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C.C.S.M. c. L10
The Labour Relations Act
| Table of Contents | Regulations |
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:
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.
2(3) In this Act, words importing the masculine gender include unions and employers' organizations.
3 The Crown in right of Manitoba is bound by this 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.
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;
(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.
PART I
UNFAIR LABOUR PRACTICES AND INFRINGEMENT OF 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
24(3) Any agreement entered into as a result of an unfair labour practice committed under subsection (1) or (2) is void.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.