining on behalf of the employer;
	(g) the occupant of the position has duties and responsibilities not otherwise described in this subsection and should not be included in a bargaining unit for reasons of conflict of interest or by reason of the person's duties and responsibilities to the employer; or
	(h) the occupant of the position has, in relation to labour relations matters, duties and responsibilities confidential to the occupant of a position described in paragraph (b), (c), (d) or (f).
Content of application	(2) The application must set out every position that the employer considers to be a position referred to in any of paragraphs (1)(a) to (h).

Bill C-25

DIVISION 5

BARGAINING RIGHTS