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C.C.S.M. c. L10

The Labour Relations Act

WHEREAS it is in the public interest of the Province of Manitoba to further harmonious relations between employers and employees by encouraging the practice and procedure of collective bargaining between employers and unions as the freely designated representatives of employees;

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

Definitions

1           In this Act

"arbitrator" means an arbitrator appointed under any provision of this Act or under any provision of, or deemed to be part of, a collective agreement, or any other person selected by the parties to a collective agreement to settle any difference between them concerning the meaning, application or alleged violation of the collective agreement; (« arbitre »)

"arbitration board" means an arbitration board appointed under any provision of this Act or under any provision of, or deemed to be part of, a collective agreement, or any other body selected by the parties to a collective agreement to settle any difference between them concerning the meaning, application or alleged violation of the collective agreement; (« conseil d'arbitrage »)

"board" means The Manitoba Labour Board; (« Commission »)

"bargaining agent" means

(a) a union which is certified to act on behalf of employees in collective bargaining, or

(b) any other union which, on behalf of employees of an employer, has entered into a collective agreement with the employer

(i) the term of which has not expired, or

(ii) in respect of which notice to bargain collectively has been given under section 61 or collective bargaining has commenced under section 63; (« agent négociateur »)

"business" means any kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise, and whether carried on by or as part of the operation of government, and includes any part of a business; (« entreprise »)

"certified bargaining agent" means a bargaining agent that has been certified under this Act and the certification of which has not been cancelled; (« agent négociateur accrédité »)

"collective agreement" means an agreement in writing between an employer or an employers' organization acting on behalf of an employer, on the one hand, and a bargaining agent of the employer's employees, on behalf of the employees, on the other hand, containing provisions respecting terms and conditions of employment of employees, including provisions respecting rates of pay and hours of work of employees, and includes a collective agreement the provisions of which are settled by the board or an arbitrator under section 87 or 87.3, or a collective agreement settled by arbitration under The Public Schools Act; (« convention collective »)

"collective bargaining" means negotiating with a view to the conclusion of a collective agreement or the renewal or revision thereof; (« négociation collective »)

"conciliation board" means a conciliation board appointed by the minister under this Act; (« commission de conciliation »)

"conciliation officer" means a person appointed under this Act by the minister as a conciliation officer whose duties include the conciliation of disputes; (« conciliateur »)

"dispute" means any dispute or difference, or apprehended dispute or difference, between an employer and one or more of his employees or a bargaining agent acting on behalf of his employees, as to matters or things affecting, or relating to, terms or conditions of employment or work done or to be done by him or by the employee or employees, or as to privileges, rights, and duties, of the employer or employee or employees; (« différend »)

"employee" means a person employed to do work and includes any person designated by the board as an employee for the purposes of this Act, notwithstanding that the person to whom the employee provides services is not vicariously liable for the employee's acts or omissions but does not include a person who is employed in a capacity that, in the opinion of the board, would make it unfair to that person, the employer or a union to include the person in a unit for collective bargaining purposes because

(a) the person performs management functions primarily, or

(b) the person is employed in a confidential capacity in matters relating to labour relations; (« employé »)

"employer" means any person who employs one or more employees; (« employeur »)

"employers' organization" means an organization of employers formed for purposes including the conduct of relations between employers and employees; (« association d'employeurs »)

"grievance mediator" means a grievance mediator appointed under section 129 or subsection 130(8); (« médiateur de griefs »)

"individual" means a person who is not a corporation; (« particulier »)

"lockout" includes

(a) the closing of a place of employment, or

(b) a suspension of work, or

(c) a refusal by an employer to continue to employ a number of his employees, or

(d) a substantial alteration by an employer in the standard cycle or normal pattern of operation in a place of employment,

done or made to compel his employees, or to aid another employer to compel his employees, to agree to terms or conditions of employment; (« lock-out »)

"mediator" means a mediator appointed by the minister under section 95; (« médiateur »)

"minister" means the member of the Executive Council charged by the Lieutenant Governor in Council with the administration of this Act; (« ministre »)

"parties" means

(a) with reference to the appointment of, or proceedings before, a conciliation officer, conciliation board, mediator or arbitration board, the employer, or employers' organization acting on behalf of the employer and the bargaining agent of the employees, who are engaged in the collective bargaining or the dispute in respect of which the conciliation officer, conciliation board, mediator or arbitration board is or is not to be appointed, and

(b) with reference to a proceeding before the board, a union, an employer, or a person, that or who is an applicant or a respondent named in the proceeding or is deemed by the board to be affected thereby; (« parties »)

"professional employee" means an employee

(a) who is, or is eligible to be, a member of a professional organization that is authorized by statute in force in Manitoba to establish qualifications for membership in the organization and the members of which, in the practise of their profession, apply specialized knowledge of a kind ordinarily acquired by a course of instruction and study resulting in graduation from a university or similar institution, and

(b) who, in the course of his employment, is required to have and applies that specialized knowledge; (« professionnel »)

"professional strikebreaker" means a person

(a) who is not involved in a dispute, and

(b) whose primary object, in the opinion of the board, is to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a lockout or legal strike; (« briseur de grève »)

"sale" in relation to a business includes a lease, transfer or other disposition of the business; (« vente »)

"strike" includes

(a) a cessation of work, or

(b) a refusal to work, or

(c) a refusal to continue to work, or

(d) a refusal to continue the standard cycle or normal pattern of operation in a place of employment, or

(e) a slow down of work, or

(f) an activity in relation to their work that is designed to restrict or limit output,

by or on the part of employees in combination or in concert or in accordance with a common understanding for the purpose of compelling their employer to agree to terms or conditions of employment or to aid other employees in compelling the employer of those other employees to agree to terms or conditions of employment; (« grève »)

"strike-related misconduct" means incitement, intimidation, coercion, provocation, infiltration, surveillance or any similar conduct intended to interfere with, obstruct, prevent, restrain or disrupt the exercise of any right under this Act in anticipation of, or during, a lockout or legal strike; (« faute reliée à une grève »)

"technological change" means

(a) the introduction by an employer into his work, undertaking or business of equipment or material of a different nature or kind than that previously used by him in the operation of the work, undertaking or business, and

(b) a change in the manner in which the employer carries on the work, undertaking or business that is directly related to the introduction of that equipment or material; (« changement technologique »)

"union" means any organization of employees formed for purposes which include the regulation of relations between employers and employees, and includes a duly organized group or federation of such organizations and for the purpose of this definition an organization may be composed of only one employee; (« syndicat »)

"unit" means an employee or a group of employees and, the expression "appropriate for collective bargaining", where used with reference to a unit, means a unit that is appropriate for collective bargaining whether it is an employer unit, craft unit, technical unit, plant unit, or any other unit and whether or not the employees therein are employed by one or more employer. (« unité »)

S.M. 2000, c. 43, s. 8; S.M. 2000, c. 45, s. 2.

Employees deemed not to cease being employees

2(1)        For the purposes of this Act, no person ceases to be an employee by reason only that he ceases to work as the result of a lockout or strike or by reason only of his dismissal contrary to this Act.

2(2)        [Repealed] S.M. 1992, c. 43, s. 2.

Use of masculine gender

2(3)        In this Act, words importing the masculine gender include unions and employers' organizations.

S.M. 1992, c. 43, s. 2.

Crown bound by Act

3           The Crown in right of Manitoba is bound by this Act.

Application of Act

4(1)        This Act applies to

(a) employees whose relations with their employers in matters to which this Act relates are ordinarily within the exclusive jurisdiction of the Legislature to regulate, in respect of the relations of those employees with their employers;

(b) the employers of those employees in their relations with those employees; and

(c) unions and employers' organizations composed of, or representing or claiming to represent, those employees or employers.

4(2)        [Repealed] S.M. 2000, c. 43, s. 8.

Subject to other Acts

4(3)        This Act is subject to

(a) The Firefighters and Paramedics Arbitration Act;

(b) The Civil Service Act;

(c) for the period from February 1, 1988 to December 21, 1989, to sections 473 and 474 of The City of Winnipeg Act, S.M. 1971, c. 105;

(d) for the period from December 22, 1989 to December 31, 2002, to sections 462 and 463 of The City of Winnipeg Act, S.M. 1989-90, c. 10;

(d.1) from January 1, 2003, to sections 169 to 173 of The City of Winnipeg Charter;

(e) section 42 of The Colleges Act;

(e.1) section 29 of The University College of the North Act;

(e.2) section 35 of The Université de Saint-Boniface Act;

(e.3) section 17 of The Manitoba Institute of Trades and Technology Act;

(f) The Public Schools Act and The Education Administration Act.

S.M. 1989-90, c. 91, s. 7; S.M. 1991-92, c. 26, s. 53; S.M. 1996, c. 32, s. 2; S.M. 2000, c. 43, s. 8; S.M. 2002, c. 39, s. 525 and 535; S.M. 2002, c. 58, s. 17; S.M. 2004, c. 16, s. 40; S.M. 2004, c. 42, s. 34 and 58; S.M. 2011, c. 16, s. 42; S.M. 2014, c. 24, s. 27.

PART I

UNFAIR LABOUR PRACTICES AND INFRINGEMENT OF RIGHTS

Union membership rights

5(1)        Every employee has the right

(a) to be a member of a union;

(b) to participate in the activities of a union; and

(c) to participate in the organization of a union.

Employer organization rights

5(2)        Every employer has the right

(a) to be a member of an employers' organization;

(b) to participate in the activities of an employers' organization; and

(c) to participate in the organization of an employers' organization.

Interference with rights

5(3)        Every person who interferes with the right of an employee under subsection (1) or the right of an employer under subsection (2) commits an unfair labour practice.

Employer's interference with union

6(1)        Subject to subsection 32(1), every employer or employers' organization, and every person acting on behalf of an employer or an employers' organization, who participates in, or interferes with, the formation, selection, or administration of a union, or the representation of employees by a union that is the bargaining agent for the employees, or contributes financial or other support to a union, commits an unfair labour practice.

6(2)        [Repealed] S.M. 1992, c. 43, s. 3.

Exception

6(3)        An employer, employers' organization or a person acting on behalf of an employer does not commit an unfair labour practice under subsection (1) by reason only that the employer, employers' organization or person

(a) permits an employee or a representative of a union to confer with any of them during working hours, or to attend to the business of the union during working hours, without deduction of time so occupied in computation of time worked for the employer, and without deduction of wages in respect of the time so occupied; or

(b) provides free transportation to representatives of a union for purposes of collective bargaining; or

(c) permits the union to use the premises of any of them for purposes of the union; or

(d) appears on an application for certification, cancellation of certification or termination of bargaining rights of a union or bargaining agent for the purposes of providing information to the board in respect of the appropriateness or size of a unit for collective bargaining; or

(e) contributes financial support to a pension, health or other welfare trust fund, the sole purpose of which is to provide pension, health or other welfare rights or benefits to employees or former employees or their dependants; or

(f) communicates to an employee a statement of fact or an opinion reasonably held with respect to the employer's business.

S.M. 1992, c. 43, s. 3.

Discrimination in hiring etc.

7           Every employer and every person acting on behalf of an employer who refuses to employ, or who discharges from employment, or who refuses to continue to employ, or who discriminates in regard to employment against, any person who

(a) was or is a member of a union; or

(b) has participated, or is participating in union activities; or

(c) was or is involved in organizing a union; or

(d) has made a complaint or filed an application under this or any other Act of the Legislature or of Parliament; or

(e) has testified or may testify in a proceeding under this or any other Act of the Legislature or of Parliament; or

(f) has made, or may make, a disclosure that may be required of him in a proceeding under any Act of the Legislature or of Parliament; or

(g) has participated in or is about to participate in a proceeding under any Act of the Legislature or of Parliament; or

(h) has exercised or is exercising his rights under this or any Act of the Legislature or of Parliament;

unless he satisfies the board that he did not refuse to employ or discharge from employment or refuse to continue to employ or discriminate in regard to employment against the person because of any of the reasons set out in clauses (a) to (h), commits an unfair labour practice.

Discrimination within unions

8           Every union and every person acting on behalf of a union who intimidates or coerces, or who discriminates in regard to employment, a term or condition of employment or membership in a union, against, or imposes a pecuniary or other penalty on, a person who

(a) has testified or may testify in any proceeding under this or any other Act of the Legislature or of Parliament; or

(b) has made or may make a disclosure that may be required of him in a proceeding under this or any other Act of the Legislature or of Parliament; or

(c) has participated in or is about to participate in a proceeding under this or any other Act of the Legislature or of Parliament; or

(d) has made a complaint or filed an application under this or any other Act of the Legislature or of Parliament; or

(e) has exercised or is exercising his rights under this or any other Act of the Legislature or of Parliament;

unless he satisfies the board that he did not intimidate or coerce, or discriminate in regard to employment, a term or condition of employment, or membership in a union against, or impose a pecuniary or other penalty on, the person because of any of the reasons set out in clauses (a) to (e), commits an unfair labour practice.

Discrimination during organizational period

9           Every employer, and every person acting on behalf of an employer who, at a time when a union is seeking to be certified as the bargaining agent of a unit of employees of the employer or is attempting to enlist members from among employees of the employer, discharges or refuses to continue to employ, or refuses to re-employ, or lays off, or transfers, or suspends, or alters the status of, an employee who is a member of the union or who has applied for membership in the union, unless he satisfies the board that the decision to discharge, to refuse to continue to employ, to refuse to re-employ, to lay off, to transfer, to suspend or to alter the status of, the employee was not in any way affected by the employee's membership in the union or application for membership in the union, as the case may be, commits an unfair labour practice.

Restriction on change of conditions on application for certification

10(1)       Where an application has been made to the board for certification of a bargaining agent for a unit of employees for an employer, if, before the application is granted, dismissed or withdrawn, the employer, without the consent of the board, and not in accordance with a collective agreement affecting those employees and in force and effect at the time, decreases or increases the rate of wages of any employee in the unit or alters any other term or condition of employment in effect at the time of the application, the employer commits an unfair labour practice.

Restriction on changes of conditions after certification

10(2)       Where a union has been certified as the bargaining agent of a unit of employees of an employer, if

(a) during the period of 90 days after the date on which the union was certified as the bargaining agent of the unit, or any extension of that period granted by the board under subsection (3); and

(b) while the certification of the bargaining agent is in effect;

the employer, without the consent of the bargaining agent and not in accordance with a collective agreement affecting those employees and in force and effect at the time, decreases or increases the rate of wages of any employee in the unit, or alters any other term or condition of employment in effect at the time of the certification, the employer commits an unfair labour practice.

Extension of period

10(3)       At any time before the expiry of 90 days after the date on which a union was certified as the bargaining agent for a unit of employees of an employer, the bargaining agent or employer may apply to the board for an extension of the period during which

(a) if the employer decreases or increases the rate of wages of an employee in the unit, or alters any other term or condition of employment in effect at the time of certification, he would commit an unfair labour practice;

(b) the union is prohibited from declaring or authorizing a strike of employees;

(c) the employer is prohibited from declaring or causing a lockout of the employees; and

(d) employees in the unit are prohibited from striking;

and the board, if it considers it will assist in the concluding of a collective agreement, may order that the period mentioned in subsection (2) be extended in respect of the bargaining agent and the employer for a single further period not exceeding 90 days.

Restrictions on changes of conditions after termination of collective agreement

10(4)       Where a collective agreement for a unit of employees has terminated, if, within 12 months after the day on which the collective agreement terminated, the employer, without the written consent of the bargaining agent for those employees and not in accordance with a collective agreement affecting those employees, decreases or increases the rate of wages of any employee in the unit or alters any other term or condition of employment in effect at the time the collective agreement terminated, the employer commits an unfair labour practice unless

(a) the certification of the bargaining agent is cancelled or the bargaining rights of the bargaining agent are terminated; or

(b) within that period the employees in the unit have gone on strike; or

(c) within that period a lockout of the employees in the unit has occurred.

Hiring permanent replacement workers

11          Every employer, and every person acting on behalf of an employer, who, prior to or during a lockout or legal strike of a unit of employees of the employer,

(a) hires, or purports to hire, or offers to hire; or

(b) indicates to the bargaining agent for the employees in the unit, or to any employee in the unit, any intention or threat to hire or to offer to hire;

any person for the purpose of performing the work normally performed by any employee in the unit for any period of time longer than the duration of the lockout or legal strike, commits an unfair labour practice.

Reinstatement after strike or lockout

12(1)       Subject to subsection (2), where

(a) an employee in a unit of employees of an employer ceases to work because the employees in the unit are locked out by the employer or because the employees in the unit are on a legal strike;

(b) a collective agreement is concluded between the employer and the union which was the bargaining agent for the employees in the unit at the time the lockout or strike commenced; and

(c) the work performed by the employee at the time the lockout or strike commenced is continued after the lockout or strike is settled;

if the employer or any person acting on behalf of the employer refuses to reinstate the employee for the employment he had at the time the lockout or strike commenced

(d) in accordance with the provisions of the collective agreement respecting employment of the employees in the unit; or

(e) in accordance with any other agreement between the employer and the bargaining agent respecting the reinstatement of the employees in the unit; or

(f) where no agreement respecting the reinstatement of the employees in the unit is reached between the employer and the bargaining agent, as work becomes available on the basis of the seniority standing of the employee in relation to the seniority of the other employees in the unit employed at the time the lockout or strike commenced;

he commits an unfair labour practice.

Defence

12(2)       An employer or person acting on behalf of an employer does not commit an unfair labour practice under this section if he or she satisfies the board that the refusal to reinstate the employee was because of conduct of the employee that was related to the strike or lockout and resulted in a conviction for an offence under the Criminal Code (Canada) and, in the opinion of the board, would be just cause for dismissal of the employee even in the context of a strike or lockout.

Available work defined

12(3)       For purposes of this section, work which becomes available after a lockout or strike is settled includes work which

(a) at the time the lockout or strike commenced, was performed by an employee in the unit who ceased to work because of the lockout or strike; and

(b) during the lockout or strike, was performed by any other person.

S.M. 1996, c. 32, s. 3; S.M. 2000, c. 45, s. 3.

Reinstatement where no collective agreement

13(1)       Where

(a) an employee in a unit of employees of an employer ceases to work because the employees in the unit are locked out by the employer or because the employees in the unit are on a legal strike;

(b) the lockout or strike ends without a collective agreement having been concluded between the employer and the union which was the bargaining agent for the employees in the unit at the time the lockout or strike commenced; and

(c) the work performed by the employee at the time the lockout or strike commenced is continued after the lockout or strike ends;

if the employer, or any person acting on behalf of the employer, refuses to reinstate the employee for the employment which the employee had at the time the lockout or strike commenced

(d) in accordance with an agreement between the employer and the bargaining agent respecting the reinstatement of the employees in the unit; or

(e) where no agreement respecting the reinstatement of the employees in the unit is reached between the employer and the bargaining agent, as work becomes available on the basis of the seniority standing of the employee in relation to the seniority of the other employees in the unit employed at the time the lockout or strike commenced;

the employer, or the person acting on behalf of the employer, commits an unfair labour practice.

End of lockout or strike

13(2)       For purposes of this section

(a) a lockout ends on the date on which the employer indicates in writing to the union which was the bargaining agent for the employees in the unit at the time the lockout commenced, that the lockout is over; and

(b) a legal strike ends on the date on which the union which was the bargaining agent for the employees in the unit at the time the strike commenced indicates in writing to the employer that the strike is over.

Other provisions applicable

13(3)       Subsections 12(2) and (3) apply with necessary modifications to this section.

Using professional strikebreaker

14(1)       Every employer or employers' organization, and every person acting on behalf of an employer or employers' organization, who or which uses, or offers to use, or purports to use, or authorizes or permits the use of, a professional strikebreaker commits an unfair labour practice.

Acting as professional strikebreaker

14(2)       Every person who acts as a professional strikebreaker commits an unfair labour practice.

14(3)       [Repealed] S.M. 1996, c. 32, s. 4.

S.M. 1996, c. 32, s. 4.

Strike-related misconduct

14.1        Every employer, employers' organization, union or employee and every person acting on behalf of an employer, employers' organization, union or employee and every other person or organization who or which engages in strike-related misconduct commits an unfair labour practice.

S.M. 1996, c. 32, s. 5.

Effect of refusal to facilitate struck employer

15(1)       An employee who is in a unit of employees of an employer in respect of which there is a collective agreement in force and who refuses to perform work which would directly facilitate the operation or business of another employer whose employees within Canada are locked out or on a legal strike is not by reason of that refusal in breach of the collective agreement or of any term or condition of his employment and is not, by reason of that refusal, subject to any disciplinary action by the employer or the bargaining agent that is a party to the collective agreement.

Where disciplinary action is unfair labour practice

15(2)       Every employer, every person acting on behalf of an employer, every bargaining agent and every person acting on behalf of a bargaining agent who imposes or seeks to impose any disciplinary action on an employee who, in the circumstances described in subsection (1), refuses to perform work of the type described in subsection (1) commits an unfair labour practice.

