Canada Labour Code (R.S.C., 1985, c. L-2)

Marginal note:Duty and power of the Board

• 98 (1) Subject to subsection (3), on receipt of a complaint made under section 97, the Board may assist the parties to the complaint to settle the complaint and shall, where it decides not to so assist the parties or the complaint is not settled within a period considered by the Board to be reasonable in the circumstances, determine the complaint.

• (2) [Repealed, 1998, c. 26, s. 44]

• Marginal note:Board may refuse to determine complaint involving collective agreement

  (3) The Board may refuse to determine any complaint made pursuant to section 97 in respect of a matter that, in the opinion of the Board, could be referred by the complainant pursuant to a collective agreement to an arbitrator or arbitration board.

• Marginal note:Burden of proof

  (4) Where a complaint is made in writing pursuant to section 97 in respect of an alleged failure by an employer or any person acting on behalf of an employer to comply with subsection 94(3), the written complaint is itself evidence that such failure actually occurred and, if any party to the complaint proceedings alleges that such failure did not occur, the burden of proof thereof is on that party.

Marginal note:Board orders

• 99 (1) If, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95, 96 or 96.1, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may

  • (a) in respect of a failure to comply with subsection 24(4), section 47.3, paragraph 50(b) or subsection 87.5(1) or (2) or 87.7(2), by order, require an employer to pay to any employee compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

  • (a.1) in respect of a contravention of subsection 34(6), by order, require an employer representative to take and carry on on behalf of any employer affected by the contravention, or to assist any such employer to take and carry on, such action or proceeding as the Board considers that the representative ought to have taken and carried on on the employer’s behalf or ought to have assisted the employer to take and carry on;

  • (b) in respect of a contravention of section 37, require a trade union to take and carry on on behalf of any employee affected by the contravention or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

  • (b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects;

  • (b.2) in respect of a failure to comply with section 87.6, by order, require an employer to reinstate any employee who the employer has failed to reinstate in accordance with that section and pay to the employee compensation not exceeding the sum that, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee;

  • (b.3) in respect of a failure to comply with subsection 94(2.1), by order, require the employer to stop using, for the duration of the dispute, the services of any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of employees in the bargaining unit on strike or locked out;

  • (c) in respect of a failure to comply with paragraph 94(3)(a), (c) or (f), by order, require an employer to

    • (i) employ, continue to employ or permit to return to the duties of their employment any employee or other 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 for a reason that is prohibited by one of those paragraphs,

    • (ii) pay to any employee or other person affected by that failure compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee or other person, and

    • (iii) rescind any disciplinary action taken in respect of and pay compensation to any employee affected by that failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;

  • (c.1) in respect of a contravention of paragraph 94(3)(d.1) or (d.2), by order, require the employer to reinstate any medical, dental, disability, life or other insurance plan, or to pay to any employee any benefits under such a plan to which the employee was entitled before the requirements of paragraphs 89(1)(a) to (d) were met;

  • (d) in respect of a failure to comply with paragraph 94(3)(e), by order, require an employer to rescind any action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;

  • (e) in respect of a failure to comply with paragraph 95(f) or (h), by order, require a trade union to reinstate or admit an employee as a member of the trade union;

  • (f) in respect of a failure to comply with paragraph 95(g), (h) or (i), by order, require a trade union to rescind any disciplinary action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the trade union; and

  • (g) in respect of a contravention of section 96.1, by order, require an employer to pay to any employee affected by that contravention compensation not exceeding the sum that, in the Board’s opinion, is equivalent to the remuneration that would, but for that contravention, have been paid by the employer to that employee.

• Marginal note:Idem

  (2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.

Marginal note:Certification

99.1 The Board may certify a trade union despite a lack of evidence of majority support if

• (a) the employer has failed to comply with section 94; and

• (b) the Board is of the opinion that, but for the unfair labour practice, the trade union could reasonably have been expected to have had the support of a majority of the employees in the unit.

Offences and Punishment

Marginal note:Lockout contrary to this Part

• 100 (1) Every employer who declares or causes a lockout contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the lockout continues.

• Marginal note:Idem

  (2) Every person who, on behalf of an employer, declares or causes a lockout contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

• Marginal note:Strike contrary to this Part

  (3) Every trade union that declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars for each day that the strike continues.

• Marginal note:Idem

  (4) Every officer or representative of a trade union who declares or authorizes a strike contrary to this Part is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

Marginal note:General offences by persons

• 101 (1) Subject to section 100, every person other than an employer or a trade union who contravenes or fails to comply with any provision of this Part other than section 50, 94 or 95 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.

• Marginal note:General offences by employers or trade unions

  (2) Subject to section 100, every employer or trade union who or that contravenes or fails to comply with any provision of this Part other than section 50, 94 or 95 is guilty of an offence and liable on summary conviction to a fine not exceeding ten thousand dollars.

Marginal note:Further offences

102 Every person who

• (a) being required to attend to give evidence pursuant to paragraph 16(a), fails, without valid excuse, to attend accordingly,

• (b) being commanded to produce, pursuant to paragraph 16(a), any document or thing in their possession or under their control, fails to produce the document or thing,

• (c) refuses to be sworn or to affirm, as the case may be, after being required to do so pursuant to paragraph 16(a), or

• (d) refuses to answer any proper question put to them, pursuant to paragraph 16(a), by the Board, a conciliation board, a conciliation commissioner, an arbitrator or an arbitration board,

is guilty of an offence and liable on summary conviction to a fine not exceeding four hundred dollars.

