Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2)

Successor Rights and Obligations

Marginal note:Mergers, amalgamations and transfers of jurisdiction

• 79 (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.

• Marginal note:Board to determine questions

  (2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or Division 1 of Part 2.1 or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.

• Marginal note:Inquiry and votes

  (3) Before making a determination on the application, the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the determination. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Marginal note:Definitions

80 The following definitions apply in this section and sections 81 to 93.

conversion

conversion means the establishment as a separate agency, or the integration into a separate agency, of any portion, or part of a portion, of the core public administration. (conversion)

new separate agency

new separate agency means a separate agency established as a result of a conversion or into which is integrated any portion, or part of a portion, of the core public administration as the result of a conversion. (nouvel organisme distinct)

Marginal note:Continuation of collective agreement or arbitral award

81 Subject to sections 83 to 93, a collective agreement or arbitral award that applies to employees in any portion, or part of a portion, of the core public administration before its conversion continues in force after the conversion, and binds the new separate agency, until its term expires.

Marginal note:Parties may amend

82 Nothing in section 81 prohibits the new separate agency and the bargaining agent from amending any provision of a collective agreement, other than a provision relating to its term.

Marginal note:Application for certification

83 An employee organization may apply to the Board for certification as the bargaining agent for the employees bound by a collective agreement or arbitral award that is continued in force by section 81, but it may do so only during the period in which an application for certification is authorized to be made under section 55 in respect of those employees.

Marginal note:Power of Board

• 84 (1) Whenever a collective agreement or arbitral award is continued in force by section 81, the Board must, by order, on application by the new separate agency or any bargaining agent affected by the conversion,

  • (a) determine whether the employees of the new separate agency who are bound by any collective agreement or arbitral award constitute one or more units appropriate for collective bargaining;

  • (b) determine which employee organization is to be the bargaining agent for the employees in each such unit; and

  • (c) in respect of each collective agreement or arbitral award that binds employees of the new separate agency, determine whether the collective agreement or arbitral award is to remain in force and, if it is to remain in force, determine whether it is to remain in force until the expiration of its term or until any earlier date that the Board may fix.

• Marginal note:When application may be made

  (2) The application may be made only during the period beginning 120 days and ending 150 days after the conversion date.

Marginal note:Application for leave to give notice to bargain collectively

• 85 (1) Either party to a collective agreement or arbitral award that remains in force by reason of an order made under paragraph 84(1)(c) may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

• Marginal note:When application may be made

  (2) The application must be made within 90 days after the day on which the order is made.

Marginal note:Application for leave to give notice to bargain collectively

• 86 (1) If no application for an order under subsection 84(1) is made within the period specified in subsection 84(2), the new separate agency or any bargaining agent bound by a collective agreement or arbitral award that is continued in force by section 81 may apply to the Board for an order granting leave to give to the other party, under section 105, a notice to bargain collectively.

• Marginal note:When application may be made

  (2) The application may be made only during the period beginning 151 days and ending 240 days after the date of the conversion.

Marginal note:Notice to bargain given before conversion

87 A notice to bargain collectively that was given before a conversion does not bind the new separate agency and a new notice to bargain collectively may be given only in the circumstances described in paragraph 89(b).

Marginal note:Duty to observe terms and conditions

88 If a notice to bargain collectively was given before a conversion, then, unless the new separate agency and the bargaining agent agree otherwise, the terms and conditions of employment continued in force by section 107 are binding on the new separate agency, the bargaining agent for the bargaining unit and the employees in the bargaining unit from the date of the conversion until

• (a) the expiry of 150 days following the date of the conversion, if no application is made under paragraph 89(a); or

• (b) if such an application is made, the day the notice referred to in paragraph 89(b) is given.

Marginal note:Application and notice to bargain

89 If a notice to bargain collectively was given before a conversion,

• (a) on application by the new separate agency or bargaining agent, made during the period beginning 120 days, and ending 150 days, after the date of the conversion, the Board must make an order determining

  • (i) whether the employees of the new separate agency who are represented by the bargaining agent constitute one or more units appropriate for collective bargaining, and

  • (ii) which employee organization is to be the bargaining agent for the employees in each such unit; and

• (b) if the Board makes the determinations under paragraph (a), the new separate agency or the bargaining agent may, by notice given under section 105, require the other to commence collective bargaining for the purpose of entering into a collective agreement.

Marginal note:Inquiry and votes

90 Before making an order under subsection 84(1) or paragraph 89(a), the Board may make any inquiry or direct that a representation vote be taken among the employees to be affected by the order. The provisions of subsection 65(2) apply in relation to the taking of a vote.

Marginal note:Consideration of employer’s classification

• 91 (1) For the purposes of paragraphs 84(1)(a) and 89(a), in determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board must have regard to the employer’s classification of persons and positions, including the occupational groups or subgroups established by the employer.