Referral to board

15(3)       Where a dispute arises between an employer and his employee as to whether work that an employee refuses to perform would directly facilitate the operations or business of another employer whose employees are lawfully on strike or locked out, and the dispute is not resolved, either the employer or the employee may refer the dispute to the board and its decision thereon is binding on all persons affected thereby.

Referral by minister

15(4)       Where, in the opinion of the minister, it would be advisable to determine whether work that an employee refuses or threatens to refuse to perform would directly facilitate the operations or business of another employer whose employees are lawfully on strike or locked out, the minister may refer the question to the board and its decision thereon is binding on all persons affected thereby.

Saving clause as to wages

15(5)       Nothing in this section requires an employer to pay wages to an employee for any period during which the employee refuses to perform the work for which he is employed.

Discharge, etc., for refusal to perform work of striking employee

16           Every employer and every person acting on behalf of an employer who discharges or refuses to continue to employ or refuses to re-employ or lays off or transfers or suspends or alters the status of an employee who has refused to perform all or any of the duties or responsibilities of an employee who is lawfully on strike or locked out, unless he satisfies the board that the decision

(a) to discharge; or

(b) to refuse to continue to employ; or

(c) to refuse to re-employ; or

(d) to lay off; or

(e) to transfer; or

(f) to suspend; or

(g) to alter the status of;

the employee was not in any way affected by the employee's refusal to perform the duties and functions of an employee who is lawfully on strike or locked out, commits an unfair labour practice.

Unfair labour practice by employer

17          Every employer and every person acting on behalf of an employer

(a) who denies or threatens to deny an employee

(i) because the employee ceases to work as the result of a strike or lockout not prohibited under this Act, or

(ii) because the employee ceases to work as the result of a dismissal contrary to this Act, or

(iii) because the employee exercises any right conferred upon him under this Act or any other Act of the Legislature or of Parliament,

any pension rights or benefits to which the employee is entitled or would have been entitled except for the cessation of work or the exercise of the right; or

(b) who seeks by intimidation, by coercion, by threat of dismissal or any other kind of threat, or by the imposition of a pecuniary or other penalty, or by a promise, or by a wage increase, or by altering any other term or condition of employment, or by any other means, to compel or induce any person

(i) to refrain from becoming, or to cease to be, a member or officer or representative of a union, or

(ii) to refrain from exercising any of the person's rights under this Act, or

(iii) to refrain from testifying or otherwise participating in a proceeding under this Act or any other Act of the Legislature or of Parliament, or

(iv) to refrain from making a disclosure that he may be required to make under this Act or any other Act of the Legislature or of Parliament, or

(v) to refrain from making an application or filing a complaint under this Act or any other Act of the Legislature or of Parliament;

commits an unfair labour practice.

S.M. 1992, c. 43, s. 4.

Insurance scheme

18          Where

(a) an employee in a unit of employees of an employer ceases to work because the employees in the unit are locked out by the employer or because the employees in the unit are on a legal strike; and

(b) the union which was the bargaining agent for the employees in the unit at the time the lockout or strike commenced tenders, or attempts to tender, to the employer, for the duration of the lockout or strike, the premiums in respect of a medical, dental, disability, life or other insurance scheme normally maintained by the employer on behalf of the employees in the unit;

if the employer, or any person acting on behalf of the employer, without lawful excuse,

(c) denies or threatens to deny to the employee any benefit under the insurance scheme; or

(d) cancels or threatens to cancel the insurance scheme; or

(e) refuses to accept any of the premiums tendered by the bargaining agent; or

(f) fails to remit to the insurer any of the premiums tendered by the bargaining agent;

the employer, or the person acting on behalf of the employer, commits an unfair labour practice.

Unfair labour practice by union

19          Every union, and every person acting on behalf of a union

(a) who, in any way, suspends, expels or penalizes a member because he has refused to engage in or refused to continue to engage in a strike that is prohibited under this Act; or

(b) who requires an employer to terminate the employment of an employee because the employee has been expelled or suspended from membership in the union for a reason other than a failure to pay the periodic dues, assessments and initiation fees uniformly required to be paid by all members of the union as a condition of acquiring or retaining membership in the union; or

(c) who expels or suspends an employee from membership in a union by applying to him in a discriminatory manner the membership rules of the union; or

(d) who seeks by intimidation, fraud, or coercion, or the imposition of a pecuniary or any other penalty, to compel or induce a person to become or refrain from becoming, or to seek to be, a member or officer of a union or to deprive any person of the person's rights under this Act;

commits an unfair labour practice.

S.M. 1992, c. 43, s. 5.

Duty of fair representation

20          Every bargaining agent which is a party to a collective agreement, and every person acting on behalf of the bargaining agent, which or who, in representing the rights of any employee under the collective agreement,

(a) in the case of the dismissal of the employee,

(i) acts in a manner which is arbitrary, discriminatory or in bad faith, or

(ii) fails to take reasonable care to represent the interests of the employee; or

(b) in any other case, acts in a manner which is arbitrary, discriminatory or in bad faith;

commits an unfair labour practice.

Interference with union representatives visiting employees

21(1)       Where an employee resides on land owned by, or under the control of,

(a) his employer; or

(b) a person who owns or has an interest in the land on which the operation in which the employee is employed is conducted;

if the person owning or having control of or having an interest in the land prohibits, prevents or interferes with any visit to the employee by a representative of the union to whom the board has issued a permit under this section, in accordance with the terms of the permit, for any purpose relating to the formation, organization, selection or administration of a union or solicitation of membership in the union, the person commits an unfair labour practice.

21(1.1)     [Repealed] S.M. 1990-91, c. 8, s. 2.

Issue of permit

21(2)       On application therefor, the board may issue a permit to a representative of a union to visit employees who reside on land owned by, or under the control of, their employer or a person who owns or has an interest in the land on which the operation in which the employees are employed is conducted, and the board may make the permit subject to such terms as the board deems advisable.

Visit under subsec. (1) not a trespass

21(3)       A representative of a union who visits an employee in the circumstances described in subsection (1) is not, by reason solely of going on the land for the purposes of that visit, a trespasser on the land on which the visit is made.

R.S.M. 1987 Supp., c. 19, s. 1; S.M. 1990-91, c. 8, s. 2.

Interference with communications

22(1)       Where in accordance with an agreement described in subsection (2) or an order under subsection (7), a representative of a bargaining agent which is certified to act on behalf of a unit of employees of an employer visits the employer's workplace for the purpose of communicating with any employee in the unit with respect to any matter relating to this Act or the collective agreement, if any, between the bargaining agent and the employer, if the employer, or any person acting on behalf of the employer, prohibits, prevents or interferes with the visit, the employer, or the person acting on behalf of the employer, commits an unfair labour practice.

Meetings re access agreement

22(2)       Where a bargaining agent is certified to act on behalf of a unit of employees of an employer, the bargaining agent and the employer, or their representatives, shall meet as necessary from time to time for the purpose of concluding an agreement setting out the specific terms whereby representatives of the bargaining agent may visit the employer's workplace for the purpose of communicating with the employees in the unit.

Time of first meeting

22(3)       The first of the meetings referred to in subsection (2) shall take place within 14 days of the later of

(a) the coming into force of this section; and

(b) the certification of the bargaining agent;

or at such later time as the bargaining agent and the employer may agree.

Assistance from board

22(4)       Where either the certified bargaining agent or the employer requests the board in writing to appoint a representative of the board to confer with the bargaining agent and the employer, or their representatives, for the purpose of concluding an agreement described in subsection (2), the board shall appoint a representative for that purpose, and the bargaining agent and the employer or their representatives shall, at such times and places as may be designated by the representative of the board, meet and confer with the representative of the board with a view to concluding an agreement described in subsection (2).

Access agreement

22(5)       Where the certified bargaining agent and the employer conclude an agreement described in subsection (2), they shall forthwith

(a) commit the terms of the agreement to writing; and

(b) file a copy of the agreement with the board.

Failure to conclude access agreement

22(6)       Where the certified bargaining agent and the employer fail to conclude an agreement described in subsection (2) or to renegotiate an agreement in accordance with subsection (9), either of them may apply to the board for an order authorizing representatives of the certified bargaining agent to visit the employer's workplace for the purpose of communicating with the employees in the unit.

Access order

22(7)       On hearing an application therefor, the board may issue the order referred to in subsection (6) on such terms and conditions as the board deems fair and reasonable, taking into account

(a) the legitimate interest of the employer in ensuring that the operation of the workplace is not unduly disrupted; and

(b) the legitimate interest of the certified bargaining agent in facilitating communication between its representatives and employees in the unit at the workplace;

and the board may, upon application by either party, vary the order from time to time as circumstances require.

Authorized visit not a trespass

22(8)       A representative of a certified bargaining agent who visits an employee in the circumstances described in subsection (1) is not, by reason solely of going into the employer's workplace for the purposes of that visit, a trespasser in the workplace.

Renegotiation of agreement

22(9)       Notice to renegotiate an agreement described in subsection (2) may be given by either the certified bargaining agent or the employer at the same time and in the same manner as a notice to bargain collectively in accordance with this Act, but until the agreement is renewed or revised or a new agreement is concluded between the parties, the agreement described in subsection (2) continues in full force and effect and is binding on the certified bargaining agent and the employer.

Contractual conditions restraining rights

23(1)       Every employer, employers' organization and union, and every person acting on behalf of an employer, an employers' organization or a union, who imposes any condition in a contract of employment or collective agreement seeking to restrain an employee from exercising his rights under this Part commits an unfair labour practice, and any such condition in a contract of employment or collective agreement is void.

Collective agreement conditions allowed

23(2)       Nothing in this Act prohibits the parties to a collective agreement from inserting in the collective agreement a provision requiring, as a condition of obtaining employment, membership in a specified union, or granting a preference of employment to members of a specified union or requiring the payment of dues or contributions to a specified union.

Provisions requiring discharge of employees

23(3)       Any provision in a collective agreement requiring an employer to discharge an employee because the employee is, or continues to be a member of, or engages in activities on behalf of,

(a) a specified union; or

(b) a union other than a specified union;

is void.

Bargaining with unit that is not bargaining agent

24(1)       Where a union is the bargaining agent for a unit, every employer and employers' organization, and every person acting on behalf of an employer or employers' organization, who bargains collectively for the purpose of entering into a collective agreement, or purports to enter into a collective agreement, with another union in respect of that bargaining unit commits an unfair labour practice.

Union bargaining for another union's members

24(2)       Where a union is the bargaining agent for a unit, every other union, and every person acting on behalf of another union, who bargains collectively for the purpose of entering into a collective agreement, or purports to enter into a collective agreement, with an employer or with an employers' organization on behalf of, or purporting, designed or intended to be binding upon employees in that bargaining unit, commits an unfair labour practice.

Void agreements

24(3)       Any agreement entered into as a result of an unfair labour practice committed under subsection (1) or (2) is void.

Interrogation prohibited

25(1)       Every employer, and every person acting on behalf of an employer, who inquires of an employee or of a person seeking employment with the employer whether the employee or person

(a) is a member of, or has applied for membership in, a union; or

(b) has exercised any of the employee's or person's rights under this Act;

commits an unfair labour practice.

Defence

25(2)       An employer or a person acting on behalf of an employer does not commit an unfair labour practice under subsection (1) if the employer required the information for the purpose of enabling the employer to comply with a collective agreement affecting his employees.

Not bargaining in good faith

26          Every party to collective bargaining which fails to comply with any requirement of, as the case may be, section 62 or 63 in the circumstances described therein commits an unfair labour practice.

Failure to provide information

27          Every employer, and every person acting on behalf of an employer, who fails to comply with any requirement of subsection 66(1) or (2) in the circumstances described therein commits an unfair labour practice.

Failure to co-operate in conciliation or mediation

28(1)       Every party to collective bargaining, and every representative of a party to collective bargaining, which or who fails to comply with any requirement of, as the case may be, subsection 67(3) or section 102 in the circumstances described therein commits an unfair labour practice.

Prima facie proof

28(2)       For the purposes of subsection (1), a certificate or written statement purporting to be signed by

(a) in the case of a requirement under subsection 67(3), the conciliation officer; or

(b) in the case of a requirement under section 102, the mediator or the chairperson of the conciliation board;

and stating that a party or its representative has failed to comply with the requirement, shall be admissible in evidence before the board as prima facie proof that the party or the representative has failed to comply with the requirement.

Failure to remit dues

29          Every employer, and every person acting on behalf of an employer, who fails to comply with any requirement of subsection 76(1) in the circumstances described therein commits an unfair labour practice.

29.1        [Repealed]

S.M. 1996, c. 32, s. 6; S.M. 2000, c. 45, s. 4.

Complaint alleging unfair labour practice

30(1)       Any employer, employee or other person, or any union or employers' organization, who or which alleges the commission of an unfair labour practice may file a written complaint in respect thereof with the board.

Undue delay

30(2)       The board may refuse to accept a complaint filed under subsection (1) where, in the opinion of the board, the complainant unduly delayed in filing the complaint after the occurrence, or the last occurrence, of the alleged unfair labour practice.

Disposition of complaint

30(3)       Where the board accepts a complaint filed under subsection (1), the board may

(a) refer the complaint to a representative of the board for purposes of subsection (4); or

(b) proceed directly to hold a hearing into the alleged unfair labour practice; or

(c) at any time decline to take further action on the complaint.

Duties of board representative

30(4)       A representative of the board to whom a complaint is referred under clause (3)(a) shall

(a) inquire into the alleged unfair labour practice;

(b) endeavour to effect a settlement of the complaint between the parties thereto and any other person, union or employers' organization affected by the alleged unfair labour practice; and

(c) report to the board

(i) the results of the inquiry, and

(ii) where applicable, whether the alleged unfair labour practice has been settled to the satisfaction of every person, union or employers' organization affected thereby.

Results of settlement

30(5)       Where a complaint alleging an unfair labour practice has been settled, whether through the endeavours of a board representative or otherwise, the board may issue in respect of the settlement a consent order in accordance with subsection 140(9); and every party named in the consent order which fails to comply with the terms thereof commits an unfair labour practice.

Board hearing

31(1)       Where a complaint alleging an unfair labour practice has not been settled or where the board is proceeding under clause 30(3)(b), the board may hold a hearing into the alleged unfair labour practice.

Interim order

31(2)       The board may adjourn any hearing under this section on such terms and conditions as it deems fit and may, in furtherance of the objectives of this Act or to prevent hardship to any party to the hearing, make one or more of the orders referred to in clauses (4)(a) to (i) on an interim basis, and on such terms and conditions as it deems fit, pending a final determination of the complaint.

Findings of board

31(3)       After the conclusion of a hearing under this section, the board shall decide

(a) whether any party to the hearing has committed an unfair labour practice; and

(b) where the board finds that a party has committed an unfair labour practice, whether or not any person has suffered diminution of income or other employment benefits, or any other loss, by reason of the unfair labour practice, and the amount of any such diminution of income or other employment benefits or other loss.

Remedies for unfair labour practice

31(4)       Where the board finds that a party to a hearing under this section has committed an unfair labour practice it may, as it deems reasonable and appropriate and notwithstanding the provisions of any collective agreement,

(a) order a party which is an employer to reinstate in employment any employee whose employment has been terminated by reason of the unfair labour practice; or

(b) order any party which is an employer to employ any person who has been refused employment by reason of the unfair labour practice; or

(c) order any party which is a union to reinstate as a member of the union any person whose membership in the union has been terminated by reason of the unfair labour practice; or

(d) order the party to pay to any person referred to in clause (3)(b) an amount in compensation for the diminution of income or other employment benefits or other loss suffered by the person; or

(e) where the unfair labour practice interfered with the rights of any person under this Act but the person has not suffered any diminution of income or other employment benefits or other loss by reason of the unfair labour practice, order the party to pay to the person an amount not exceeding $2,000.; or

(f) where the unfair labour practice interfered with the rights of a union, employer or employers' organization under this Act, whether or not the union, employer or employers' organization has suffered any loss by reason of the unfair labour practice, order the party to pay to the union, employer or employers' organization an amount not exceeding $2,000.; or

(g) order the party to cease and desist any activity or operation which constitutes the unfair labour practice; or

(h) order the party to rectify any situation resulting from the unfair labour practice; or

(i) order the party to do, or refrain from doing, anything that is equitable to be done or refrained from in order to remedy any consequence of the unfair labour practice; or

(j) do two or more of the things set out in clauses (a) to (i).

Effect of other proceedings

31(5)       The board may make an order against any party to a proceeding under this section whether or not the party has been convicted of an offence under any other Act of the Legislature or of Parliament, or has been sued for general or special damages or both, in respect of the act or omission which constitutes the unfair labour practice.

Unfair labour practice not offence

31(6)       An unfair labour practice is not an offence.

Freedom of speech

32(1)       Nothing in this Act deprives any person of his freedom to express his views if he does not use intimidation, coercion, threats, or undue influence or interfere with the formation or selection of a union.

Right of employer to suspend, discharge, etc.

32(2)       Except as expressly provided herein, nothing in this Act affects the right of an employer to suspend, transfer, lay-off, or discharge an employee for proper and sufficient cause.

Rights against trespassers preserved

33(1)       Subject to sections 21 and 22, nothing in this Part curtails, abridges or affects the rights of an employer who is in lawful possession of land or premises to recover damages from, or to obtain any other remedy against, a trespasser.

Disruption of operations

33(2)       Nothing in this Part authorizes any person to disrupt the ongoing operation of an employer's workplace by attempting, during the working hours of an employee at the workplace, to persuade the employee

(a) to become, or continue to be; or

(b) to refrain from becoming or continuing to be;

a member of a union.

PART II

CERTIFICATION AND BARGAINING RIGHTS

Right to apply for certification

34(1)       A union seeking to be certified as the bargaining agent for employees in a proposed unit appropriate for collective bargaining may, subject to this Act and the regulations, apply to the board for certification as the bargaining agent for employees in the proposed unit.

Where application may be made at any time

34(2)       Subject to subsection 35(3) and any regulation under clause 141(1)(d), where no collective agreement in respect of the employees in a unit is in force and no bargaining agent has been certified under this Act for employees in the unit, an application for certification as bargaining agent for the employees in the unit may be made at any time.

Application where bargaining agent previously certified

35(1)       Where no collective agreement in respect of the employees in a unit is in force but a bargaining agent has been certified under this Act for employees in the unit, no application for certification as bargaining agent for employees in the unit shall be made by another union until

(a) after the expiry of 12 months from the date on which the bargaining agent was certified; or

(b) after the expiry of 12 months from the date on which any court proceedings arising from the certification of the bargaining agent have been concluded;

whichever is the later, or

(c) the certification of the bargaining agent is cancelled.

Restrictions on applications for certification

35(2)        Where a collective agreement in respect of the employees in a unit is in force, no application for certification as bargaining agent for employees in the unit shall be made by another union

(a) during the first six months after the date on which the collective agreement became effective; or

(b) during the last three months of the term of the collective agreement; or

(c) where the collective agreement is for a term of 18 months or less, except during the three months immediately preceding the last three months of the term of the collective agreement; or

(d) where the collective agreement is for a term of more than 18 months, except during the three months immediately preceding any anniversary of the date on which the collective agreement became effective or during the three months immediately preceding the last three months of the term of the collective agreement; or

(e) where the collective agreement

(i) is for a term of one year, and

(ii) provides that it will continue to be effective for a further term of one year, or for successive terms of one year each, unless one of the parties thereto gives to each of the other parties thereto notice of termination thereof, or notice of a desire to bargain collectively with a view to the renewal or revision thereof or to the conclusion of a new collective agreement,

except during the three months immediately preceding the three months preceding any date on which the collective agreement may be terminated.

Application after termination of agreement

35(3)       Where a collective agreement has terminated and the parties thereto have either after the termination of the agreement or within three months before the termination of the agreement, bargained collectively with one another with a view to the renewal or revision of the collective agreement or the conclusion of a new collective agreement, no application for certification of a bargaining agent for employees in a unit affected by the collective agreement shall be made until after 90 days after the termination of the agreement except

(a) by the bargaining agent which was a party to the collective agreement; or

(b) with the consent of that bargaining agent.

Further restriction on applications for certification

35(4)       Where the provisions of a collective agreement affecting employees in a unit have been settled by the board under section 87, no application for certification as bargaining agent for employees in the unit shall be made by a union during the term of that collective agreement.

No application during first six months of work stoppage

35(5)       Where

(a) the employees in a unit are lawfully on strike; or

(b) the employees in the unit are lawfully locked out by their employer;

no union shall apply to the board to be certified as the bargaining agent for those employees within six months from the date of the commencement of the strike or lockout; and thereafter an application by a union to be certified as the bargaining agent for those employees shall be made only with the consent of the board.