Marginal note:Prosecution of employers’ organizations, trade unions and councils of trade unions

• 103 (1) A prosecution for an offence under this Part may be brought against and in the name of an employers’ organization, a trade union or a council of trade unions.

• Marginal note:Idem

  (2) For the purpose of a prosecution under subsection (1),

  • (a) an employers’ organization, trade union or council of trade unions shall be deemed to be a person; and

  • (b) any act or thing done or omitted to be done by an officer or agent of an employers’ organization, trade union or council of trade unions within the scope of their authority to act on behalf of the employers’ organization, trade union or council of trade unions shall be deemed to be an act or thing done or omitted to be done by the employers’ organization, trade union or council of trade unions.

Marginal note:Consent of Board before prosecution

104 Except with the consent in writing of the Board, no prosecution shall be instituted in respect of an offence under this Part.

DIVISION VIIGeneral

Promotion of Industrial Peace

Marginal note:Round-table meetings

104.1 The Minister shall meet from time to time with a group consisting of the experts in industrial relations, and representatives of employers and of trade unions, that the Minister considers advisable for the purpose of discussing industrial relations issues.

Marginal note:Mediators

• 105 (1) The Minister, on request or on the Minister’s own initiative, may, where the Minister deems it expedient, at any time appoint a mediator to confer with the parties to a dispute or difference and endeavour to assist them in settling the dispute or difference.

• Marginal note:Recommendations

  (2) At the request of the parties or the Minister, a mediator appointed pursuant to subsection (1) may make recommendations for settlement of the dispute or the difference.

Marginal note:Inquiries regarding industrial matters

106 The Minister, on application or on the Minister’s own initiative, may, where the Minister deems it expedient, make any inquiries that the Minister considers advisable regarding matters that may affect industrial relations.

Marginal note:Additional powers

107 The Minister, where the Minister deems it expedient, may do such things as to the Minister seem likely to maintain or secure industrial peace and to promote conditions favourable to the settlement of industrial disputes or differences and to those ends the Minister may refer any question to the Board or direct the Board to do such things as the Minister deems necessary.

Marginal note:Industrial Inquiry Commission

• 108 (1) Pursuant to section 106 or where, in any industry, a dispute or difference between any employer and employees exists or is apprehended, the Minister may appoint a commission to be designated as an Industrial Inquiry Commission and to which the Minister shall refer the matter under consideration for investigation and report to the Minister.

• Marginal note:Idem

  (2) Where a matter under consideration is referred, pursuant to subsection (1), to an Industrial Inquiry Commission, the Minister shall

  • (a) furnish the Commission with a statement of the matter; and

  • (b) where the inquiry will involve any particular person or organization, inform the person or organization of the appointment.

• Marginal note:Composition of Commission

  (3) An Industrial Inquiry Commission shall consist of one or more members to be appointed by the Minister.

• Marginal note:Functions of Commission

  (4) Forthwith on its appointment, an Industrial Inquiry Commission

  • (a) shall inquire into the matters referred to it by the Minister and endeavour to carry out its terms of reference; and

  • (b) where the Commission is inquiring into a dispute or difference between any employer and employees and a settlement of the dispute or difference is not effected during the inquiry, shall make its report and recommendations to the Minister within fourteen days after its appointment or within such longer period as the Minister may allow.

• Marginal note:Distribution and publication of report

  (5) On receipt of a report of an Industrial Inquiry Commission relating to any dispute or difference between any employer and employees, the Minister shall

  • (a) furnish a copy of the report to each employer and trade union involved in the dispute or difference; and

  • (b) publish the report in such manner as the Minister considers advisable.

• Marginal note:Powers of Commission

  (6) An Industrial Inquiry Commission has all of the powers of a person appointed as a Commissioner under Part I of the Inquiries Act.

Vote on Employer’s Offer

Marginal note:Minister may order vote to be held

• 108.1 (1) Where notice to bargain collectively has been given under this Part, and the Minister is of the opinion that it is in the public interest that the employees in the affected bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the trade union in respect of all matters remaining in dispute between the parties, the Minister may

  • (a) on such terms and conditions as the Minister considers appropriate, direct that a vote of the employees in the bargaining unit to accept or reject the offer be held as soon as possible; and

  • (b) designate the Board, or any other person or body, to be in charge of conducting that vote.

• Marginal note:No effect on time limits or periods

  (2) A direction under subsection (1) that a vote be held, or the holding of that vote, does not abridge or extend any time limit or period provided for in this Part, including those stipulated in section 89 for the acquisition of the right to lockout or strike.

• Marginal note:Consequences of favourable vote

  (3) Where the majority of the employees participating in the vote accept the employer’s last offer,

  • (a) the parties are bound by that offer and shall, without delay, enter into a collective agreement that incorporates the terms of that offer; and

  • (b) any lockout or strike not prohibited by this Part that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance shall cease forthwith.

• Marginal note:Powers respecting vote

  (4) The Board or other person or body in charge of conducting the vote shall determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.