• Marginal note:Unit co-extensive with occupational groups

  (2) The Board must establish bargaining units that are co-extensive with the occupational groups or subgroups established by the employer, unless doing so would not permit satisfactory representation of the employees to be included in a particular bargaining unit and, for that reason, such a unit would not be appropriate for collective bargaining.

Marginal note:Determination of questions of membership in bargaining units

92 On application by the new separate agency or the employee organization affected, the Board must determine every question that arises as to whether any employee or class of employees is included in a bargaining unit determined by the Board under paragraph 84(1)(a) or 89(a) to constitute a unit appropriate for collective bargaining, or is included in any other unit.

Marginal note:Employer participation

• 93 (1) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it is of the opinion that the new separate agency, or a person acting on behalf of the new separate agency, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit.

• Marginal note:Discrimination

  (2) The Board may not declare an employee organization to be a bargaining agent under paragraph 84(1)(b) or 89(a) if it discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Revocation of Certification

Marginal note:When employee organization no longer represents employees

• 94 (1) Any person claiming to represent a majority of the employees in a bargaining unit bound by a collective agreement or an arbitral award may apply to the Board for a declaration that the employee organization that is certified as the bargaining agent for the bargaining unit no longer represents a majority of the employees in the bargaining unit.

• Marginal note:When application may be made

  (2) The application may be made only during the period in which an application for certification of an employee organization may be made under section 55 in respect of employees in the bargaining unit.

Marginal note:Taking of representation vote

95 After the application is made, the Board may order that a representation vote be taken to determine whether a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization that is the bargaining agent for that bargaining unit. The provisions of subsection 65(2) apply in relation to the taking of the vote.

Marginal note:Revocation of certification

96 If, after hearing the application, the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization, it must revoke the certification of the employee organization as the bargaining agent.

Marginal note:Certification obtained by fraud

97 The Board must revoke the certification of an employee organization if the Board is satisfied that it was obtained by fraud.

Marginal note:Employer participation or discrimination

98 The Board must revoke the certification of an employee organization as the bargaining agent for a bargaining unit if the Board, on application by the employer or any employee, determines that

• (a) the employer, or a person acting on behalf of the employer, has participated or is participating in the formation or administration of the employee organization in a manner that impairs its fitness to represent the interests of the employees in the bargaining unit; or

• (b) the employee organization discriminates against any employee on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act.

Marginal note:Abandonment of certification

99 The Board must revoke the certification of an employee organization if the employee organization advises the Board that it wishes to give up or abandon its certification or if the Board, on application by the employer or any employee, determines that the employee organization has ceased to act as bargaining agent.

Marginal note:Council of employee organizations

• 100 (1) The Board must revoke the certification of a council of employee organizations that has been certified as a bargaining agent if the Board is satisfied, on application by the employer or an employee organization that forms or has formed part of the council, that the council no longer meets the condition for certification set out in paragraph 64(1)(c) for a council of employee organizations.

• Marginal note:Additional circumstances

  (2) The circumstances set out in subsection (1) apply in addition to the circumstances in which a certification may be revoked under sections 94 to 99 and section 238.17.

Marginal note:Effect of revocation

• 101 (1) Revocation of the certification of an employee organization certified as the bargaining agent for a bargaining unit has the following effects:

  • (a) subject to paragraph 67(c), any collective agreement or arbitral award that is binding on the employees in the bargaining unit ceases to be in force;

  • (b) subject to subsection (2), any rights or privileges flowing from the certification are terminated; and

  • (c) subject to paragraph 67(e), any essential services agreement that is in force in respect of positions in the bargaining unit ceases to be in force.

• Marginal note:Determination of rights of bargaining agent

  (2) If the certification of an employee organization is revoked by the Board under section 96, any of sections 98 to 100 or section 238.17, the Board must, on application by the employee organization or any employee organization that is substituted in the place of a bargaining agent under paragraph 67(c), determine any question as to any right or duty of the employee organization or of the substituted employee organization.

Marginal note:Direction

102 If a collective agreement or arbitral award ceases to be in force as a result of the revocation of an employee organization’s certification as the bargaining agent for a bargaining unit, the Board must, on application by or on behalf of any employee in the bargaining unit, by order, direct the manner in which any right of the employee is to be recognized and given effect.

DIVISION 6Choice of Process for Dispute Resolution

Marginal note:Choice of process

• 103 (1) A bargaining agent for a bargaining unit must notify the Board, in accordance with the regulations, of the process it has chosen — either arbitration or conciliation — to be the process for the resolution of disputes to which it may be a party.

• Marginal note:Recording of process

  (2) The Board must record the process chosen by the bargaining agent for the resolution of disputes.

• Marginal note:Period during which process to apply

  (3) The process recorded by the Board applies to the bargaining unit for the resolution of all disputes from the day on which a notice to bargain collectively in respect of the bargaining unit is given after the process is chosen, and it applies until the process is changed in accordance with section 104.