Composition of unit during strike or lockout

35(6)       Where, after obtaining the consent of the board under subsection (5), a union applies to the board to be certified as the bargaining agent for the employees in a unit, for the purposes of the application and the holding of a vote in connection with the application, unless in the opinion of the board there are compelling industrial relations reasons to the contrary, only those employees

(a) who on the day immediately preceding the date the strike or lockout commenced were in the unit and on the payroll of the employer; and

(b) who, in the opinion of the board, have a continuing interest in the outcome of the strike or lockout;

shall be deemed to be the employees in the unit.

Notice to show cause as to change of bargaining agent

36(1)       Where within fewer than 30 days from the date of giving notice to commence collective bargaining, a collective agreement is renewed or revised or replaced by a new collective agreement, on the application of

(a) employees affected by the renewed, revised or new agreement; or

(b) any person on behalf of the employees;

the board, in its absolute discretion and notwithstanding subsection 35(2), may require the parties to the renewed, revised or new agreement, or any of them, to show cause why a union which is not a party to the renewed, revised or new agreement should not be permitted to apply to be certified as the bargaining agent for those employees in place of the union which is a party to the renewed, revised or new agreement.

Hearing and order

36(2)       Upon receipt of an application under subsection (1) the board shall

(a) fix a date, time and place for the hearing of the application;

(b) give reasonable notice of the date, time and place so fixed to the applicant and the parties to the renewed, revised or new agreement; and

(c) on the date, time and place so fixed, hear those persons notified under clause (b);

and after considering the evidence adduced before it, the board may make such order with respect to the matter as it considers just and reasonable.

Application with consent of board

37          Notwithstanding section 35, where the board is of the opinion that the employees in a unit or their employer, or both, would suffer substantial and irremediable damage or loss if it did not entertain an application for certification of a bargaining agent for employees in the unit at a time other than as authorized under section 35, and that it is not reasonable in the circumstances that the employees or the employer, as the case may be, should suffer that damage or loss, the board may receive and consider an application for the certification of a bargaining agent for the employees in the unit at any time.

Joint applications

38          Two or more unions may join in an application for certification as bargaining agent for the employees in a proposed unit appropriate for collective bargaining; and the provisions of this Act relating to an application by one union and all matters or things arising therefrom apply in respect of that application and those unions as if the application were made by one union.

Determination of appropriate unit

39(1)       Where a union applies to be certified as bargaining agent for the employees in a proposed unit and the board is satisfied upon a preliminary examination of the material filed and a review of other available facts that the matters stated in support of the application are substantially true, it shall determine whether the proposed unit in respect of which the application is made is appropriate for collective bargaining.

Powers of board on determination of unit

39(2)       In determining whether a proposed unit is appropriate for collective bargaining, the board, if it deems it appropriate to do so, may alter the description of the proposed unit and

(a) include additional employees or classes of employees; or

(b) exclude employees or classes of employees; or

(c) create two or more units appropriate for collective bargaining;

or do any two or more of those things.

Professional employees in unit

39(3)       The board shall not include professional employees practising a profession in a unit with employees who are not professional employees practising that profession unless it is satisfied that a majority of the professional employees practising that profession wish to be included in the unit; and the board may take such steps as it deems appropriate to determine whether the professional employees wish to be included in the unit.

Interim certification

39(4)       If a union has applied for certification and the board is satisfied that any dispute about the composition of the proposed unit cannot affect the union's right to certification, the board may certify the union as the bargaining agent for the unit on an interim basis pending its determination of the composition of the unit. Either party may then give notice to commence collective bargaining under section 60. Once the board determines the composition of the unit, it shall issue a final certificate to the union certifying it as the bargaining agent for the employees in the unit.

Time not to run until final certificate

39(5)       Where the board certifies a union on an interim basis under subsection (4), the time period referred to in subsection 35(1) does not begin to run until the date of final certification.

S.M. 1996, c. 32, s. 7; S.M. 2000, c. 45, s. 5.

Certification, representation vote, or dismissal

40(1)       Subject to this Part, when the board receives an application for certification and is satisfied that the employees were not subject to intimidation, fraud, coercion or threat and that their wishes for union representation were expressed freely as required by section 45, the board shall do the following when it receives an application for certification:

1.

If it is satisfied that, at the time the application was filed, 65% or more of the employees in the unit wished to have the union represent them as their bargaining agent, it shall certify the union as the bargaining agent for employees in the unit.

2.

If it is satisfied that, at the time the application was filed, at least 40% but fewer than 65% of the employees in the unit wished to have the union represent them as their bargaining agent, it shall conduct a vote among the employees in the unit in accordance with section 48.

3.

If it is satisfied that, at the time the application was filed, fewer than 40% of the employees in the unit wished to have the union represent them as their bargaining agent, it shall dismiss the application.

Board may determine voting constituency

40(1.1)     On receiving an application for certification, if the board has not as yet determined the unit that is appropriate for collective bargaining, the board may determine the voting constituency to be used for the vote mentioned in subsection (1) and, in doing so, shall take into account

(a) the description of the proposed bargaining unit included in the application for certification; and

(b) the description, if any, of the bargaining unit that the employer proposes.

Representation vote in displacement application

40(2)       Notwithstanding subsection (1), where a union is the bargaining agent for employees in a unit and another union applies to the board to be the certified bargaining agent for those employees, if the union which is the bargaining agent does not consent to or objects to the certification of the other union as the bargaining agent of those employees and the board is satisfied that, as at the date of the application, 45% or more of the employees in the unit wished to have the applicant union represent them as their bargaining agent, the board shall conduct a vote among the employees in the unit in accordance with section 48.

Certification or dismissal based on result

40(3)       Where, pursuant to a vote held in accordance with section 48, the result indicates

(a) that the majority of employees in the unit found appropriate for collective bargaining who voted on the issue wish the applicant union to represent them as their bargaining agent, the board shall certify the union as the bargaining agent for the employees in the unit; or

(b) that fewer than a majority of the employees in the unit found appropriate for collective bargaining who voted on the issue wish the applicant union to represent them as their bargaining agent, the board shall dismiss the application for certification.

S.M. 1992, c. 43, s. 6; S.M. 1996, c. 32, s. 8; S.M. 2000, c. 45, s. 6.

Discretionary certification for unfair labour practice

41          Where a union applies for certification as the bargaining agent for employees in a unit which the board determines is appropriate for collective bargaining and

(a) the board is satisfied that the employer, or any person acting on behalf of the employer, has committed an unfair labour practice as a result of which the true wishes of the employees are not likely to be ascertained; and

(b) the union has evidence of membership support adequate, in the opinion of the board, for purposes of collective bargaining;

the board may, notwithstanding section 40, certify the union as the bargaining agent for the employees in the unit.

Employees employed by two or more employers

42          Where a union applies to be certified as bargaining agent for employees in a proposed unit for collective bargaining, if the unit includes employees of two or more employers, the board shall not certify the union as the bargaining agent for the employees in the unit unless the board is satisfied that it might certify the union under this Act as the bargaining agent for those employees in the unit who are employees of each of the employers if a separate application for that purpose were made by the union in respect of the employees of each of the employers.

Employer influence

43          Where, in the opinion of the board, the administration, management or policy of a union is

(a) influenced by an employer to the extent that the fitness of the union to act as bargaining agent for employees in collective bargaining is impaired; or

(b) dominated by the employer;

an agreement entered into between that union and the employer shall be deemed not to be a collective agreement for the purposes of this Act, and the board shall not certify that union as a bargaining agent for employees of that employer.

Effect of certification

44           Subject as otherwise provided herein, where a union is certified under this Act as the bargaining agent for the employees in a unit

(a) the union immediately replaces any other bargaining agent for employees in the unit, and has exclusive authority to bargain collectively on behalf of employees in the unit and, subject to subsection 69(1), to bind them by a collective agreement until the certification of the union in respect of employees in the unit is cancelled;

(b) if another union has previously been certified as bargaining agent for employees in the unit, the certification of that other union is cancelled in respect of those employees; and

(c) if, at the time of certification, a collective agreement binding on, or entered into on behalf of, employees in the unit is in force

(i) the bargaining agent which is a party to the agreement on behalf of the employees thereafter has no rights or authority under the agreement or by virtue of this Act,

(ii) the union is substituted as a party to the agreement in place of the bargaining agent which is a party to the agreement on behalf of employees in the unit to the extent that the wording and context of the agreement permits, and

(iii) the union may, notwithstanding anything in the agreement, apply to the board for authority to terminate the agreement upon three months notice to the employer, and the board may grant such authority.

Wishes of employees

45(1)       Evidence that an employee is a member of the union as at the date of the filing of an application for certification shall, subject to subsection (4), be conclusively deemed to be evidence of the employee's wish to have the union represent the employee as his or her bargaining agent as at that date.

Minimum membership requirements

45(2)       A person is a member of a union for the purpose of an application by the union for certification if

(a) the person has joined the union within six months before the date on which the application for certification was made, by making application for membership in the union; or

(b) the person was, on the day six months before the day on which the application for certification was made, a member of the union;

and prior to the date of the application for certification the person has not terminated his or her membership in the union by taking reasonable and unequivocal steps to do so, or the membership of the person has not been terminated or suspended by the union.

Determination of union membership

45(3)       Where the board is satisfied that a union has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the board, in determining whether a person is a member of the union, shall not consider those eligibility requirements.

Information to be provided to employee

45(3.1)     A union, or a person acting on behalf of a union, that solicits the support of an employee for an application for certification shall, at the time of the solicitation, provide the employee with information respecting the amount payable, or that is reasonably expected to be payable, by a member of the union for any initiation fees and regular membership dues.

Proof of information provided

45(3.2)     Proof of compliance with subsection (3.1) may consist of the signature of the employee on a statement that the employee has been provided with information respecting

(a) any initiation fees and regular membership dues of the union; or

(b) where any such initiation fees and regular membership dues are not determined, the manner in which the initation fees and membership dues are determined;

and that the employee understands the information.

Board power re solicitation of membership

45(4)       Where a union applies to the board to be certified as the bargaining agent for employees in a unit and the board is satisfied that, in the solicitation of memberships, the union or an person acting on behalf of the union

(a) engaged in or committed acts of intimidation, fraud or coercion, or threatened to impose a pecuniary or any other penalty, to compel or induce a person to become a member of the union; or

(b) failed to comply with subsection (3.1);

the board

(c) may, in a case under clause (a), dismiss the application or order a vote to determine the wishes of the employees in the unit; and

(d) shall not, in a case under clause (b), accept the membership of an employee in the union as evidence of the wish of the employee to have the union represent the employee as bargaining agent, where the employee did not receive information in accordance with subsection (3.1).

Examination and inquiries by board

45(5)       The board may, for the purpose of determining whether employees in a unit on the date of a certification application were members of the union, make or cause to be made examinations of records and other inquiries as it deems necessary, including the holding of hearings, and may prescribe the nature of the evidence to be furnished to the board.

Board not to disclose membership evidence

45(6)       The records of a union relating to membership or any records which may disclose whether a person is or is not a member of a union produced in a proceeding before the board are for the exclusive use of the board and its representatives; and no person shall, except with the consent of the board, disclose any such records or be compelled to disclose whether a person is or is not a member of a union.

S.M. 1992, c. 43, s. 7.

Board may requisition report on appropriateness, etc.

46(1)       In any certification proceeding, the board may assign a representative of the board to gather relevant information and to prepare a report for the board related to any one or more of

(a) the appropriateness of the unit; or

(b) the employer's operations; or

(c) the facts based on which the constitutional jurisdiction of the board may be determined.

Use of report

46(2)       Where a report has been prepared under subsection (1), the board shall supply copies thereof to all parties; and the report is admissible in evidence in the certification proceeding as prima facie proof of its contents.

Representative not compellable

46(3)       Nothing in this section makes the person who prepares a report under subsection (1) a compellable witness in the certification proceeding.

Standing of employer on certification application

47(1)       For the purpose of a determination by the board of the appropriateness of a unit for collective bargaining, or for the conduct of a vote, an employer may provide the board with information, and where required by the board to provide information, the employer shall do so; but an employer has no status in the determination by the board of the wishes of employees in the unit.

Standing of employee on certification application

47(2)       Any employee in a unit proposed by a union or determined by the board to be appropriate for collective bargaining may file an objection to an application for certification by the union on the ground that there was intimidation, fraud, or coercion, or the threatened imposition of a pecuniary or any other penalty, by the union or any person acting on behalf of the union, involved in the solicitation of union memberships.

Votes

48(1)       The board may, in any certification proceeding, for purposes of satisfying itself as to the wishes of employees in a unit or in a proposed unit or as to the wishes of professional employees practising a profession in a unit or a proposed unit, order that a vote or such votes as it deems advisable be taken among the employees or among the professional employees, as the case may be.

Procedure on votes

48(2)       Where the board conducts or orders a vote under this Part, it shall

(a) describe the unit or proposed unit for the purposes of taking the vote and, where necessary, the professional employees in the unit or proposed unit practising each separate profession; and

(b) make such arrangements and give such directions as it considers necessary for the proper conduct of the vote, including the preparation of ballots, the method of casting and counting ballots, and the custody and sealing of ballot boxes.

Vote within seven days

48(3)       A vote under subsection 40(1) shall be held within seven days after the day on which the application for certification is filed with the board.

Board's power to extend time

48(4)       Despite subsection (3), the board may extend the time for taking a vote, if the board is satisfied that exceptional circumstances exist warranting an extension of the time.

Computation of time

48(5)       For the purposes of subsections (3) and (4), the period of time shall be computed not including holidays and days during which the offices of the board are not open to accept documents that may be or are required to be filed.

S.M. 1996, c. 32, s. 9.

Electioneering on voting day

48.1(1)     Where the board conducts or orders a vote under this Part, an employer or union or any person acting on behalf of an employer or union who, on the day of the vote, at the place of work or polling place,

(a) distributes printed material; or

(b) engages in electioneering;

for the purpose of influencing the vote, commits an unfair labour practice.

Electioneering by other persons

48.1(2)     Any person, other than a person referred to in subsection (1), who does anything that would be an unfair labor practice under subsection (1) if done by an employer or union is guilty of an offence.

S.M. 1992, c. 43, s. 8.

Application for cancellation or termination by employee

49(1)       An employee claiming to represent a majority of the employees in a unit represented by a bargaining agent may, subject to this section, apply to the board

(a) to cancel the certification of the bargaining agent, if it is the certified bargaining agent for the unit; or

(b) to terminate the bargaining rights of the bargaining agent, if it has not been certified.

Time for application

49(2)       An application under subsection (1) may be made at any time that an application may be made under section 35, in which case that section shall, with necessary modifications, apply to the application.

Exceptional cases

49(3)       Notwithstanding subsection (2), where the board is satisfied that the employees in a unit or their employer, or both, would suffer substantial and irremediable damage or loss if it did not entertain an application made by an employee in the unit to cancel the certification of the bargaining agent representing the employees or terminate the bargaining rights of the bargaining agent representing the employees, and that it is not reasonable in the circumstances that the employees or their employer, as the case may be, should suffer that damage or loss, the board may receive and consider an application under subsection (1) at any time.

Dismissal of application to cancel, etc.

50(1)       If the board is satisfied that fewer than 50% of the employees in the unit represented by the bargaining agent support an application made under section 49, the board shall dismiss the application.

Ordering a vote

50(2)       If the board is satisfied that 50% or more of the employees in the unit represented by the bargaining agent support an application made under section 49, the board shall conduct a vote in accordance with subsection 48(2).

Dispensing with vote

50(3)       Notwithstanding subsection (2), where the bargaining agent does not oppose an application made under section 49, and the board is satisfied that more than 50% of the employees in the unit support the application, the board may dispense with a vote and

(a) where the bargaining agent is certified, cancel the certification; or

(b) where the bargaining agent is not certified, terminate the bargaining rights;

of the bargaining agent.

Board's discretion to dismiss

50(4)       Notwithstanding subsection (2), and notwithstanding that the board is satisfied that 50% or more of the employees in the unit support an application made under section 49, the board may dismiss the application without a vote if the board is satisfied that, at a time when the employer and the bargaining agent were obliged under this Act to bargain collectively in good faith and to make every reasonable effort to conclude a collective agreement, the bargaining agent made such efforts in good faith but the employer failed or refused to make such efforts in good faith, with the result that, in the opinion of the board, the collective bargaining process has been frustrated.

Disposition of application after vote

51          Where the result of a vote held under section 50 indicates that, of the employees in the unit who vote,

(a) 50%, or fewer than 50%, support an application under section 49, the board shall dismiss the application; or

(b) more than 50% no longer wish to be represented by a certified bargaining agent, the board shall cancel the certification of the bargaining agent; or

(c) more than 50% no longer wish to be represented by a bargaining agent which has not been certified, the board shall terminate the bargaining rights of the bargaining agent.

Cancellation of certification where fraud

52          Where a union has been certified as bargaining agent for employees in a unit, if

(a) upon an application made to the board by

(i) any employee in the unit, or

(ii) the employer of the employees, or

(iii) any union which appeared before the board when the bargaining agent was certified; or

(b) after a hearing held by the board on its own motion;

the board is satisfied

(c) that the certification was obtained by the fraud of the union which was certified; and

(d) that the evidence to support the finding in clause (c)

(i) was not and could not, by the exercise of reasonable diligence, have been presented to the board in the certification proceeding, and

(ii) is such that the board would have refused to certify the union as bargaining agent for employees in the unit if the evidence had been presented to it in the certification proceeding;

the board may cancel the certification of the bargaining agent.

Cancellation for abandonment

53(1)       Where, after the expiry of 12 months from the date of certification of a bargaining agent for a unit, or after the expiry of 12 months from the date on which any court proceeding arising from the certification has been concluded, whichever is later, the board is satisfied on the application of any employee in the unit, or on its own motion, that the bargaining agent has failed to exercise its bargaining rights, the board may cancel the certification of the bargaining agent.

Employer request for investigation

53(2)       An employer may request the board to investigate whether a certified bargaining agent has failed to exercise its bargaining rights, and, following the investigation, the board may proceed in accordance with subsection (1).

Effect of cancellation of certification, etc.

54           Where the certification of a bargaining agent for a unit is cancelled by the board, or the bargaining rights of a bargaining agent for a unit are terminated by the board, the employer of the employees in the unit, notwithstanding any other provision of this Act, is not required to bargain collectively with that bargaining agent in respect of that unit, and subject to clause 44(c) any collective agreement in force and effect between the parties with respect to that unit is terminated.

PART III

SUCCESSOR RIGHTS

Merger, etc. of bargaining agent

55(1)       Where, in a proceeding before the board or on application by the union concerned, the board is satisfied that a union is, by reason of a merger, amalgamation or transfer of jurisdiction, the successor of any union which, at the time of the merger, amalgamation, or transfer of jurisdiction, was a bargaining agent, the board may

(a) declare that the successor has, or has not, acquired the rights, privileges and obligations under this Act of its predecessor; or

(b) dismiss the application.

Successor rights and obligations

55(2)       Where the board makes an affirmative declaration under subsection (1), for the purposes of this Act, the successor union acquires the rights, privileges and obligations of its predecessor under this Act or under a collective agreement or otherwise, and, without limiting the generality of the foregoing,

(a) the successor becomes the bargaining agent for the employees in any unit for which the predecessor was the bargaining agent;

(b) the successor is bound by any collective agreement which, on the date of the merger, amalgamation or transfer of jurisdiction, was binding on the predecessor with respect to employees in that unit;

(c) the successor becomes the applicant in any certification proceeding commenced by the predecessor on or before the date of merger, amalgamation, or transfer of jurisdiction, and may, subject to this Act, be certified by the board as the bargaining agent for the unit in respect of which the application was made; and

(d) the successor union becomes, or is entitled to become, a party to any other proceedings taken under this Act, including proceedings under a collective agreement, which are pending on the date on which the merger, amalgamation, or transfer of jurisdiction takes place to which the predecessor union was, or was entitled to be, a party.

Effective date of declaration

55(3)       A declaration made under subsection (1) shall have effect from a time, before or after the date of the application, determined by the board.

Sale of business

56(1)       Subject to subsection (2), where an employer sells the employer's business to another person, for the purposes of this Act, the person to whom the business is sold acquires the rights, privileges and obligations of the predecessor employer under this Act or under a collective agreement or otherwise and, without limiting the generality of the foregoing,

(a) any union which is the bargaining agent for any of the employees employed in the business continues to be the bargaining agent for those employees;

(b) a union which, on or before the date on which the business was sold, applied for certification for a proposed unit which includes any employees employed in the business may, subject to this Act, be certified by the board for the unit found appropriate by the board;

(c) the person to whom the business is sold is bound by any collective agreement which was, on the date on which the business was sold, applicable to any of the employees employed in the business; and

(d) the person to whom the business is sold becomes, or is entitled to become, a party to any proceeding taken under this Act, including any proceeding under a collective agreement, which is pending on the date on which the business is sold, to which the predecessor employer was, or was entitled to be, a party.

