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

Marginal note:Unfair representation by bargaining agent

187 No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Marginal note:Unfair labour practices — employee organizations

188 No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

• (a) except with the consent of the employer, attempt, at an employee’s place of employment during the employee’s working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

• (b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

• (c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

• (d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

• (e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

  • (i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

  • (ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

  • (iii) exercised any right under this Part or Part 2.

Marginal note:Unfair labour practices — persons

• 189 (1) Subject to subsection (2), no person shall seek by intimidation or coercion to compel an employee

  • (a) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be, a member of an employee organization; or

  • (b) to refrain from exercising any other right under this Part or Part 2.

• Marginal note:Exception

  (2) A person does not commit an unfair labour practice referred to in subsection (1) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

DIVISION 13Complaints

Marginal note:Complaints

• 190 (1) The Board must examine and inquire into any complaint made to it that

  • (a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

  • (b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

  • (c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

  • (d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

  • (e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

  • (f) the employer, a bargaining agent or an employee has failed to comply with subsection 125(1) (duty to observe terms and conditions); or

  • (g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

• Marginal note:Time for making complaint

  (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

• Marginal note:Limitation on complaints against employee organizations

  (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

  • (a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

  • (b) the employee organization

    • (i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

    • (ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

  • (c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

• Marginal note:Exception

  (4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

  • (a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

  • (b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

Marginal note:Duty and power of the Board

• 191 (1) Subject to subsection (3), on receipt of a complaint made under subsection 190(1), the Board may assist the parties to the complaint to settle the complaint. If it decides not to do so or if the complaint is not settled within a period that the Board considers to be reasonable in the circumstances, it must determine the complaint.

• Marginal note:Refusal to determine complaint involving collective agreement

  (2) The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 by the complainant.

• Marginal note:Burden of proof

  (3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

Marginal note:Orders

• 192 (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:

  • (a) if the employer has failed to comply with section 107 or subsection 125(1), an order requiring the employer to pay to any employee compensation that is not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

  • (b) if the employer has failed to comply with paragraph 186(2)(a), an order requiring the employer to

    • (i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged contrary to that paragraph,

    • (ii) pay to any person affected by that failure compensation in an amount that is not more than, in the Board’s opinion, the remuneration that would, but for that failure, have been paid by the employer to that person, and

    • (iii) rescind any disciplinary action taken in respect of any person affected by that failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the person by the employer;

  • (c) if the employer has failed to comply with paragraph 186(2)(c), an order requiring the employer to rescind any action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employer;

  • (d) if an employee organization has failed to comply with section 187, an order requiring the employee organization to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on any proceeding that the Board considers that the employee organization ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

  • (e) if an employee organization has failed to comply with paragraph 188(b) or (d), an order requiring the employee organization to reinstate or admit an employee as one of its members; and

  • (f) if an employee organization has failed to comply with paragraph 188(c), (d) or (e), an order requiring the employee organization to rescind any disciplinary action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employee organization.

• Marginal note:Person acting on behalf of employer

  (2) If the order is directed to a person who has acted or purported to act on behalf of the employer, the order must also be directed to the Secretary of the Treasury Board in the case of the core public administration and, in the case of a separate agency, to its deputy head.

• Marginal note:Person acting on behalf of employee organization

  (3) If the order is directed to a person who has acted or purported to act on behalf of an employee organization, the order must also be directed to the chief officer of that employee organization.