Amending certificate, etc. where intermingling

56(2)       Where

(a) an employer sells the employer's business;

(b) at the time of the sale, a union is bargaining agent for any of the employees employed in the business, or a union has made an application described in clause (1)(b); and

(c) the employees of the predecessor employer are intermingled with employees of the person to whom the business is sold; and whether or not those employees, were, on the day the business was sold, members of a unit represented by a bargaining agent;

the board may, on application by any bargaining agent affected by the intermingling or on its own motion,

(d) determine whether the employees affected constitute one or more units appropriate for collective bargaining;

(e) determine which union shall be the bargaining agent for the employees in each such unit and, if the board considers it necessary or advisable to do so, it may order a vote to determine the wishes of the employees in the unit or units it considers appropriate, and if it does so, subsections 48(2) and (3) apply with necessary modifications;

(f) amend, to the extent the board considers necessary, any certificate issued to a bargaining agent, or, if there is no certificate, any provision in a collective agreement which describes the scope of the unit covered by the collective agreement;

(g) prescribe such modifications or restrictions as the board considers necessary or advisable to the operation or effect of any of the provisions of any collective agreement which is, at the time of the sale, binding on any of the employees in the units determined to be appropriate under clause (d), taking into account the extent to which and the fairness with which those provisions have been or could be applied to the employees affected

(i) in order to remove any inconsistencies or conflicts between two or more collective agreements or resulting from the intermingling, and

(ii) in order to define or re-define the seniority rights under a collective agreement of the employees affected by the sale;

(h) give any further direction the board considers necessary or advisable as to the interpretation or application of a collective agreement affecting the employees in a unit affected by the sale; and

(i) declare that any determination, amendment, prescription or direction under clauses (d) to (h) shall have effect from a time, before or after an application under this subsection is made, as determined by the board.

Application to open collective agreement

56(3)       Notwithstanding subsection (2), where an employer sells the employer's business and the employees of the business are intermingled with employees of the employer to whom the business is sold, where the board is of the opinion that a bargaining agent, the employees in a unit or their employer, or any of them, would suffer substantial and irremediable damage or loss if the bargaining agent or the employer or both were not permitted to serve notice upon the other party to commence collective bargaining with a view to the revision of the collective agreement or the conclusion of a new collective agreement between them, and that it is not reasonable in the circumstances that the bargaining agent, the employees or the employer, as the case may be, should suffer that damage or loss, the board may make an order authorizing any party to give notice to bargain and to terminate a collective agreement in such manner and upon such notice as may be specified in the order.

S.M. 2002, c. 47, s. 10.

Duty on parties to alleged sale

57          Where, on an application made under section 56 or in any other proceeding before the board, a union alleges that a sale of a business has occurred, the parties involved in the alleged sale shall adduce at the hearing all facts within their knowledge which are material to the allegation.

Merger or amalgamation of businesses

58          Sections 56 and 57 apply with necessary modifications where two or more businesses are amalgamated or merged.

Business coming under provincial law is bound by collective agreement

58.1        Unless the board orders otherwise, if collective bargaining relating to a business is governed by the laws of Canada and the business is sold and becomes subject to the collective bargaining laws of Manitoba, sections 56 to 58 apply with necessary modifications, and the person to whom the business is sold is bound by any collective agreement that is in force when the business becomes subject to the laws of Manitoba and that applies to any of the employees employed in the business.

S.M. 2000, c. 21, s. 2.

Associated businesses, etc.

59(1)       Where, on application by any person or in any other proceeding before the board, the board is satisfied that associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than one corporation, individual, firm, syndicate or association, or a combination of them, under common control or direction, the board may treat them as constituting one employer for the purposes of this Act and grant such relief, by way of declaration or otherwise, as it may deem appropriate.

Duty on affected parties

59(2)       Where on the hearing of an application or in the course of a proceeding referred to in subsection (1) it is alleged that more than one corporation, individual, firm, syndicate, association or any combination thereof are or were under common control or direction, the parties affected by the allegation shall adduce all facts within their knowledge which are material to the allegation.

Effective date of determination

59(3)       A determination or declaration made under subsection (1) shall have effect from such time, before or after the date of the application or motion, as determined by the board.

PART IV

COLLECTIVE BARGAINING AND COLLECTIVE AGREEMENTS

COMMENCING COLLECTIVE BARGAINING

Requisition to commence collective bargaining

60          Where a union has been certified as a bargaining agent for employees in a unit, and no collective agreement with the employer binding on, or entered into on behalf of, employees in the unit, is in force,

(a) the bargaining agent may, by notice, require the employer to commence collective bargaining; or

(b) the employer or an employers' organization representing the employer may, by notice, require the bargaining agent to commence collective bargaining;

with a view to the conclusion of a collective agreement in respect of the employees in the unit.

Notice to commence collective bargaining for renewal, etc., of agreement

61(1)       Subject to subsection (2) not more than 90 days and not less than 30 days next preceding the date of expiry of the term of, or preceding the termination of, a collective agreement, whether entered into before or after the coming into force of this Act, a party thereto may by notice require the other party thereto to commence collective bargaining with a view to the renewal or revision of the collective agreement or the conclusion of a new collective agreement.

Provision of different period of notice

61(2)        Where a collective agreement provides for a period of notice to commence collective bargaining that is longer or shorter than the period required under subsection (1), that provision of the agreement has effect in respect of notice to commence collective bargaining given under the agreement or this Act.

Notice to revise agreement open to revision

61(3)       Where a collective agreement provides that any or a specific provision thereof is subject to revision during the term thereof, a party thereto may, subject to any provision of the collective agreement by notice require the other party thereto to commence collective bargaining with a view to the revision of any or the specific provision of the collective agreement.

Obligation to negotiate

62          Where notice to commence collective bargaining has been given under section 60, the certified bargaining agent and the employer, or employer's organization representing the employer, shall without delay, but in any case within 10 clear days after the notice was given or such further time as the parties may agree, meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith with one another, and shall make every reasonable effort to conclude a collective agreement.

Effect of notice under section 61

63(1)       Where a party to a collective agreement has given notice under section 61 or subsection 83(3) to the other party to the collective agreement the parties shall, without delay, but in any case within 10 clear days after the notice was given or such further time as the parties may agree on, meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith and make every reasonable effort to conclude a renewal or revision of the collective agreement or a new collective agreement.

Effect of notice to revise, etc.

63(2)       Where

(a) a collective agreement provides that it will continue to be in effect after a specific period or for successive periods unless one of the parties thereto gives to the other parties notice of termination; and

(b) one of the parties to the collective agreement gives to the other parties notice thereunder to bargain collectively with a view to the renewal or revision of the collective agreement or the conclusion of a new collective agreement;

the notice to bargain collectively shall, subject to subsection (3) or unless the collective agreement provides otherwise, be deemed not to be notice of termination of the collective agreement.

Termination by strike or lockout

63(3)       A notice to bargain collectively given in the circumstances described in subsection (2) shall be deemed to be notice of termination of the collective agreement given under the termination provisions of the collective agreement for purposes of any strike by, or lockout of, the employees in the unit in respect of which the collective agreement is in force, and any strike or lockout which commences after the deemed date of termination of the collective agreement resulting from the notice is not contrary to this Act and immediately terminates the collective agreement.

Effect of notice under 61(3)

63(4)       Where a party to a collective agreement has given notice under subsection 61(3), if a revision of any or the specific provision of the collective agreement to which the notice relates is not agreed upon by the parties to the collective agreement within 90 days after the day on which the notice was given, or such longer or shorter period as the collective agreement may provide, a party thereto may give notice of termination of the collective agreement to the other party thereto, and thereupon the collective agreement is terminated as of the day on which the notice of termination is given or on such other later day as the notice of termination may specify.

More than one notice under subsection (4)

63(5)       Where two or more parties to a collective agreement give notices of termination of the collective agreement under subsection (4), the collective agreement is terminated as of the earliest of

(a) the dates specified in the notices of termination for termination; or

(b) the dates on which any notices of termination that do not specify a date for termination were given.

Powers of board

64          Where a party to a collective agreement has given notice under section 61 to the other party to the collective agreement, if an application for certification of a new bargaining agent for the employees in the unit affected by the collective agreement is pending, or the board is considering the cancellation of the certification or the termination of the bargaining rights of the bargaining agent for the employees, it may order that collective bargaining be suspended until a decision has been made respecting the application, the cancellation or the termination.

Limitation on withdrawal from bargaining

65          Where collective bargaining has been entered into under section 62 or 63, a party so bargaining collectively shall not discontinue, or withdraw from, the collective bargaining on the ground that no notice, or improper or insufficient notice, has been given under section 60 or 61.

Information as to employees

66(1)       Where a bargaining agent has been certified to represent employees in a unit of employees of an employer and no collective agreement has been concluded between the bargaining agent and the employer, the employer shall, within 21 days of any request therefor by the bargaining agent, supply the bargaining agent with a list of all employees in the unit indicating

(a) the job title or classification of each employee;

(b) the rate of pay in each classification and any other benefits to which the employees in each classification are entitled under their terms and conditions of employment; and

(c) the cost to the employer of all the benefits to which the employees in each classification are entitled under their terms and conditions of employment.

Information during collective agreement

66(2)       Where

(a) a collective agreement is in force between an employer and a bargaining agent for employees in a unit of employees of the employer; and

(b) at least one year has expired after any previous request made by the bargaining agent under this section;

the employer shall, within 21 days of any request therefor by the bargaining agent, supply the bargaining agent with a list of all employees in the unit indicating the information referred to in subsection (1).

Board may extend time limit

66(3)       Prior to the expiration of the time prescribed in, as the case may be, subsection (1) or (2) for the employer to comply with a request made by the bargaining agent thereunder, the employer may apply to the board for an extension of the time prescribed therein, and where the board is satisfied that the employer cannot reasonably comply with the request within the prescribed time, the board may extend the time on such terms and conditions as it considers appropriate.

Other obligations

66(4)       The obligations imposed on an employer by this section are in addition to, and not in substitution for, any other obligation imposed on the employer by this Act, and nothing in this section shall be interpreted to restrict or extinguish any such other obligation, including the obligation to bargain in good faith under section 62 or 63.

CONCILIATION

Appointment of conciliation officer

67(1)       Where

(a) a notice to commence collective bargaining has been given under this Act, and

(i) collective bargaining has not commenced within the time prescribed herein; or

(ii) collective bargaining has commenced;

and either party thereto requests the minister in writing to appoint a conciliation officer to confer with the parties thereto to assist them to conclude a collective agreement or a renewal or revision thereof, and the request is accompanied by a statement of the difficulties, if any, that have been encountered before the commencement or in the course of the collective bargaining; or

(b) in any case in which, in the opinion of the minister, it is advisable so to do;

the minister shall appoint a conciliation officer to confer with the parties engaged in collective bargaining.

Functions on conciliation

67(2)        Forthwith after being appointed under subsection (1), the conciliation officer shall confer with the parties to the collective bargaining and shall endeavour to bring about agreement between them in relation to all matters referred.

Conciliation meetings

67(3)       Each party or its representatives shall, on the request of a conciliation officer appointed under subsection (1),

(a) meet and confer with the conciliation officer and the other party or its representatives at such times and places as may be designated by the conciliation officer; and

(b) make known to the conciliation officer terms and conditions which are acceptable to the party as provisions of a collective agreement.

Report to minister

68(1)       Within 30 days after being appointed under subsection 67(1), or within such longer period as may be agreed upon by the parties or allowed from time to time by the minister, the conciliation officer shall make a report to the minister setting out

(a) the matters, if any, upon which the parties cannot agree; and

(b) the recommendations, if any, of the conciliation officer as to what further proceedings might be taken to facilitate settlement between the parties.

Exceeding time limit

68(2)       Failure of a conciliation officer to report to the minister within the time prescribed under subsection (1) does not invalidate the proceedings of the conciliation officer or terminate the authority of the conciliation officer under this Act.

Report not admissible

68(3)       A report made by a conciliation officer under subsection (1) is not admissible in evidence before the board or in any court in the province, in any matter or proceeding under a statute or law of the province or otherwise within the jurisdiction of the Legislature, and the conciliation officer is not a competent or compellable witness with respect thereto.

Report to board re first collective agreement

68(3.1)     Where the appointment of a conciliation officer under subsection 67(1) is in respect of a first collective agreement and, after conferring with the parties, the conciliation officer

(a) is satisfied that the parties have made reasonable efforts to conclude a collective agreement; and

(b) is of the opinion that the parties are not likely to conclude a collective agreement;

the conciliation officer may, after the expiry of 90 days and before the expiry of 120 days from the day of the appointment, for the purpose of subsection 87(1), notify the board and the parties in writing that the parties, after making reasonable efforts, have not been able to conclude a first collective agreement.

No liability

68(4)       No conciliation officer is liable for any loss or damage suffered by any person by reason of any action or omission of the conciliation officer in the discharge of the duties of the conciliation officer under this Act.

Remuneration for conciliation officers

68(5)       A conciliation officer who is not employed by the government under The Civil Service Act shall be paid such remuneration as may be fixed by the minister.

S.M. 1992, c. 43, s. 9.

RATIFICATION VOTES

Vote to accept or reject proposed agreement

69(1)       Where as a result of bargaining collectively a bargaining agent for a unit of employees and the employer of those employees, or an employers' organization acting on behalf of the employer, reach agreement on the renewal or revision of the collective agreement between them or the provisions of a first or a new collective agreement, the bargaining agent shall, within 30 days of the reaching of agreement between the parties, cause to be held a vote by secret ballot

(a) of the employees in the unit; or

(b) in the case of the construction industry, of the members of the union in the craft unit;

to determine whether they accept or reject the proposed collective agreement.

Definition of "construction"

69(1.1)     For the purpose of subsection (1), "construction" has the same meaning as in The Construction Industry Wages Act.

Notice and opportunity to cast ballot

69(2)       The bargaining agent shall give the employees in the unit or craft unit who may vote

(a) reasonable notice of a vote under subsection (1); and

(b) a reasonable opportunity to cast a ballot in the vote.

Majority determines question

69(3)       A majority of those employees in the unit or craft unit who may vote and who cast ballots on the question of acceptance or rejection of the proposed collective agreement shall determine the question.

Exceptions

69(4)       This section does not apply to

(a) any collective agreement the provisions of which are settled by the board or an arbitrator under section 87 or 87.3, or by arbitration under The Public Schools Act;

(b) unless the parties thereto provide otherwise in the collective agreement, any amendment to a provision of a collective agreement made by the parties during the term of, or prior to the termination of, the collective agreement.

S.M. 1996, c. 32, s. 10; S.M. 2000, c. 45, s. 10.

Complaint about ratification vote

70(1)       Any employee who may vote under subsection 69(1) may make a complaint to the board alleging a failure to comply with a requirement of section 69.

Remedy

70(2)       Where the board finds that a complaint under subsection (1) is justified, it may make any order it considers appropriate to secure compliance with section 69, including an order directing that a vote, or a new vote, be held under subsection 69(1).

Board order final

70(3)       Any order made by the board under subsection (2) is final and binding on the parties to the proposed collective agreement and the employees in the unit affected thereby.

Deemed compliance

70(4)       Where no complaint under subsection (1) is filed with the board within 15 days after a vote held in purported compliance with section 69, the vote shall be conclusively deemed to have been carried out in accordance with the requirements of section 69.

S.M. 1996, c. 32, s. 11; S.M. 2000, c. 45, s. 11.

Rejection of proposed collective agreement

71          Where a vote under subsection 69(1) rejects a proposed collective agreement, notwithstanding anything in this Act,

(a) the proposed collective agreement is not binding on the parties thereto or any employee in the unit; and

(b) if as a result of further collective bargaining the parties reach agreement on a subsequent proposed collective agreement which differs from the collective agreement rejected in the vote, the bargaining agent shall cause to be held a vote under subsection 69(1) in respect of the subsequent proposed collective agreement.

S.M. 1996, c. 32, s. 12; S.M. 2000, c. 45, s. 12.

Binding collective agreement

72(1)       Where a vote under subsection 69(1) accepts a proposed collective agreement, the proposed collective agreement becomes, subject to and for the purposes of this Act, a collective agreement which is binding upon

(a) the bargaining agent and every employee in the unit to which the collective agreement applies; and

(b) the employer who has entered into the collective agreement or on whose behalf it has been entered into.

Execution and filing

72(2)       The parties to a collective agreement referred to in subsection (1) shall, forthwith after the vote held under subsection 69(1),

(a) commit the terms of the collective agreement to writing;

(b) execute and deliver, each to the other, a copy of the collective agreement; and

(c) file two copies of the collective agreement with the board;

and the parties shall comply in a like manner with respect to any amendment to the collective agreement which they make during the term or prior to the termination thereof.

Saving

72(3)       Failure by the parties, or either of them, to comply with subsection (2) does not invalidate any proceedings under the collective agreement or this Act.

S.M. 1996, c. 32, s. 13; S.M. 2000, c. 45, s. 13.

72.1(1)     [Repealed] S.M. 2000, c. 45, s. 14.

Minister may require ratification vote

72.1(2)     If at any time before or after the commencement of a strike or lockout the minister is of the opinion that it is in the public interest for employees in the affected unit to be given the opportunity to accept or reject the offer of the employer last received by the union respecting all matters remaining in dispute between the parties, the minister may, on any terms and conditions that he or she considers necessary, order that a vote of the employees in the unit to accept or reject the offer be held immediately.

Board to conduct vote

72.1(3)     The board shall conduct any vote ordered by the minister under this section.

Board to determine all questions

72.1(4)     The board shall determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.

Consequences of favourable vote

72.1(5)     If a majority of the employees participating in the vote accept the employer's last offer, the provisions of section 72 apply with any necessary modifications.

S.M. 1996, c. 32, s. 14; S.M. 2000, c. 45, s. 14.

COLLECTIVE AGREEMENTS

Agreements open to public inspection

73(1)       Subject to subsection (2), every collective agreement filed with the board under this Act is open to public inspection after 14 days have expired from the date of filing.

Exemption

73(2)       Upon application by either party within the 14 day period referred to in subsection (1), the board may declare that a collective agreement shall not be open to public inspection, or that it shall be open to restricted public inspection, as the board deems appropriate in order to prevent undue prejudice to either party to the collective agreement.

Agreement deemed for term of one year

74(1)       Notwithstanding anything therein contained, every collective agreement, shall, if for a term of less than a year, be deemed to be for a term of one year from the date upon which it came into operation, or if for an indeterminate term shall be deemed to be for a term of at least one year from that date; and no agreement to which this subsection applies shall, except as provided by section 44, section 54, subsection 63(4) or subsection 83(3), or with the consent of the board, be terminated by the parties thereto within a period of one year from that date.

Extension of term of collective agreement

74(2)       Notwithstanding subsection (1), where a collective agreement does not contain a provision of the kind described in clause 63(2)(a) the parties may, in the collective agreement or otherwise and before or after the term of the collective agreement has expired, agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while they are bargaining for its renewal or revision or for a new collective agreement, but either party may, upon 48 hours notice to the other party, terminate the continued operation of the collective agreement.

Revision during term of agreement

75          Subject to section 74, nothing in this Act prevents the parties to a collective agreement from agreeing to amend a provision of the collective agreement during the term thereof.

COMPULSORY CHECK-OFF

Compulsory check-off

76(1)       Every collective agreement entered into, revised or renewed, between a union and an employer shall contain a provision requiring the employer

(a) to deduct from the wages of each employee in the unit affected by the collective agreement, whether or not the employee is a member of the union, the amount of the regular membership dues payable by a member of the union, except that where the employee is not a member of the union the amount deducted shall not include any portion of such dues that is payable in respect of pension, superannuation, sickness, insurance or other benefits that are available only to persons who are or have been members of the union or in respect of special assessments payable by members of the union;

(b) to remit the amounts deducted under clause (a) to the union monthly or as may be provided in the collective agreement; and

(c) to inform the union, monthly or as may be provided in the collective agreement, of the names of the employees from whose wages deductions have been made under clause (a) and the amounts so deducted from each employee's wages.

Where not in agreement

76(2)       Where a collective agreement entered into, revised or renewed, between a union and an employer does not contain a provision as required under subsection (1), it shall be deemed to contain such a provision and the employer shall comply with the provision.

Determination re religious objector

76(3)       An employee in a unit in respect of which a collective agreement is in force may apply to the board for a determination that

(a) the employee is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of, and financially supporting, any union or professional association; and

(b) the employee has a personal belief in those articles of faith;

and where the board makes the determination,

(c) the union which is a party to the collective agreement ceases to be obligated under this Act or the collective agreement to represent or act on behalf of the employee;

(d) the employer of the employee shall deduct from the employee's wages the amount required under clause (1)(a), but, notwithstanding clause (1)(b) and subsection (2), shall remit the amount so deducted to a charity agreed upon by the employee and the union, or if no such agreement can be reached, to a charity designated by the board; and

(e) the employer is not, by reason solely of complying with clause (d), in breach of any provision of the collective agreement which requires the deduction of regular dues from the wages of the employee and the remittance thereof to the union.

76.1        [Repealed]

S.M. 1996, c. 32, s. 15; S.M. 2000, c. 45, s. 17.

Application of closed shop agreement to conscientious objector

77          Where

(a) a collective agreement in respect of a unit of employees of an employer provides for membership in a union as a condition of employment or continued employment or provides for preference of employment to a member of a union; and

(b) an employee in the unit in respect of which the collective agreement is in effect satisfies the board that

(i) the employee is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of, and financially supporting, any union or professional association, and

(ii) the employee has a personal belief in those articles of faith;

the board may, on application of the employee, by order exempt the employee from complying with that provision of the collective agreement and in that case the employer may employ or continue to employ or grant preference in employment to, that employee without being in breach of the collective agreement.

S.M. 1996, c. 32, s. 16.

GRIEVANCE ARBITRATION

Provision for final settlement

78(1)       Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties thereto, or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning, application, or alleged violation.

Deemed arbitration provisions

78(2)       Where a collective agreement does not contain a provision as required under subsection (1), it shall be deemed to contain the following provisions, which shall be numbered or lettered as may be required in the collective agreement:

(a) Where a violation of this agreement is alleged, or a difference arises between the parties to this agreement relating to the dismissal or discipline of an employee, or to the meaning, interpretation, application or operation of this agreement (including a difference as to whether or not a matter is arbitrable), either party, without stoppage of work and after exhausting any grievance procedure established by this agreement, may notify the other party in writing of its desire to submit the alleged violation or difference to arbitration; and thereafter the parties shall, subject to clause (b), agree on an arbitrator to hear and determine the matter and issue a decision, which decision is final and binding on the parties and any person affected thereby.

(b) Where the parties agree that an arbitration board rather than an arbitrator should determine a matter, the parties shall appoint an arbitration board to hear and determine the matter and issue a decision, which decision is final and binding on the parties and any person affected thereby.

(c) The provisions of The Labour Relations Act respecting the appointment, powers, duties and decisions of arbitrators and arbitration boards apply hereto.

Modification of settlement provision

78(3)        Where, in the opinion of the board, any part of the final settlement provision in a collective agreement required under subsection (1), including the method of appointment of an arbitrator or arbitration board, is inadequate, or the provisions set out in subsection (2) or the provisions of this Act respecting the appointment, powers, duties and decisions of arbitrators or arbitration boards are unsuitable in any particular case, the board, on the application of a party to the collective agreement, may modify any such provision in such manner as not to conflict with subsection (1); but, until so modified, the final settlement provision required under subsection (1), or the arbitration provisions set out in subsection (2), as the case may be, applies or apply.

Final settlement provision binding

78(4)       Every party to and every person bound by a collective agreement, and every person on whose behalf the collective agreement was entered into, shall comply with, as the case may be, the final settlement provision required under subsection (1) or the arbitration provisions set out in subsection (2), and shall fulfill all of the party's or person's other obligations under the collective agreement.

Continuation of final settlement provision

78(5)       Notwithstanding that a collective agreement is no longer in force, the final settlement provision thereof required under subsection (1) or the arbitration provisions set out in subsection (2), as the case may be, continues or continue in force after the expiry of the term, or the termination, of the collective agreement in respect of every event which occurred during the term, or prior to the termination, of the collective agreement.

Just cause provision

79(1)       Every collective agreement shall contain a provision requiring that the employer have just cause for disciplining or dismissing any employee in the unit bound by the collective agreement.

Deemed just cause provision

79(2)       Where a collective agreement does not contain a provision as required under subsection (1), it shall be deemed to contain the following provision:

The employer shall not discipline or dismiss any employee bound by this agreement except for just cause.

Exception for probationary period

79(3)       Where the parties so provide in the collective agreement, the provision which is required or deemed to be in the collective agreement under this section shall not apply to the probationary period of any employee in the unit bound by the collective agreement.

No application to dismissal of teachers

79(4)       This section does not apply to the dismissal of teachers governed by Part VII of The Public Schools Act.

S.M. 2000, c. 43, s. 8.

OBLIGATION TO ACT FAIRLY AND CONSULT

Obligation to act fairly, etc.

80(1)       Every collective agreement shall contain a provision obliging the employer, in administering the collective agreement, to act reasonably, fairly, in good faith, and in a manner consistent with the collective agreement as a whole.

Deemed fairness provision

80(2)       Where a collective agreement does not contain a provision as required under subsection (1), it shall be deemed to contain the following provision:

In administering this agreement, the employer shall act reasonably, fairly, in good faith, and in a manner consistent with the agreement as a whole.

80(3)       [Repealed] S.M. 1992, c. 43, s. 10.

S.M. 1992, c. 43, s. 10.

Consultation during collective agreement

81(1)       Where

(a) notice to bargain collectively has been given by a bargaining agent, employer or employers' organization under section 60 or 61, or parties have begun to bargain collectively; and

(b) any party affected by the notice or engaged in the collective bargaining sends to the other party a written request that the collective agreement contain a provision requiring the parties thereto to have ongoing consultations during the term thereof respecting issues relating to the workplace which affect the parties or any employee in the unit bound by the collective agreement;

the parties shall include such a provision in the collective agreement.

Deemed consultation provision

81(2)       Where either party has made a written request in accordance with subsection (1) but the parties cannot reach agreement respecting the provision required thereunder to be included in the collective agreement, the collective agreement shall be deemed to contain the following provision:

During the term or prior to the termination of this agreement, the parties shall, at the request of either party, meet at least once every two months for the purpose of discussing issues relating to the workplace which affect the parties hereto or any employee bound hereby.

VOLUNTARY INTEREST ARBITRATION

Agreed provisions for settlement of disputes in bargaining

82(1)       Subject to subsection (2), where a collective agreement includes a provision setting out a procedure for the final settlement without stoppage of work, by arbitration or otherwise, of any dispute arising in collective bargaining entered into by the parties to the collective agreement for the purpose of renewing or revising the collective agreement, or entering into a new collective agreement,

(a) that provision applies to such disputes arising between the parties whether before or after the termination of the collective agreement; and

(b) the provisions of this Act respecting procedures in collective bargaining in so far as they are inconsistent with that provision of the collective agreement do not apply to the parties to the collective agreement.

Provision not to be arbitrated

82(2)       Where a collective agreement includes a provision setting out a procedure for the final settlement without stoppage of work, by arbitration or otherwise, of any dispute arising in collective bargaining entered into by the parties to the collective agreement for the purpose of renewing or revising the collective agreement or concluding a new collective agreement, if a party to the collective agreement refuses to settle a dispute concerning the inclusion of that type of provision in a renewed or revised collective agreement or new collective agreement in accordance with that provision, a provision of that type shall not be included in the renewed or revised collective agreement or the new collective agreement.

TECHNOLOGICAL CHANGE

Notice of technological change

83(1)       Where an employer who is bound by a collective agreement affecting a unit of his employees proposes to effect a technological change that is likely to affect the terms and conditions, or the security, of employment of a significant number of employees in the unit or to alter significantly the basis upon which the collective agreement was negotiated, he shall give notice of the technological change to the bargaining agent bound by the collective agreement at least 90 days before the date on which the technological change is to be effected.

Contents of notice

83(2)       The notice referred to in subsection (1) shall be in writing and shall state

(a) the nature of the technological change;

(b) the day on which the employer proposes to effect the technological change;

(c) the approximate number and type of employees likely to be affected by the technological change; and

(d) the effect that the technological change is likely to have on the terms and conditions, or security, of employment of the employees affected or the alteration that is likely to be made to the basis upon which the collective agreement was negotiated.

Notice to bargain

83(3)       Where an employer gives notice under subsection (1), the bargaining agent bound by the collective agreement may serve notice upon the employer to commence collective bargaining with a view to the revision of the collective agreement or the conclusion of a new collective agreement, and thereupon the collective agreement in effect at the time the notice is given terminates on the earlier of

(a) the date of expiry thereof; or

(b) the day 90 days after the day on which the notice to commence collective bargaining is served upon the employer;

unless it is renewed prior thereto.

Arbitration of effect of technological change

84          Where an employer bound by a collective agreement affecting a unit of employees proposes to effect a technological change, he may submit to arbitration the question of whether the technological change is likely to affect the terms and conditions, or security, of employment of a significant number of employees in the unit or to alter significantly the basis upon which the collective agreement was negotiated; and if the arbitration board finds, in its award, that the technological change is likely to affect the terms and conditions, or security, of employment of a significant number of employees in the unit or to alter significantly the basis upon which the collective agreement was negotiated, the award of the arbitration board shall be deemed to be notice of the technological change given under subsection 83(1) to the bargaining agent bound by the collective agreement on the day on which the award is made and subsection 83(3) applies with such modifications as the circumstances require.

Failure to serve notice

85(1)       Where an employer who is bound by a collective agreement affecting a unit of his employees fails to give notice of a proposed technological change in accordance with subsection 83(1) the bargaining agent may submit to arbitration the question of whether the employer

(a) has effected a technological change that affected or was likely to affect the terms and conditions, or security, of employment of a significant number of employees in the unit or that altered or was likely to alter significantly the basis upon which the collective agreement was negotiated; or

(b) proposes, within 90 days after the submission of the question to arbitration, to effect a technological change that is likely to affect the terms and conditions, or security, of employment of a significant number of employees in the unit or to alter significantly the basis upon which the collective agreement was negotiated.

Effect of affirmative award

85(2)       Where an arbitration board to which a question has been submitted under subsection (1) finds in its award that the employer has effected or proposes, within 90 days of the date upon which the question was submitted to arbitration, to effect a technological change that affected or is likely to affect the terms and conditions, or security, of employment of a significant number of employees in the bargaining unit or that altered or is likely to alter significantly the basis upon which the collective agreement was negotiated, the award of the arbitration board shall be deemed to be notice by the employer given under subsection 83(1) on the day on which the award is made and subsection 83(3) applies with such modifications as the circumstances require.

Application of sections 83, 84 and 85

86          Sections 83, 84 and 85 do not apply to an employer and a bargaining agent who are bound by a collective agreement where

(a) the employer has given to the bargaining agent a notice in writing of the technological change that is substantially in accordance with subsection 83(2)

(i) not less than four days before the day on which the employer and the bargaining agent revised or renewed the collective agreement or entered into the collective agreement; or

(ii) not later than four days before the last day on which notice requiring the parties to commence collective bargaining for the purpose of entering into the collective agreement could have been given pursuant to section 61, if no notice was given under that section; or

(b) the collective agreement contains provisions that specify procedures by which any matters that relate to terms and conditions or security of employment likely to be affected by technological change may be negotiated and finally settled during the term of the agreement; or

(c) the collective agreement contains provisions that

(i) are intended to assist employees affected by any technological change to adjust to the effects of the technological change, and

(ii) specify that sections 83, 84 and 85 do not apply during the term of the collective agreement to the employer and the bargaining agent; or

(d) the collective agreement was concluded before this section came into force; or

(e) the employer and the bargaining agent agree by way of an agreement that is ancillary or supplementary to the collective agreement that the employer may make the technological change.

SETTLEMENT OF FIRST AGREEMENTS

Dispute re first agreement

87(1)       Where

(a) an employer or bargaining agent for a unit is required, by notice given under section 60 after the coming into force of this section, to commence collective bargaining with a view to the conclusion of a first collective agreement between the employer and the bargaining agent in respect of the unit;

(b) a conciliation officer appointed under subsection 67(1) has notifed the board and the parties under subsection 68(3.1), or 120 days have expired since the appointment;

(c) a period of 90 days after the certification of the bargaining agent, and any period of extension that may be ordered in respect of the bargaining agent and the employer under subsection 10(3), have expired; and

(d) the bargaining agent and the employer have not concluded a first collective agreement;

the bargaining agent or the employer may apply in writing to the board to settle the provisions of a first collective agreement between the parties and, where a party so applies, the board shall as soon as practicable serve notice on the parties of receipt of the application.

Agreement to proceed by arbitration

87(2)       Within 10 days after being served with notice under subsection (1), the bargaining agent and employer may serve notice on the board of

(a) the agreement of the bargaining agent and employer to conclude the first collective agreement by arbitration; and

(b) the name of a person who has agreed to act as arbitrator.

Arbitrator to settle first collective agreement

87(2.1)     Within 60 days after a notice is served on the board under subsection (2), the arbitrator shall settle the provisions of the first collective agreement.

Application of provisions respecting arbitrator

87(2.2)     The provisions of this Act respecting arbitration apply with necessary modifications to an arbitrator acting under this section.

Conclusion of collective agreement by board

87(3)       Where an application is made under subsection (1) and the parties do not agree to proceed by arbitration under subsection (2), the board shall inquire into the negotiations between the parties and, where the parties do not conclude a first collective agreement within 60 days after the date of the application, the board shall, within a further three days

(a) settle the provisions of a first collective agreement between the parties; or

(b) notify the parties in writing that, in the opinion of the board, the parties might, either through their own endeavours or with the assistance of the conciliation officer, conclude a first collective agreement within 30 days after the date of the notice under this clause, and that therefore the board declines to settle the provisions of a first collective agreement between the parties.

Failure of parties to conclude agreement

87(4)       Where the board sends a notice to the parties under clause (3)(b) and the parties fail to conclude a first collective agreement within the 30 day period referred to therein, the board shall, within a further 30 days, settle the provisions of a first collective agreement between the parties.

Termination of strike or lockout

87(5)       Where an application under subsection (1) is made during a strike by, or a lockout of, employees in the unit, the employees shall forthwith terminate the strike or the employer shall forthwith terminate the lockout, and the employer shall reinstate the employees in the unit in the employment they had at the time the strike or lockout commenced

(a) in accordance with any agreement between the employer and the bargaining agent respecting reinstatement of the employees in the unit; or

(b) where no agreement respecting reinstatement of the employees in the unit is reached between the employer and the bargaining agent, on the basis of the seniority standing of each employee in relation to the seniority of the other employees in the unit employed at the time the strike or lockout commenced, except as may be directed by an order of the board made for the sole purpose of allowing the employer at a totally shut-down workplace to resume normal operations in stages.

Procedure for settling agreement

87(6)       In settling the provisions of a first collective agreement under this section, the board or arbitrator shall accept, without amendment, any provisions agreed upon in writing by the parties and shall give the parties an opportunity to present evidence and make representations, and the board or arbitrator may take into account

(a) the terms and conditions of employment, if any, negotiated through collective bargaining for employees performing the same or similar functions in the same or similar circumstances as the employees in the unit; and

(b) such other matters as the board or arbitrator considers will assist in arriving at provisions of a first collective agreement between the parties which are fair and reasonable in the circumstances.

Term of first agreement

87(7)       Where the board or an arbitrator settles the provisions of a first collective agreement under this section, the collective agreement shall be effective for a period one year from the date on which the board or arbitrator settles the provisions thereof, and the collective agreement shall be binding on the parties and on the employees in the unit as though it were a collective agreement voluntarily entered into between the parties, except to the extent that any of its provisions may be amended by the parties by subsequent agreement in writing.

Agreement in writing

87(8)       The board or arbitrator shall commit to writing every collective agreement settled under this section, and section 73, with necessary modifications, applies to the collective agreement.

S.M. 1992, c. 43, s. 11.

SETTLEMENT OF SUBSEQUENT AGREEMENTS

Dispute about subsequent agreements

87.1(1)     Where a collective agreement has expired and a strike or lockout has commenced, the employer or the bargaining agent for a unit may apply in writing to the board to settle the provisions of a collective agreement if

(a) at least 60 days have elapsed since the strike or lockout commenced;

(b) the parties have attempted to conclude a new collective agreement with the assistance of a conciliation officer or mediator for at least 30 days during the period of the strike or lockout; and

(c) the parties have not concluded a new collective agreement.

Notice

87.1(2)     The board shall promptly notify the parties when it receives an application.

Board to determine if good faith bargaining

87.1(3)     On receiving an application, the board shall inquire into negotiations between the parties and determine

(a) whether or not they are bargaining in good faith in accordance with subsection 63(1); and

(b) whether or not they are likely to conclude a collective agreement within 30 days if they continue bargaining.

Determination within 21 days

87.1(3.1)   Except in the circumstance mentioned in subsection (4), the board shall make its determination under subsection (3) within 21 days after it has notified the parties of the application, even if an unfair labour practice complaint has been filed under subsection 30(1) alleging a failure to bargain in good faith under subsection 63(1).

Discretion of board

87.1(4)     The board may delay making a determination under subsection (3) until it is satisfied that the party making the application has bargained sufficiently and seriously with respect to those provisions of the collective agreement that are in dispute between the parties.

S.M. 2000, c. 45, s. 23; S.M. 2004, c. 31, s. 2.

No settlement if good faith bargaining and agreement is likely

87.2(1)     If the board finds under subsection 87.1(3) that the parties are bargaining in good faith and are likely to conclude a collective agreement within 30 days if they continue bargaining, it shall decline to settle the provisions of a collective agreement between them and notify them of that fact. The board may, however, appoint a board representative, or request the minister to appoint a conciliation officer, to confer with the parties to assist them in settling the provisions of a collective agreement.

New application if no agreement within further 30 days

87.2(2)     If 30 days have elapsed since notice was given under subsection (1) and the parties have failed to conclude a collective agreement, either party may make a new application to the board under subsection 87.1(1).

S.M. 2000, c. 45, s. 23.

Settlement

87.3(1)     If the board determines under subsection 87.1(3) that the party making an application under subsection 87.1(1) is bargaining in good faith but that a new collective agreement is unlikely to be concluded within 30 days if the parties continue to bargain,

(a) the employees shall immediately terminate any strike;

(a.1) the employer shall immediately terminate any lockout;

(b) the employer shall reinstate the employees as provided for in subsection 87(5); and

(c) the provisions of a collective agreement between the parties shall be settled

(i) by an arbitrator, if the parties serve a notice of their wish for arbitration under subsection (2), or

(ii) by the board within 90 days of its finding, in any other case.

New application

87.3(1.1)   If the board determines under subsection 87.1(3) that the applicant party is not bargaining in good faith, that party may at any time after the determination is made make a new application under subsection 87.1(1) for the board to settle the provisons of a collective agreement.

Arbitration

87.3(2)     Within 10 days after a determination by the board that the applicant party is bargaining in good faith but that a new collective agreement is unlikely to be concluded through further bargaining, the employer and the bargaining agent may serve a notice on the board stating that they wish to have the collective agreement settled by arbitration. The notice must name a person who has agreed to act as arbitrator.

Arbitrator to settle collective agreement

87.3(3)     The arbitrator shall settle the provisions of the collective agreement within 60 days after notice is served on the board under subsection (2).

Arbitration provisions of this Act apply

87.3(4)     The provisions of this Act respecting arbitration apply, with necessary modifications, to an arbitrator acting under this section.

Term of collective agreement

87.3(5)     Subject to subsection (5.1), a collective agreement settled by an arbitrator or the board under this section is effective for a period of one year following the expiry date of the previous collective agreement, or for any longer period the parties agree to.

Extension of term of agreement

87.3(5.1)   A collective agreement settled by an arbitrator or the board more than six months following the expiry date of the previous collective agreement shall remain in effect for six months following the date of settlement.

Collective agreement binding

87.3(6)     A collective agreement settled under this section is binding on the parties and on the employees in the unit as though it were a collective agreement voluntarily entered into between the parties, but the parties may nevertheless amend its provisions by a subsequent written agreement.

Subsections 87(6) and (8) apply

87.3(7)     Subsections 87(6) and (8) apply, with necessary changes, to the settlement of a collective agreement under this section.

S.M. 2000, c. 45, s. 23; S.M. 2004, c. 31, s. 3.

Review

87.4        The minister shall request the Manitoba Labour Management Review Committee to review the operation of sections 87.1 to 87.3 at least once in each 24-month period after those sections come into force and provide a report to the minister setting out their findings. The minister shall table the report in the Legislative Assembly as soon as possible after receiving it.

S.M. 2000, c. 45, s. 23.

PART V

LOCKOUTS AND STRIKES

Lockout offence by employer

88(1)       Every employer who declares or causes a lockout contrary to this Act is guilty of an offence and is liable, on summary conviction, to a fine of not more than $1,000. for each day that the lockout exists.

Lockout offence on behalf of employer

88(2)       Every person acting on behalf of an employer who declares or causes a lockout contrary to this Act is guilty of an offence and is liable, on summary conviction, to a fine of not more than $500.

Strike offence by union

88(3)       Every union that declares or authorizes a strike contrary to this Act is guilty of an offence and is liable, on summary conviction, to a fine of not more than $1,000. for each day that the strike exists.

Strike offence on behalf of union

88(4)       Every officer or representative of a union who declares or authorizes or participates in a strike that is contrary to this Act is guilty of an offence and is liable, on summary conviction, to a fine of not more than $500.

Strike offence by employee

88(5)       Every employee who contrary to this Act, strikes or participates in a strike is guilty of an offence and liable on summary conviction to a fine of not more than $500.

Restriction on strikes etc., after certification

89(1)       Where a union has been certified as the bargaining agent of a unit of employees of an employer, and no collective agreement has been concluded between the union and the employer respecting the unit,

(a) the union shall not declare or authorize a strike of the employees;

(b) the employer shall not declare or cause a lockout of the employees; and

(c) no employee in the unit shall strike;

during the period of 90 days after the date on which the union was certified as the bargaining agent of the unit and any period of extension that may be ordered in respect of the bargaining agent and the employer under subsection 10(3).

Restriction on strikes etc., under collective agreement

89(2)       Where a union as the bargaining agent of a unit of employees of an employer and the employer have concluded a collective agreement respecting the unit,

(a) the union shall not declare or authorize a strike of the employees;

(b) the employer shall not declare or cause a lockout of the employees; and

(c) no employee in the unit shall strike;

while the collective agreement is in force.

Trade union not entitled to bargain not to declare strike

90          A trade union that is not entitled to bargain collectively under this Act, by virtue of certification or by virtue of being a party to a collective agreement on behalf of a unit of employees, shall not declare or authorize a strike of employees in that unit.

Where employer not to declare lockout

91          An employer shall not lock out employees

(a) who are not in a unit for which a bargaining agent has been certified; and

(b) who are not in a unit in respect of which a collective agreement has been in force and by reason of which a bargaining agent has bargaining rights.

Where employee not covered by bargaining rights

92          No employee

(a) who is not in a unit for which a bargaining agent has been certified; and

(b) who is not in a unit in respect of which a collective agreement has been in force and by reason of which a bargaining agent has bargaining rights;

shall strike.

Restriction on strikes until strike vote held

93(1)       Notwithstanding that a strike by the employees in a unit is otherwise not prohibited by this Act,

(a) the union which is the bargaining agent for the unit shall not declare or authorize a strike; and

(b) no employee in the unit shall participate in a strike;

unless the union conducts a strike vote in accordance with this section and a majority of employees in the unit who cast ballots vote in favour of a strike.

Who can vote

93(2)       For purposes of a strike vote under this section, the voting constituency is the unit represented by the bargaining agent.

Notice and opportunity to cast ballot

93(3)       The bargaining agent shall give the employees in the unit

(a) reasonable notice of a strike vote; and

(b) a reasonable opportunity to cast a ballot in the strike vote.

Secret ballot

93(4)       Every strike vote shall be taken by secret ballot.

Disputes

93(5)       Any person entitled to vote under subsection (2) who alleges a failure to comply with this section may file a complaint in respect thereof with the board, and subsections 70(2) to (4), with necessary modifications, apply to every such complaint.

Vote in favour of strike not binding

93(6)       A vote in favour of a strike under this section does not oblige a bargaining agent to declare or authorize a strike.

Suspension or discontinuance of operations

94          Nothing in this Act prohibits the suspension or discontinuance of operations in an employer's workplace, in whole or in part, where the suspension or discontinuance does not constitute a lockout or strike and is for a cause not contrary to this Act.

PART V.1

94.1 to 94.7[Repealed]

R.S.M. 1987, Supp., c. 19, s. 2; S.M. 1990-91, c. 8, s. 2.

PART VI

MEDIATION, CONCILIATION BOARDS AND INDUSTRIAL INQUIRY COMMISSIONS

Appointment of mediator on joint request

95(1)       Where collective bargaining has commenced, if the parties jointly request the minister, in writing, to appoint a mediator, the minister shall appoint a mediator to endeavour to bring about agreement between them. Where the request names a mediator that the parties have selected jointly, the minister shall appoint that person.

Appointment on request of one party

95(1.1)      Where collective bargaining has commenced, either party may request the minister, in writing, to appoint a mediator, and the minister may appoint a mediator to endeavour to bring about agreement between them if he or she considers it advisable to do so.

Appointment on minister's initiative

95(2)       Where collective bargaining has commenced, and where, in the opinion of the minister, it is advisable to do so, notwithstanding that the parties have not jointly requested the appointment of a mediator in accordance with subsection (1), the minister may appoint a mediator to endeavour to bring about agreement between the parties.

S.M. 2000, c. 45, s. 24.

Mediator deemed legally appointed

96          Where the minister has appointed a mediator under this Act, it shall be conclusively deemed that the mediator was appointed legally and in accordance with this Act; and no order shall be made, or process entered, or proceedings taken, in any court to question the appointment or to review, prohibit or restrain the appointment or any of the proceedings of the mediator.

Appointment of conciliation board

97(1)       Where a conciliation officer fails to bring about agreement between parties engaged in collective bargaining, or in any other case where, in the opinion of the minister, a conciliation board should be appointed to endeavour to bring about agreement between parties to a dispute, the minister may appoint a conciliation board for that purpose.

Three members on conciliation board

97(2)       A conciliation board appointed under this Act shall consist of three members appointed in the manner provided in section 98.

Nomination by parties

98(1)       Where the minister has decided to appoint a conciliation board, the minister shall forthwith, by notice in writing, require each of the parties to the dispute within seven days after receipt by the party of the notice, to nominate one individual to be a member of the conciliation board, and upon receipt of the nomination within the seven days, the minister shall appoint that individual to be a member of the conciliation board.

Disqualification of certain individuals

98(2)       No individual who has a pecuniary interest in any matter before the conciliation board or who is acting, or has, within a period of one year prior to establishment of the conciliation board, acted as solicitor, counsel, or agent for any of the parties to the dispute, is eligible for nomination to, or appointment as a member of, the conciliation board or shall act as a member of the conciliation board.

Where no nomination, minister appoints member

98(3)       Where either party to which notice is given under this section fails or neglects to nominate an individual within seven days after receipt of the notice, the minister shall appoint as a member of the conciliation board an individual the minister deems fit for the purpose, and that member shall be deemed to be appointed on the recommendation of that party.

Chairperson nominated by other two members

98(4)       The two members appointed under subsection (1) or, where applicable, subsection (3) shall, within five days after the day on which the second of them is appointed, nominate a third individual, who is willing and ready to act, to be a member of the conciliation board, and the minister shall appoint that individual to be a member of the conciliation board, and that individual shall act as chairperson of the conciliation board.

Failure to nominate third member

98(5)       Where the two members appointed under subsection (1) or, where applicable, subsection (3) fail or neglect to nominate a third member within five days after the appointment of the second member, the minister shall forthwith appoint as the third member of the conciliation board an individual whom the minister deems fit for that purpose, and that individual shall act as chairperson of the conciliation board.

Parties notified of members' names

98(6)       When the conciliation board has been appointed, the minister shall forthwith notify the parties to the dispute of the names of the members of the conciliation board.

Action on individual's ceasing to be member

98(7)       Upon an individual's ceasing to be a member of a conciliation board before it has completed its work, the minister shall appoint in the place of the individual a member who shall be selected in the manner prescribed by this Act for the selection of the individual who has so ceased to be a member.

Upon notice given board presumed duly established

98(8)       Where the minister has given notice to the parties that a conciliation board has been appointed under this Act, it shall be conclusively presumed that the conciliation board described in the notice has been established in accordance with this Act; and no order shall be made, or process entered, or proceedings taken, in any court to question the granting or refusal of a conciliation board, or to review, prohibit, or restrain establishment of that conciliation board or any of its proceedings.

Oath of office

99          Each member of a conciliation board and each mediator shall, before acting as such, take and subscribe before a person authorized to administer an oath or affirmation for use in the province, and file with the minister, an oath or affirmation in the following form:

"I do solemnly swear (or affirm) that I will faithfully, truly, impartially, and to the best of my knowledge, skill, and ability, execute and perform the office of member of the conciliation board (or office of mediator) appointed in respect of a dispute between                 and                            and will not, except in the discharge of my duties, disclose to any person any of the evidence or other matter brought before the said board (or me).  So help me God".  (Omit last four words where person affirms.)

Statement of reference

100         Where the minister has appointed a conciliation board or a mediator, the minister

(a) shall forthwith deliver to the conciliation board or mediator a statement of the matters referred; and

(b) may, before or after the receipt of the report required under subsection 103(1), amend or add to the statement.

Obligation of conciliation board or mediator

101(1)      Immediately after appointment, the conciliation board or mediator shall endeavour to bring about agreement between the parties in relation to all matters referred.

Procedure

101(2)      Except as otherwise provided in this Act, a conciliation board or a mediator may determine the procedure to be followed in discharging the obligation under subsection (1), but shall give full opportunity to all parties to the matter referred to present evidence and make representations.

Parties to meet with mediator and conciliation board

102         Where the minister appoints a mediator or a conciliation board, each party or its representatives shall, on the request of the mediator or the conciliation board,

(a) meet and confer with the mediator or conciliation board and the other party or its representatives at such times and places as may be designated by the mediator or the conciliation board; and

(b) make known to the mediator or the conciliation board terms and conditions which are acceptable to the party as provisions of a collective agreement.

Report to minister within specified time

103(1)      Each conciliation board and mediator shall, within thirty days after appointment or within such longer period as may be agreed upon by the parties or allowed from time to time by the minister, make a report to the minister setting out

(a) the matters, if any, upon which the parties cannot agree;

(b) recommendations as to what, if any, further proceedings might be taken to facilitate settlement between the parties; and

(c) in the case of a conciliation board, a statement of the sittings of the board, and of the members and witnesses present at each sitting.

Failure to report within time limit

103(2)      Failure of a conciliation board or a mediator to report to the minister within the time prescribed in subsection (1) does not invalidate the proceedings of the conciliation board or mediator, or terminate the authority of the conciliation board or mediator under this Act.

Majority report of conciliation board

103(3)      The report of the majority of its members is the report of a conciliation board, and if there is no report common to a majority of the members, the report of the chairperson of the conciliation board shall be deemed to be the report of the conciliation board.

Copy of report to parties

104         On receipt of the report of a conciliation board or a mediator, the minister

(a) shall forthwith cause a copy thereof to be sent to the parties; and

(b) may direct the conciliation board or mediator to reconsider and clarify or amplify the report or any part thereof, or to consider and report on any matter added to or amended in the statement of matters referred to the conciliation board or mediator under section 100.

Publication of report of conciliation board or mediator

105         The minister may cause the report of a conciliation board or mediator to be published in such manner as the minister sees fit.

Report binding by agreement

106         Where a conciliation board or a mediator has been appointed and, at any time before or after a report is made, the parties agree in writing to be bound by and give effect to the recommendations of the conciliation board or mediator, as the case may be, the recommendations of the conciliation board or the mediator, as the case may be, are binding on the parties and they shall give effect thereto.

Report and proceedings not evidence in other matters

107(1)      A report made by a conciliation board or mediator under section 103 and testimony or proceedings before a conciliation board or a mediator are not admissible in evidence before the board or in any court in the province, in any matter or proceeding under a statute or law of the province or otherwise within the jurisdiction of the Legislature; and the members of a conciliation board and the mediator are not competent or compellable witnesses with respect thereto.

Where subsection (1) not applicable

107(2)      Subsection (1) does not apply to proceedings taken to enforce a recommendation of a conciliation board or a mediator which has become binding on the parties in accordance with section 106.

No liability

107(3)      No mediator and no member of a conciliation board is liable for any loss or damage suffered by any person by reason of any action or omission of the mediator or member in the discharge of the duties of the mediator or member under this Act.

Times and places of sittings of conciliation board

108(1)      The chairperson of a conciliation board may, after consultation with the other members, fix the times and places of sittings and shall notify the parties as to the times and places so fixed.

Quorum of conciliation board

108(2)      The chairperson and one other member of a conciliation board are a quorum; but in the absence of a member, the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.

Majority decision of conciliation board

108(3)      The decision of a majority of the members present at a meeting of a conciliation board is the decision of the conciliation board; and if the votes are equal the chairperson has a casting vote.

Powers of conciliation board and mediator

109(1)      A conciliation board and the members thereof and a mediator have, in respect of any matters referred by the minister under section 100, all the like powers, privileges, and rights as are conferred upon commissioners apointed under Part V of The Manitoba Evidence Act, including power

(a) to summon and enforce the attendance of witnesses and to require them to give oral or written evidence on oath or affirmation; and

(b) to require witnesses to produce such documents and things as the conciliation board or mediator deems requisite to a full investigation and consideration of the matter.

Receiving evidence

109(2)      A conciliation board or mediator may receive and accept such evidence on oath, affidavit, or otherwise as the conciliation board or the mediator may deem fit and proper whether admissible in evidence in a court of law or not.

Secrecy of information

109(3)      Information obtained from documents or things produced to a conciliation board or mediator as provided in subsection (1) shall not, except as the minister deems expedient, be made public.

Offence

109(4)      Any person served with a written summons under subsection (1) who fails to appear and give evidence on oath or affirmation or to produce documents and things as required by the summons, is guilty of an offence.

Witness fees

109(5)      Every person, except a witness summoned at the request of a party, who is summoned by a conciliation board or mediator, and who duly attends as a witness, is entitled to an allowance for expenses determined in accordance with the scale for the time being in force with respect to witnesses in civil suits in the Queen's Bench.

Entry and inspection

110         A mediator or a conciliation board, or a person who has been authorized for that purpose in writing by a conciliation board, may, without any other warrant than this section, at any time during normal working hours, enter a building, ship, vessel, factory, workshop, place or premises of any kind wherein work is being or has been done or commenced by employees, or in which an employer carries on business, or any matter or thing is taking place or has taken place, concerning the matters referred to the mediator or conciliation board, and may inspect and view any work, material, machinery, appliance, or article therein, and interrogate any person in any such place, or upon any such matter or thing hereinbefore mentioned; and no person shall hinder or obstruct the mediator or conciliation board, or any person authorized as aforesaid, in the exercise of a power conferred by this section, or refuse to answer an interrogation made as aforesaid.

Remuneration for conciliation boards and mediators

111(1)      Members of conciliation boards and mediators shall be paid such remuneration as may be fixed by the minister.

Payment of remuneration and expenses

111(2)      The remuneration and expenses of a conciliation board, its members, and a mediator appointed under subsection 95(2), including expenses incurred for accounting, clerical and stenographic assistance, and witness fees, shall be paid from and out of the Consolidated Fund with moneys authorized by an Act of the Legislature to be paid and applied for the purposes of this Act.

Clerical assistance

111(3)      Subject to The Civil Service Act, the minister may provide a conciliation board or mediator with a secretary, stenographer, and such clerical or other assistance as to the minister seems necessary to assist the conciliation board or mediator in discharging the duties imposed by this Part.

Costs of mediator

111(4)      The remuneration and expenses of a mediator appointed under subsection 95(1) or (1.1) shall be paid as follows:

(a) 1/3 of the amount shall be paid out of the Consolidated Fund with moneys authorized by an Act of the Legislature to be paid and applied for the purposes of this Act; and

(b) 2/3 of the amount shall be paid in equal shares by the parties.

S.M. 1996, c. 32, s. 17; S.M. 2000, c. 45, s. 25.

List of mediators

112         The minister may establish and maintain a list of persons who have, in the opinion of the minister, qualities and experience which make them suitable persons to act as mediators in collective bargaining or disputes and who have indicated to the minister their willingness to act in all or any of those capacities, and the minister may make the list available to parties to collective bargaining or disputes.

Ministerial powers

113(1)      The minister may, either upon application or on the minister's own initiative, where the minister deems it expedient, make or cause to be made any inquiries regarding industrial matters, and may do such things as seem calculated to maintain or secure industrial peace and to promote conditions favourable to settlement of disputes.

Reference to industrial inquiry commission

113(2)      For any of the purposes of subsection (1), or where a dispute or difference between employers and employees exists or is apprehended, the minister may refer the matter involved to a commission, to be designated as an industrial inquiry commission, for investigation thereof or mediation thereof or both as the minister deems expedient, and for report thereon, and shall furnish the commission with a statement of the matters concerning which the inquiry is to be made, and, in the case of an inquiry involving any particular persons or parties, shall advise those persons or parties of the appointment.

Function and powers of commission and report

113(3)      Immediately following its appointment, an industrial inquiry commission shall inquire into the matters referred to it by the minister and shall endeavour to carry out its terms of reference; and, in the case of a dispute or difference in which a settlement has not been effected in the meantime, the report of the result of its inquiries, including its recommendations, shall be made to the minister within thirty days of its appointment or within such longer period as may from time to time be allowed by the minister.

Copies of report to parties

113(4)      Upon receipt of a report of an industrial inquiry commission relating to any dispute or difference between employers and employees, the minister shall furnish a copy to each of the parties affected and may publish it in such manner as the minister sees fit.

Constitution of commission

113(5)      An industrial inquiry commission appointed under this section shall consist of one or more members appointed by the minister and sections 99, 100, 109, 110, 111, subsection 103(2) and clause 104(b) apply with necessary modifications, as though enacted in respect of that commission, and the commission may determine its own procedure but shall give full opportunity to all parties to present evidence and make representations.

PART VII

GRIEVANCE ARBITRATION

Appointment of arbitrator

114         Where

(a) either party to a collective agreement submits to arbitration a matter which, by virtue of clause 78(2)(a) of this Act or a provision of the collective agreement between the parties, will be heard and determined by an arbitrator; and

(b) within the time prescribed therefor in the collective agreement, or where no such time is prescribed, within 10 days of the submission of the matter to arbitration, the parties are unable to agree on an arbitrator to hear and determine the matter;

the board shall, on the request of either party, appoint an arbitrator to hear and determine the matter.

Appointment of arbitration board

115(1)      Where

(a) either party to a collective agreement submits to arbitration a matter which, by virtue of clause 78(2)(b) of this Act or a provision of the collective agreement between the parties, will be heard and determined by an arbitration board; and

(b) the collective agreement does not provide for the appointment of the arbitration board;

the arbitration board shall consist of three individuals appointed in the manner provided in this section.

Nomination by initiating party

115(2)      The party which submits the matter for determination by an arbitration board shall, in the document submitting the matter to arbitration, name an individual to be a member of the arbitration board.

Nomination of second member

115(3)      Within five days of receiving the document submitting the matter for determination by an arbitration board, the other party to the arbitration shall name an individual to be a member of the arbitration board.

Appointment of chairperson

115(4)      Within five days of the appointment of the second of them, the two members of the arbitration board named by the parties shall appoint a third member of the arbitration board who shall be chairperson thereof.

Appointment by board

115(5)      Where

(a) either party to the arbitration fails to name an individual to be a member of the arbitration board; or

(b) the two individuals named as members of the arbitration board by the parties fail to agree on the appointment of a chairperson;

within the applicable time prescribed in this section, the board shall, on the request of either party and as the case requires, appoint the individual, the chairperson, or both.

Failure to comply with agreement

115(6)      Where a party submits a matter for arbitration by an arbitration board under a collective agreement which provides for the appointment of the arbitration board, but one or more individuals required to be appointed to the arbitration board is or are not appointed thereto within the time prescribed therefor in the collective agreement, the board shall, on the request of either party, make the required appointment or appointments to the arbitration board.

Disqualification of certain individuals

116         Unless the parties agree otherwise, no person is eligible to be appointed or to act as an arbitrator, or as the chairperson or other member of an arbitration board, in respect of a matter submitted to arbitration if the person

(a) has a pecuniary interest in the matter; or

(b) has, within a period of one year prior to the date on which the matter was submitted to arbitration, acted as solicitor, counsel or agent for any of the parties to the arbitration; or

(c) has been appointed under subsection 129(1) or under the collective agreement between the parties as a grievance mediator with respect to the matter.

Effect of appointment

117(1)      A person appointed by the board as an arbitrator under section 114 or as the chairperson or other member of an arbitration board under subsection 115(5) shall be deemed to have been appointed in accordance with the collective agreement between the parties to the arbitration.

List of arbitrators

117(2)      After such consultation with representatives of employers and employees as it considers necessary, the board may establish and maintain a list of persons who have, in its opinion, qualities and experience which make them suitable persons to act as arbitrators or chairpersons of arbitration boards and who have indicated their willingness to so act, and the board may make the list available to parties to collective bargaining and disputes.

Appointment notwithstanding certain objections

118         Where either party to a collective agreement submits a matter to arbitration, the parties shall proceed to appoint the arbitrator or arbitration board notwithstanding that the other party to the collective agreement claims that there has been a failure to comply with

(a) any time limit; or

(b) any restriction relating to the time or location of meetings; or

(c) any requirement relating to the service or filing of documents;

imposed under the collective agreement or this Act, and, at the request of either party, the arbitrator or arbitration board shall hear and determine any or all of the matters referred to in clauses (a) to (c) as part of the arbitration proceeding.

Expenses of arbitration

119         Unless the collective agreement between them provides otherwise, each party to an arbitration shall pay

(a) one-half of the remuneration and expenses of the arbitrator or chairperson of the arbitration board;

(b) where an arbitration board is conducting the arbitration, the remuneration and expenses of the member of the arbitration board named by or appointed on behalf of that party;

(c) the fees and expenses of witnesses called by that party to give evidence before the arbitrator or arbitration board;

(d) the fees and expenses of any counsel appearing on behalf of that party before the arbitrator or arbitration board; and

(e) one-half of other costs and expenses incurred by the arbitrator or arbitration board in conducting the arbitration.

Powers of arbitrator or arbitration board

120(1)      An arbitrator or arbitration board has, in respect of any matter submitted to arbitration, power

(a) to determine procedures to be followed in the arbitration, provided that the parties have opportunity to present evidence and make representations with respect to the matter;

(b) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath or affirmation and to produce such documents and things as are deemed requisite to the full investigation and consideration of the matter;

(c) to administer oaths and affirmations;

(d) to receive and accept such evidence and information on oath, by affidavit, or otherwise as the arbitrator or arbitration board deems fit, whether the evidence or information is admissible in a court of law or not;

(e) to require any party, during or prior to any hearing held or to be held in respect of the matter, to produce documents which are or may be relevant to the matter and to furnish particulars of any allegation, statement or position made or taken by the party;

(f) to determine any question as to whether the matter is arbitrable;

(g) to grant an adjournment of any hearing into the matter on such terms as appear just and equitable to the arbitrator or arbitration board; and

(h) to set fixed dates for hearings, for which an adjournment may not be granted.

Powers of chairperson of arbitration board

120(2)      The chairperson of an arbitration board may do any thing the arbitration board may do under clauses (1)(b), (e) and (g).

Powers of commissioners included

120(3)      For the purposes of clause (1)(b), an arbitrator, arbitration board or chairperson of an arbitration board has all the like powers, privileges and rights as are conferred upon commissioners appointed under Part V of The Manitoba Evidence Act.

S.M. 2000, c. 45, s. 26.

Substance of matter arbitrated

121(1)      An arbitrator or arbitration board shall, in respect of any matter submitted to arbitration, have regard to the real substance of the matter in dispute between the parties and to all of the provisions of the collective agreement applicable to that matter, and the arbitrator or arbitration board is not bound by a strict legal interpretation of the matter in dispute.

Remedial authority

121(2)      The arbitrator or arbitration board shall provide a final and conclusive settlement of the matter submitted to arbitration, and without restricting the generality of the foregoing the arbitrator or the arbitration board may

(a) determine the monetary value of an injury or loss suffered by an employer, employee or other person, or a union or employers' organization, as a result of a contravention of a collective agreement, and make an order directing a person or organization to pay all or part of the amount of that monetary value; or

(b) direct a person or organization to pay interest on the amount of the monetary value referred to in clause (a) at a rate to be set by the arbitrator or arbitration board; or

(c) order an employer to reinstate an employee dismissed in contravention of a collective agreement; or

(d) order an employer to rescind and rectify any disciplinary action taken against an employee in contravention of a collective agreement; or

(e) relieve, on just and equitable terms, against breaches of time limits or other procedural requirements set out in the collective agreement; or

(f) do two or more of the things set out in clauses (a) to (e).

Substitution of penalty or remedy

121(3)      Where an arbitrator or arbitration board determines that an employee has been dismissed or otherwise disciplined by an employer for cause, if the collective agreement under which the arbitration arose does not provide a penalty or remedy for the cause of the dismissal or discipline which is the subject of the determination, the arbitrator or arbitration board may substitute for the dismissal or discipline such other penalty or remedy as the arbitrator or arbitration board deems just and reasonable in the circumstances.

Jurisdiction retained

121(4)      The jurisdiction of an arbitrator or arbitration board with respect to a matter continues until the arbitrator or arbitration board has determined every aspect of the matter, notwithstanding that

(a) the arbitrator or arbitration board has not expressly retained jurisdiction in any interim or other decision in the matter; or

(b) one or more of the parties to the arbitration do not agree that the arbitrator or arbitration board retains jurisdiction.

Hearings open to public

122         Every hearing held by an arbitrator or arbitration board shall be open to the public except that the arbitrator or arbitration board may hold the hearing in camera where the arbitrator or arbitration board is of the opinion that

(a) intimate financial or personal matters may be disclosed during the hearing; and

(b) the desirability of avoiding disclosure of the intimate financial or personal matters outweighs the desirability of adhering to the principle that hearings be open to the public.

S.M. 1998, c. 45, s. 13.

Certain provisions applicable

123         Subsections 98(7), 108(2), 109(4) and (5), and sections 99 and 110, apply to arbitrators, arbitration boards and arbitrations with necessary modifications.

Majority decision at meeting

124(1)      The decision of a majority of the members present at a meeting of an arbitration board is the decision of the arbitration board; and if the votes are equal the chairperson has a casting vote.

Final decision in arbitration

124(2)      The final decision of a majority of the members of an arbitration board is the final decision of the arbitration board, and if there is no final decision which is common to a majority of the members, the final decision of the chairperson of the arbitration board shall be deemed to be the final decision of the arbitration board.

Time limit for arbitrator's decision

125(1)      An arbitrator shall issue a final decision on a matter submitted to arbitration within 30 days after the conclusion of the hearing held in respect of the matter.

Time limit for arbitration board's decision

125(2)      An arbitration board shall issue a final decision on a matter submitted to arbitration within 60 days after the conclusion of the hearing held in respect of the matter.

Jurisdiction retained for specified period

125(3)      The failure of an arbitrator or arbitration board to issue a final decision within the period of time prescribed in subsection (1) or (2), as the case may be, does not affect the jurisdiction of the arbitrator or arbitration board to continue with and complete the arbitration proceedings and to issue a final decision on the matter prior to the appointment, if any, of a new arbitrator under clause (4)(b).

Speed-up of decision

125(4)      Where an arbitrator or arbitration board has failed to issue a final decision on a matter within the period of time prescribed under subsection (1) or (2), as the case may be, the board may, on the application of either party to the arbitration and after consulting with the parties and the arbitrator or arbitration board,

(a) issue whatever directive it considers necessary in the circumstances to ensure that a decision will be issued without further undue delay; or

(b) appoint a new arbitrator to act in place of the arbitrator or arbitration board in respect of whom or which the application was made.

Function of new arbitrator

125(5)      An arbitrator appointed under clause (4)(b) with respect to a matter

(a) shall be deemed to have been appointed in accordance with the collective agreement between the parties to the arbitration; and

(b) shall resume the arbitration by rehearing the matter.

Decision to be filed with board

126         Every arbitrator or arbitration board shall, within 10 days of issuing a final decision on a matter submitted to arbitration, file a copy thereof with the board, and the decision shall be open for public inspection.

Filing arbitration decision in court

127         Where any party to, or person bound by, a collective agreement fails to comply with a decision of an arbitrator or arbitration board on a matter submitted to arbitration under the collective agreement, any other party to, or other person bound by, the collective agreement may, after the expiration of 14 days from the date the decision is issued to the parties or the date provided in the decision for compliance, whichever is the later, enter the decision, not including any reasons therefor, as a judgment of the Court of Queen's Bench and thereupon the decision may be enforced in the same manner as a judgment or order of the Court of Queen's Bench to the same effect; and the method of enforcing the decision provided under this section is in addition to, and not in substitution for, any other method of enforcing the decision under the law.

Decisions final and binding

128(1)      Except as provided in subsection (2), every decision of an arbitrator or arbitration board on a matter submitted to arbitration is final and binding on the parties and shall not be questioned or reviewed in any court, and no order shall be made or process entered or proceedings taken in any court to set aside or quash the decision, or to declare that the decision is invalid or void or a nullity, or to declare that any act or omission of the arbitrator or arbitration board renders the decision invalid or has the effect of invalidating the decision or affects the validity of the decision.

Judicial review of final decision

128(2)      Subject to subsection (3), a final decision of an arbitrator or arbitration board may be reviewed by a court of competent jurisdiction solely by reason that

(a) the arbitrator or arbitration board failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise the jurisdiction of the arbitrator or arbitration board; or

(b) the decision was obtained by fraud or was based on perjured evidence.

Time limitation

128(3)      An application to a court under clause (2)(a) shall not be made after 30 days have elapsed since the decision of the arbitrator or arbitration board was served on the parties to the arbitration, but an application under clause (2)(b) may be made at any time.

Notice of application to board

128(4)      Where a decision of, or a proceeding before, an arbitrator or arbitration board is the subject of any application to a court under this section, the person making the application shall give the board notice of the application.

No extension of grounds

128(5)      Nothing in this Act extends the grounds on which a court may quash or set aside a decision of an arbitrator or arbitration board or issue a prerogative writ against an arbitrator or arbitration board.

Minister may appoint grievance mediator

129(1)      Where a difference exists between the parties to a collective agreement concerning its meaning, application or alleged violation, the minister may, on the joint application of the parties, appoint a grievance mediator to assist the parties in resolving the difference.

Grievance mediator named in collective agreement

129(2)      Where a collective agreement provides that a person named therein as grievance mediator shall, at the request of one of the parties, investigate and assist the parties in resolving any difference relating to the meaning, application, or alleged violation of the collective agreement, the Minister of Finance shall, on the requisition of the minister, pay out of the Consolidated Fund 1/3 of the cost incurred by the parties for payment of reasonable remuneration and expenses to the person named as grievance mediator in the collective agreement.

Referral of grievance to board

130(1)      When an employee in a unit bound by a collective agreement, or the bargaining agent, initiates a grievance under the agreement, the bargaining agent may refer the grievance, including any question about its arbitrability, to the board to be dealt with in accordance with this section.

Referral of employer grievance

130(2)      Where an employer who is a party to a collective agreement initiates a grievance thereunder, the employer may, subject to this section, refer the grievance, including any question about its arbitrability, to the board.

Time for referral: dismissal or suspension over 30 days

130(3)      No grievance under a collective agreement about the dismissal of an employee or the suspension of an employee for more than 30 days may be referred to the board under this section until the grievance procedure under the agreement has been exhausted, or until 14 days have elapsed since the grievance was first brought to the other party's attention, whichever occurs first.

Time for referral: other cases

130(3.1)    No grievance under a collective agreement about any matter other than the dismissal of an employee or the suspension of an employee for more than 30 days may be referred to the board under this section until the grievance procedure under the agreement has been exhausted, or until 30 days have elapsed since the grievance was first brought to the other party's attention, whichever occurs first.

Where grievance not referrable

130(4)      No grievance under a collective agreement shall be referred to the board under this section where

(a) the grievance has been referred to arbitration under the collective agreement by the party which initiated the grievance, or in the case of a grievance initiated by an employee in the unit, by the bargaining agent; or

(b) the time, if any, stipulated in or permitted under the collective agreement for referring the grievance to arbitration has expired.

Functions of board

130(5)      Where a grievance is referred to the board in accordance with this section, the board

(a) shall appoint an arbitrator to hear and determine the matter arising out of the grievance;

(b) shall fix the date on which the matter will be heard by the arbitrator, which date shall be within 28 days of the day on which the grievance was referred to the board; and

(c) may, where the board deems it appropriate, request the minister to appoint a grievance mediator to assist the parties in settling the grievance prior to the hearing.

Appointment of part-time vice-chairperson

130(6)      Where the board has added the name of a part-time vice-chairperson to the list of arbitrators under subsection 117(2), the board may appoint the part-time vice-chairperson of the board as an arbitrator under subsection (5), but any vice-chairperson so appointed shall function under this section in a private capacity and not as a vice-chairperson of the board.

Board may consolidate grievances

130(7)      The board may, in respect of grievances referred to it under this section, consolidate two or more grievances in any case where the board considers it appropriate to do so.

Minister to appoint grievance mediator

130(8)      Where under clause (5)(c) the board requests the minister to appoint a grievance mediator, the minister shall, whether or not the parties have jointly applied for a grievance mediator under subsection 129(1), forthwith appoint a grievance mediator to assist the parties in settling the grievance prior to the hearing.

Duties of grievance mediator

130(9)      Where a grievance mediator is appointed under subsection (8), the grievance mediator shall, within seven days of the appointment or within such further time as the minister may allow,

(a) inquire into the grievance;

(b) endeavour to assist the parties in settling the grievance; and

(c) report to the minister and to the board on the results of the inquiry and the success of the settlement effort.

Hearing and decision

130(10)     If the parties are unable to settle the grievance, the arbitrator appointed under subsection (5) shall proceed to hear and determine the matter arising out of the grievance. The arbitrator shall issue a decision

(a) within 14 days after concluding the hearing, if the grievance is about an employee's dismissal or a suspension for more than 30 days; or

(b) within 28 days after concluding the hearing, in any other case.

Overall time limit for decision

130(10.1)   Notwithstanding any other provision of this section, an arbitrator appointed under subsection (5) shall issue a decision within 90 days after being appointed unless the board, on application, extends the period. If no decision is issued within 90 days or any extended period allowed by the board, this section ceases to apply and the matter shall be dealt with under sections 114 to 128.

Board approval for adjournments

130(10.2)   Notwithstanding any other provision of this section, an arbitrator appointed under subsection (5) shall not grant an adjournment of a hearing without the approval of the board.

Oral decision

130(11)     Where jointly requested to do so by the parties to the grievance, the arbitrator appointed under subsection (5) shall issue an oral decision within 1 day after the conclusion of the hearing and shall issue written reasons within the time prescribed in subsection (10).

Power and jurisdiction of arbitrator

130(12)     An arbitrator appointed under subsection (5) has all the power and jurisdiction of an arbitrator appointed or constituted under this Act or the collective agreement between the parties to the grievance.

Application of expedited procedure

130(13)     This section applies to every party to a collective agreement and every person bound thereby, notwithstanding any provision in the collective agreement, including the final settlement provision required under subsection 78(1) of this Act or the deemed arbitration provisions set out in subsection 78(2) of this Act.

Provisions re arbitrations apply

130(14)     All the provisions of this Act applicable to arbitrations, except subsection 125(1), apply to an arbitration under this section, with the modifications necessary to accommodate appointments and expedited processes under this section.

S.M. 1992, c. 43, s. 12; S.M. 1996, c. 32, s. 18; S.M. 2000, c. 45, s. 27.

Grievance mediator protected

131         No grievance mediator appointed under this Part or named in a collective agreement

(a) is competent or compellable to give evidence in a civil action or suit in any court, or in any other proceeding whatsoever, including a proceeding before the board or an arbitration, respecting information obtained by the grievance mediator in discharging the duties of the grievance mediator under this Act or the collective agreement; or

(b) is liable for any loss or damage suffered by any person by reason of any action or omission of the grievance mediator in the discharge of the duties of the grievance mediator under this Act or the collective agreement.

Application of The Arbitration Act

132         Except where a collective agreement provides that The Arbitration Act applies to arbitrations under the collective agreement, that Act does not apply to arbitrations under a collective agreement.

PART VII.1

DISCLOSURE OF INFORMATION BY UNIONS

Union to give financial statement to members

132.1(1)    At the request of a member, every union shall give the member, at no charge, a copy of a financial statement of the union's affairs to the end of its last fiscal year. The statement must be certified to be a true copy by the union's treasurer or other officer responsible for handling and administering its funds.

Content of financial statement

132.1(2)     A union's financial statement must set out its income and expenditures for the fiscal year in sufficient detail to disclose accurately the union's financial condition and operation and the nature of its income and expenditures.

Complaint

132.1(3)    If a member of a union complains to the board that the union has failed to give him or her a financial statement in compliance with this section, the board may direct the union to

(a) file with the board, within the time the board determines, a copy of the financial statement of its affairs to the end of its last fiscal year, verified by its treasurer or another officer responsible for handling and administering its funds; and

(b) give a copy of the statement to the members of the union that the board in its discretion may direct.

Union must comply

132.1(4)    The union shall comply with the board's direction.

Complaint that financial statement inadequate

132.1(5)    If a member of a union complains to the board that the union's financial statement is inadequate, the board may inquire into the complaint and may order the union to prepare another financial statement in a form, and containing the information, that the board considers appropriate.

S.M. 1996, c. 32, s. 19; S.M. 2000, c. 45, s. 28.

132.2 to 132.11  [Repealed]

S.M. 1996, c. 32, s. 19; S.M. 2000, c. 45, s. 28.

PART VIII

MANITOBA LABOUR BOARD AND GENERAL PROVISIONS

Personal grievance of employee

133         Notwithstanding anything herein, an employee may present his personal grievance to his employer at any time.

Proceedings not invalidated by irregularity

134         No proceeding under this Act shall be deemed invalid by reason of any defect in form or any technical irregularity.

Signature to application, notice, or collective agreement

135         For the purposes of this Act, an application to the board or any notice or any collective agreement may be signed, if it is made, given or entered into,

(a) by an employer who is an individual, by the employer himself;

(b) by several individuals, who are jointly employers, by a majority of those individuals;

(c) by a corporation, by one of its authorized managers or by one or more of the principal executive officers;

(d) by a union or employers' organization by the president or the secretary or by any other officer thereof or by any person authorized for the purpose by the by-laws thereof or by resolution duly passed at a meeting thereof.

Service of documents

136(1)      Any notice, order, requisition, summons, or other paper or document, required or authorized to be served or sent for the purpose of this Act, may be served or sent by delivering it to, or at the residence of, the person on or to whom it is to be served or sent or, where that person is an employer, by delivering it, or a true copy thereof, to his agent or to any person who is apparently in charge of the establishment or place of business.

Service by mail

136(2)      A notice, order, requisition, summons, or other paper or document, to which subsection (1) refers may also be served or sent by post by mailing it by registered mail with postage prepaid and enclosed in a package addressed to the person for whom it is intended and having attached thereto an official "Acknowledgment of Receipt" form issued from the Canada Post Office; and, if so served or sent, the paper or document enclosed in the package shall, unless the contrary is proved, be deemed to have been served and received respectively on the day of receipt thereof shown on the "Acknowledgment of Receipt" form over the signature of the person acknowledging receipt of the package.

Proof of service

136(3)      Subject to subsection (4), in proving a service or sending made or done under subsection (2), it is sufficient to prove that the package was properly addressed and registered and to produce the "Acknowledgment of Receipt" form showing the date of receipt, signed by the person acknowledging receipt of the package, and stamped with an official stamp and otherwise duly completed by the office of origin and the office of destination of Canada Post Office.

Service by mail on employers

136(4)      Where a paper or document to which subsection (2) refers is required to be served upon, or sent to, an employer, the package containing it shall, for the purposes of subsections (2) and (3), be deemed to be properly addressed if addressed to the establishment or place of business of which he has charge, with the addition of the proper postal address thereof, but without naming the person who is the employer.

Filings with board

137         The board may direct that any union or employers' organization that is a party to an application, or is a party to an existing collective agreement, or that, in the opinion of the board, is affected by a proceeding before the board, shall file with the board

(a) a statutory declaration signed by its president or secretary stating the names and addresses of its officers; and

(b) a copy of its constitution and by-laws;

and the union or employers' organization shall comply with the direction within the time prescribed by the board.

The Manitoba Labour Board

138(1)      The Manitoba Labour Board is continued as an independent and autonomous specialist tribunal responsible for the fair and efficient administration and adjudication of responsibilities assigned to it under this and any other Act.

Composition and appointment

138(2)      The board shall consist of

(a) a chairperson;

(b) one or more vice-chairpersons; and

(c) as many other members equal in number representative of employees and employers respectively as the Lieutenant Governor in Council considers appropriate;

all of whom shall be appointed by the Lieutenant Governor in Council.

Tenure of chairperson and vice-chairpersons

138(3)      The chairperson and vice-chairpersons are members of the board and shall hold office for terms not exceeding seven years and not less than five years, and shall be removable only for cause by resolution of a two-thirds majority of the members of the assembly who vote thereon.

Tenure of representative members

138(4)      Members who are representative of employees and employers shall be appointed for terms not exceeding five years and not less than two years.

Selection of chairperson

138(5)      Prior to selecting and appointing a chairperson, the Lieutenant Governor in Council shall consult with representatives of employees and employers respecting the appointment.

Selection of vice-chairpersons and other members

138(6)      Whenever the Lieutenant Governor in Council intends to appoint a member other than the chairperson, the appointment shall be made from among persons whose names are included on a list prepared by the chairperson after consultation with representatives of employees and employers respecting the list.

Eligibility for reappointment

138(7)      Any member whose term expires or who resigns may be reappointed in the same or another capacity.

Salary and expenses

138(8)      Each member of the board shall be paid such salary or other remuneration and reasonable expenses as may be fixed in the appointing order.

Full-time and part-time appointments

138(9)      Vice-chairpersons and representative members may be appointed to full-time or part-time terms of office, but among each group of full-time or part-time representative members there shall be an equal number of employee and employer representatives.

Oath of office

138(10)     Before assuming office, each member of the board shall take the following oath of office:

I, _________________ do solemnly swear (or affirm) that I will faithfully, truly, and impartially, to the best of my knowledge, skill and ability execute and perform the office of (chairperson, vice-chairperson, member) of The Manitoba Labour Board and will not, except in the discharge of my duties, disclose to any person any of the evidence or other matters brought before The Manitoba Labour Board.  So help me God.  (Delete last 4 words where person affirms).

Disqualification of board members

138(11)     No member of the board shall hear or participate in the decision in any matter in which the member

(a) has a pecuniary interest; or

(b) has, within a period of six months prior to the date on which the matter was submitted to the board, acted as solicitor, counsel, or agent for any of the parties to the matter before the board.

Completion of duties

138(12)     Where any member of the board, except the chairperson or a vice-chairperson removed for cause, ceases to be a member, that member may carry out and complete any duties or responsibilities that the member would have carried out or exercised in relation to any proceeding as a member of the board until the proceeding is completed.

Annual report

138(13)     The board shall, within one year following the end of each fiscal year, submit to the assembly, through the minister, a report on the activities of the board during the immediately preceding fiscal year and the minister shall cause the report to be laid before the assembly within 15 days after receiving the report, or if the assembly is not sitting, within the first 15 days of the next sitting.

Contents of report

138(14)     The report shall contain an account of the activities and operations of the board, the full text or summary of significant board and judicial decisions related to the board's responsibilities under this and any other Act of the Legislature, and the full text of any guidelines or practice notes which the board issued during the fiscal year.

Budget

138(15)     The salaries and other remuneration and the expenses of administration of the board shall be paid out of the Consolidated Fund with moneys annually authorized by an Act of the Legislature for this purpose as set forth in greater detail in the annual estimates of the province.

Chairperson

139(1)      The chairperson is the presiding officer of the board.

Establishing panels

139(2)      The chairperson may

(a) establish panels of the board to determine any matters before the board; or

(b) terminate an appointment to a panel; or

(c) fill any vacancy on a panel; or

(d) refer any matter which is before the board to a panel or any matter which is before a panel to another panel; or

(e) do two or more of the things set out in clauses (a) to (d).

Substitute chairperson

139(3)      The chairperson shall designate a vice-chairperson to act in place of the chairperson during the absence of the chairperson, and while so acting the vice-chairperson has the power and authority of the chairperson.

Presiding at meetings

139(4)      The chairperson shall preside at meetings of the board and panels of which the chairperson is a member, and the appropriate vice-chairperson shall preside at meetings of every other panel.

Composition of panels

139(5)      A panel of the board consists of

(a) the chairperson; or

(b) a vice-chairperson; or

(c) the chairperson or vice-chairperson and one or more other members in equal number representative of employees and employers; or

(d) the chairperson and two vice-chairpersons and one or more other members in equal number representative of employees and employers.

Authority of panel

139(6)      A panel has the power and authority of the board.

Quorum

139(7)      The board or a panel of the board shall not proceed with a matter unless a quorum, which

(a) in the case of the board, consists of the chairperson and one member representative of employees and one member representative of employers; or

(b) in the case of a panel, consists of all of the members of the panel;

is present and remains present throughout the proceeding.

Majority decision at proceeding

139(8)      The decision of a majority of the members of the board or a panel present at a meeting or other proceeding is the decision of the board or panel; and if the votes are equal the chairperson of the board or the presiding member of the panel, as the case may be, has a casting vote.

Final decision in matter

139(9)      The final decision of a majority of the members of the board or a panel is the final decision of the board or panel, and if there is no final decision which is common to a majority of the members, the final decision of the chairperson of the board or the presiding member of the panel, as the case may be, shall be deemed to be the decision of the board or panel.

Practice and procedure

140(1)      The board shall determine its own practice and procedure, but subject to this section shall give all parties an opportunity to present evidence and make representations.

Representations in writing

140(2)      In any case under this Act where the board may or is required to hold a hearing into a matter, it may do so by providing the parties with an opportunity to present their evidence and make their representations in writing.

Public hearing

140(3)      When the board considers it necessary or appropriate to conduct an oral hearing, the hearing shall be open to the public except that the board may hold the hearing in camera where the board is of the opinion that

(a) intimate financial or personal matters may be disclosed during the hearing; and

(b) the desirability of avoiding disclosure of the intimate financial or personal matters outweighs the desirability of adhering to the principle that hearings be open to the public.

Offence and penalty

140(4)      Any person served with a written summons under clause 142(1)(a) who fails to appear and give evidence on oath or affirmation or to produce documents and things as required by the summons, is guilty of an offence.

Witness fees

140(5)      Subsection 109(5) applies with the necessary modifications to every person summoned by the board and who duly attends as a witness.

Settlement efforts

140(6)      The board through its representatives, members or other persons may undertake efforts to assist the parties to a proceeding before the board to settle the matter.

Deferral to arbitration

140(7)      The board may refuse to hear or continue to hear any matter which it considers can be adequately determined under the provisions of a collective agreement for final settlement of disputes between the parties or under the deemed arbitration provisions set out in subsection 78(2) of this Act.

Matters without merit

140(8)      Where, in the opinion of the board, a request, application or complaint is without merit or beyond the jurisdiction of the board, it may dismiss the request, application or complaint at any time.

Consent order

140(9)      Where, at any time before or during a proceeding before the board, the board, a person appointed by it or the parties themselves settle all or part of the differences between the parties to the proceeding on terms not contrary to this Act, the regulations, or a collective agreement or any other Act, the board may issue a consent order setting forth the terms of the settlement agreed to by the parties.

Consent order is final order

140(10)     A consent order is a final order of the board and has the same force and effect as any other final order of the board.

Conditional order

140(11)     Prior to or after making a decision, order, direction, declaration or ruling under this Act, the board may require that conditions prescribed by the board be observed or performed or that the applicant or complainant undertake to act in a manner prescribed by the board, or that the applicant or complainant refrain from acting in a manner proscribed by the board.

Regulations by board

141(1)      The board may make regulations not inconsistent with this Act respecting

(a) the establishment of rules of procedure for its hearings;

(b) the determination of units appropriate for collective bargaining;

(c) the procedures for votes conducted by the board;

(d) the specification of the period of time after which the board may receive an application from a union for certification as the bargaining agent for a proposed unit where the board has refused an application from the union for certification in respect of the same or substantially the same proposed unit;

(e) the hearing or determination of any application, complaint, question, dispute or difference which may be made or referred to the board;

(f) the forms to be used in respect of any proceeding before the board;

(f.1) the form of financial statements that may be required to be given or filed;

(f.2) [repealed] S.M. 2000, c. 45, s. 29.

(f.3) the fees, if any, to be charged by the board in respect of any request, referral or application made to the board under the Act;

(g) the time within which and the circumstances under which the board or a panel of the board may exercise its powers under section 143(3);

(h) the form in which and the time as of which evidence and information may be presented to the board in connection with any proceeding before it;

(i) the specification of the times within which and the parties or persons to whom notices and other documents shall be sent, and the circumstances in which such notices shall be deemed to have been given or received by the board or any party or person;

(j) the determination of the form in which evidence as to

(i) the membership of any employee in a union, or

(ii) any indication by employees that they no longer wish to be represented by a union,

shall be presented to the board;

(k) the circumstances in which evidence referred to in clause (j) may or may not be made public by the board;

(l) the fees, if any, which the board is to charge for providing copies of board orders and decisions, collective agreements, arbitration decisions or any other documents;

(m) the authority of any person to act on behalf of the board under subsection 142(4) and the matters and things to be done and the actions to be taken by that person; and

(n) such other matters and things as may be incidental or conducive to the proper exercise of the powers and the performance of the duties and functions of the board under this Act.

Regulations may relate to duties under other Acts

141(1.1)    The board may make regulations under subsection (1) respecting hearings it conducts or determinations it makes under other Acts.

Guidelines

141(2)      The board may formulate general guidelines to further the operation of this Act but the board is not bound by those guidelines in the exercise of its powers or the performance of its duties and functions.

Submissions re guidelines

141(3)      In formulating general guidelines the board may request and receive submissions from any person.

S.M. 1996, c. 32, s. 20; S.M. 2000, c. 45, s. 29; S.M. 2002, c. 33, s. 48.

Regulations re timing of decisions

141.1(1)    The board must make regulations setting out the time within which, after a hearing is concluded, the board must render its decision on

(a) a complaint or application made under this Act; and

(b) a referral under section 15.

Regulations re timing of hearings re certification

141.1(2)    The board must make regulations setting out the time within which, after an application is received, the board must hold any required hearing on

(a) an application under section 34 for certification of a union as the bargaining agent of employees; and

(b) an application under section 49 to cancel the certification of a bargaining agent or to terminate the bargaining rights of an uncertified bargaining agent.

Extension of time

141.1(3)    A regulation under this section may give the chairperson the discretion, when the chairperson considers the circumstances to be exceptional,

(a) to extend a time period set out in the regulations in a specific case; and

(b) to extend the time within which written reasons must be given in the case of a time period set by regulation under subsection (1).

Different time periods for different classes

141.1(4)    A regulation under this section may prescribe different time periods for different classes of complaints, applications or referrals.

Regulations within one year

141.1(5)    The board must make the regulations required by this section within one year after this section comes into force.

S.M. 2014, c. 20, s. 2.

Board to review regulations

141.2       The board must review the regulations it has made under sections 141 and 141.1 within two years after this section comes into force and at least every six years afterwards.

S.M. 2014, c. 20, s. 2.

Board powers

142(1)      The board has in relation to any proceeding before it, power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath or affirmation and to produce such documents and things as the board deems requisite to the full investigation and consideration of any matter which is before the board in the proceeding;

(b) to adjourn or postpone the proceeding from time to time;

(c) to amend or permit the amendment of any document filed in connection with the proceeding;

(d) to add a party to the proceeding at any stage of the proceeding;

(e) to administer oaths and affirmations;

(f) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion the board sees fit whether admissible in a court of law or not;

(g) to enter into a workplace for the purpose of conducting votes during working hours;

(h) to require an employer, employee or any other person to make, furnish or produce full and correct statements either orally or in writing respecting employment or terms and conditions of employment, and to require the statements to be made on oath or to be verified by statutory declaration;

(i) to demand by notice in writing, the production of any books, records, documents, papers, payrolls, contracts of employment or other records relating to employment or terms and conditions of employment, either forthwith or at a time, date and place specified in the notice;

(j) to make such examinations of records and such inquiries as it deems necessary;

(k) to enter any premises of an employer or union to view any work material, machinery, appliances, articles or records therein and to question any person respecting any matter before the board;

(l) to require an employer or union to post and keep posted in appropriate places any notice relating to a proceeding or its outcome which the board considers necessary to bring to the attention of any employee; and

(m) to exercise such powers and perform such duties and functions as may be incidental to the powers, duties and functions of the board and the objects of this or any other Act, including the power to make an order requiring compliance with any decision made in respect of a matter before the board.

Powers of commissioners

142(2)      For the purposes of clause (1)(a), the board has all the like powers, privileges and rights as are conferred upon commissioners appointed under Part V of The Manitoba Evidence Act.

Certain powers of chairperson or vice-chairperson

142(3)      The chairperson or any vice-chairperson of the board may do any thing that the board may do under clauses (1)(a) and (b).

Board delegation of power

142(4)      The board may authorize any person, including a member of the board, to do any thing the board may do under clauses (1)(e) to (m) in order to assist the person to effect a settlement of, or to investigate and report on, any matter before the board.

Determination of questions by board

142(5)      In any proceeding before the board or on application in writing to the board by any person, union or employers' organization who or which, in the opinion of the board, would be affected by or have an interest in the determination of the question, or on its own motion, the board may, at any time, decide any question for the purposes of this Act, including, without limiting the generality of the foregoing, any question as to whether

(a) a person is an employer or employee; or

(b) an employee is a professional employee; or

(c) an organization or association is a union or an employers' organization; or

(d) an employee or group of employees is or are included in a unit for which a bargaining agent has been certified; or

(e) a collective agreement has been entered into, and the terms thereof, and the persons or organizations who or which are parties to or are bound by the collective agreement or on whose behalf the collective agreement was entered into; or

(f) a collective agreement is by its terms in full force and effect; or

(g) any person has failed to comply with any provision of this Act; or

(h) a group of employees is a unit appropriate for collective bargaining; or

(i) an employee belongs to a craft or group exercising technical skills; or

(j) a person is a member of a union; or

(k) a provision in a collective agreement or a prevailing custom or procedure in a place of employment is a term or condition of employment; or

(l) work of an employee of an employer would directly facilitate the operation or business of another employer whose employees within Canada are lawfully on strike or locked out; or

(m) an employee is a member of a religious group which has as one of its articles of faith the belief that members of the group are precluded from being members of, and financially supporting, any union or professional association, and the employee has a personal belief in those articles of faith; or

(n) any person is a professional strikebreaker; or

(o) any person has been hired to replace an employee in a unit during a strike or lockout; or

(p) any conduct is strike-related misconduct; or

(q) there has been a sale, merger or amalgamation of a business; or

(r) a union has become a successor by reason of a merger, amalgamation, or transfer of jurisdiction, or there has been a transfer of bargaining rights to a successor union.

Relationship between board and courts

143(1)      Except as provided in subsections (5) and (6), the board or any panel of the board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law which arise in any matter before it, and the action or decision of the board or panel in any matter is final and binding on the parties thereto.

No judicial review during proceeding

143(2)      Except as provided in subsections (5) and (6), no decision, order, direction, declaration or ruling of the board or any panel of the board shall be questioned or reviewed in any court and no order shall be made or process entered or proceedings taken in any court whether by way of injunction, declaratory judgment, stay, certiorari, mandamus, prohibition, quo warranto or otherwise to question, review, prohibit or restrain the board or panel or any of its proceedings.

Board review

143(3)       The board or a panel of the board may

(a) review and vary or rescind any decision, order, direction, declaration or ruling that it or another panel has made; and

(b) rehear a matter that it has heard or that another panel has heard.

Reference to Court of Appeal

143(4)      Where the board or any panel of the board considers it to be in the interests of the efficient administration of this Act or the promotion of harmonious employer-employee relations, the board or panel may refer any question of law before it for final determination by the Court of Appeal, and the Court shall hear and render a decision on the question within six months of the date of the reference.

Judicial review on constitutional grounds

143(5)      The constitutional jurisdiction of the board or any panel of the board may be reviewed by any court of competent jurisdiction.

Judicial review of final decision

143(6)      Notwithstanding any other Act, a final decision, order, direction, declaration or ruling, but not a procedural, interim or any other decision, order, direction, declaration or ruling, of the board or a panel of the board may be reviewed by a court of competent jurisdiction solely by reason that the board or the panel failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction, if

(a) the applicant for review has first requested the board or the panel, as the case may be, to review its decision under subsection (3), and the board or the panel has decided not to undertake a review, or has undertaken a review and rendered a decision thereon, or has failed to dispose finally of the request to review within 90 days after the date on which it was made;

(b) the board has been served with notice of the application and has been made a party to the proceeding; and

(c) no more than 30 days have elapsed from, as the case may be, the decision by the board or panel not to undertake a review, or the date of the decision rendered by the board or panel on the review, or the expiration of the 90 day period referred to in clause (a).

Deemed final decision

143(7)      For purposes of subsection (6), a decision which the board or a panel of the board has decided not to review, or has failed to review within the 90 day period referred to in clause (6)(a), shall be deemed to be a final decision of the board or panel.

No extension of grounds

143(8)      Nothing in this Act extends the grounds on which a court may quash or set aside a decision of the board or a panel of the board, or issue a prerogative writ against the board or a panel of the board.

Board has standing

143(9)      In any proceeding before a court under subsection (4), (5) or (6), the board has the right and standing to appear as a party with full rights to participate, including the right of appeal, and the chairperson has the authority to retain and instruct any counsel to appear on behalf of the board.

Reference to board

143(10)     In any proceeding before any court in which a question arises relating to any matter within the jurisdiction of the board under this Act, the court may refer that question to the board, which shall hear and render a decision on the question within 60 days of the date of the reference.

Enforcement

143(11)     Where any person, union or employers' organization fails to comply with a decision, order, direction, declaration or ruling of the board or any panel of the board, any person, union or employers' organization affected thereby may, after the expiration of 14 days from the date of service of the order on the person, union or employers' organization required to comply or the date provided for compliance by the board or panel, whichever is later, notify the board in writing of the failure to comply, and thereupon the board shall file in the office of the Prothonotary or the deputy clerk of the Crown and pleas of the Queen's Bench, in the appropriate form, a copy of the decision, order, direction, declaration or ruling and thereupon it may be enforced in the same manner, to the same extent and with the same priorities as a judgment of that court may be enforced.

S.M. 2000, c. 45, s. 30.

Not compellable witness

144(1)      No member of the board and no representative, employee, or other person acting on behalf of the board under this or any other Act shall be required to give evidence in any civil action or suit in any court, or in any other proceeding whatsoever, including a proceeding before the board, respecting information obtained in the discharge of the person's duties on behalf of the board.

No liability

144(2)      No member of the board and no representative, employee, or other person acting on behalf of the board under this or any other Act is liable for any loss or damage suffered by any person by reason of any action or omission of the member, representative, employee or other person in the discharge of the person's duties on behalf of the board.

Proof of certificate of board, etc.

144(3)      For the purposes of this Act or any other Act under which powers, duties, or responsibilities are granted to the board or charged upon it, any document purporting to be a certificate of the board or to contain, or to be a copy of, any regulation, rule, decision, direction, or order of the board, and purporting to be signed by a member of the board or the registrar thereof, is admissible in evidence by any court as a sufficient certificate or as conclusive proof of the regulation, rule, decision, direction, order, or other matter therein contained of which it purports to be a copy.

Refusal to comply with order

145         Every person, union, and employers' organization, who contrary to this Act refuses or neglects to comply with a lawful order of the board, is guilty of an offence and is liable, on summary conviction, to a fine not exceeding $200. for each day during which the refusal or neglect continues.

Prosecution of employers' organization or union

146(1)      A prosecution for an offence under this Act may be brought by or on the information of, or against, an employers' organization or a union and in the name of the organization or union; and for the purpose of such a prosecution a union or an employers' organization shall be deemed to be a person; and any act or thing done or omitted by an officer or agent of an employers' organization or union within the scope of his authority to act on behalf of the organization or union shall be deemed to be an act or thing done or omitted by the employers' organization or union.

Information for several offences

146(2)      An information or complaint in respect of a contravention of this Act may be for one or more offences, and no information, complaint, warrant, conviction, or other proceeding in a prosecution, is objectionable or insufficient by reason of the fact that it relates to two or more offences.

Officer of corporation, etc.

147         Where a corporation, union or employers' organization commits an offence under this Act, any officer, director or agent of the corporation, union or employers' organization who directed, authorized, assented to, acquiesced in or participated in the commission of the offence is a party to and guilty of the offence and liable, on summary conviction, to the penalty provided for the offence whether or not the corporation, union or employers' organization, as the case may be, has been or is prosecuted for or convicted of the offence.

Limitation on prosecution

148(1)      Notwithstanding any other Act of the Legislature, proceedings in respect of a prosecution for an alleged offence under this Act may be instituted any time within one year after the time when the subject matter of the prosecution arose.

Consent of board to prosecution

148(2)      No person other than the minister or the Attorney-General, or a person acting on behalf of the minister or the Attorney-General, shall initiate or commence a prosecution for an offence under this Act unless he has the consent in writing of the board.

Penalties general

149         Every person, union or employers' organization who does anything prohibited by this Act or who refuses or neglects to do anything required by this Act, to be done by him or who contravenes any provision of this Act is guilty of an offence and, except where some other penalty is by this Act provided for the offence, is liable on summary conviction,

(a) if a corporation, union, or employers' organization, to a fine not exceeding $500.; and

(b) if an individual, to a fine not exceeding $250. or to imprisonment for not more than one month or to both.

Liability for damages

150(1)      Any employers' organization, union, employer, employee, or person who,

(a) does, or authorizes, or aids or abets the doing of anything prohibited under this Act; or

(b) fails to do anything required to be done under this Act; or

(c) authorizes, or aids or abets in the failure to do anything required to be done under this Act;

is liable for general or special damages, or both, to anyone who is injured or suffers damage by the act or failure.

Breach of contract

150(2)      A party of a collective agreement or any employer, employers' organization, or a union, that is bound by a collective agreement, who or which is in breach thereof, is liable for general or special damages, or both, and may be sued by any other party thereto or person bound thereby who is injured or suffers damage as a result of the breach.

Status of employers' organizations or unions

150(3)      For the purposes of suing or being sued as permitted under this Act, employers' organizations and unions are legal entities capable of suing or being sued.

 

 


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