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

Certification of Bargaining Agents and Related Matters

Marginal note:Duty to certify trade union

28 The Board shall, subject to this Part, certify a trade union as the bargaining agent for a bargaining unit if the Board

• (a) has received from the trade union an application for certification as the bargaining agent for a unit;

• (b) has determined the unit that constitutes a unit appropriate for collective bargaining; and

• (c) is satisfied that, as of the date of the filing of the application or of any other date that the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent.

Marginal note:Representation vote

• 29 (1) The Board may, in any case, for the purpose of satisfying itself as to whether employees in a unit wish to have a particular trade union represent them as their bargaining agent, order that a representation vote be taken among the employees in the unit.

• Marginal note:Employees not in a unit

  (1.1) 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 an employee in the bargaining unit on strike or locked out, is not an employee in the unit.

• Marginal note:Mandatory vote

  (2) If a trade union applies for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, and the Board is satisfied that not less than 35% and not more than 50% of the employees in the unit are members of the trade union, the Board shall order that a representation vote be taken among the employees in the unit.

• Marginal note:Determination of union membership

  (3) Where the Board is satisfied that a trade 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 may disregard those requirements in determining whether a person is a member of a trade union.

Marginal note:Conduct of vote

• 30 (1) Where the Board orders that a representation vote be taken among employees in a unit, the Board shall

  • (a) determine the employees that are eligible to vote; and

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

• Marginal note:Choice

  (2) Where the Board orders that a representation vote be taken on an application by a trade union for certification as the bargaining agent for a unit in respect of which no other trade union is the bargaining agent, the Board shall include on the ballots a choice whereby an employee may indicate that they do not wish to be represented by any trade union named on the ballots.

• Marginal note:Exception

  (3) Notwithstanding subsection (2), where the employees in a unit have cast ballots in favour of all trade unions involved in a representation vote totalling more than fifty per cent of all the ballots cast but have not given majority support to one trade union in that vote and, as a result, a second or subsequent representation vote is required, the Board shall not be required to include the choice referred to in subsection (2) in the ballots for the second or subsequent vote.

Marginal note:Result of representation vote

• 31 (1) Subject to subsection (2), the Board shall determine the result of a representation vote on the basis of the ballots cast by the majority of employees voting.

• Marginal note:Idem

  (2) Where, on considering the result of a representation vote, the Board determines that less than thirty-five per cent of the employees who are eligible to vote have voted, the Board shall determine that the representation vote is void.

• Marginal note:Idem

  (3) A vote by the majority of the employees voting in a representation vote is evidence that a majority of employees in the unit in respect of which the vote was ordered are of the opinion expressed in the vote of the majority of employees voting.

Marginal note:Council of trade unions

• 32 (1) Where two or more trade unions have formed a council of trade unions, the council so formed may apply to the Board for certification as the bargaining agent for a unit in the same manner as a trade union.

• Marginal note:Certification of council of trade unions

  (2) The Board may certify a council of trade unions as the bargaining agent for a bargaining unit where the Board is satisfied that the requirements for certification prescribed by or pursuant to this Part have been met.

• Marginal note:Membership in council of trade unions

  (3) Membership in any trade union that forms part of a council of trade unions is deemed to be membership in the council of trade unions.

• Marginal note:Council of trade unions bound by collective agreement

  (4) Where a council of trade unions is certified by the Board as the bargaining agent for a bargaining unit,

  • (a) the council of trade unions and each trade union forming the council of trade unions is bound by any collective agreement entered into by the council of trade unions and the employer concerned; and

  • (b) this Part applies, except as otherwise provided, as if the council of trade unions were a trade union.

Marginal note:Designation of employers’ organization

• 33 (1) Where a trade union applies for certification as the bargaining agent for a unit comprised of employees of two or more employers who have formed an employers’ organization, the Board may designate the employers’ organization to be the employer if it is satisfied that each of the employers forming the employers’ organization has granted appropriate authority to the employers’ organization to enable it to discharge the duties and responsibilities of an employer under this Part.

• Marginal note:New members

  (1.1) The Board may, on application by the employers’ organization, include in the designation referred to in subsection (1) any employer that becomes a member of the employers’ organization if it is satisfied that that employer has granted appropriate authority to the employers’ organization to enable the employers’ organization to discharge the duties and responsibilities of an employer and that such an inclusion would ensure the fulfilment of the objectives of this Part.

• Marginal note:Designated employers’ organization deemed to be employer

  (2) Where the Board designates an employers’ organization as an employer pursuant to subsection (1),

  • (a) the employers’ organization and each employer forming the employers’ organization is bound by any collective agreement entered into by the employers’ organization and the trade union concerned; and

  • (b) this Part applies, except as otherwise provided, as if the employers’ organization were an employer.

• Marginal note:Employer ceasing to be member of employers’ organization

  (3) Where an employer ceases to be a member of an employers’ organization or withdraws the authority referred to in subsection (1) or (1.1) that the employer granted to the employers’ organization, the employer

  • (a) continues to be bound by any collective agreement applicable to the employer’s employees that was entered into by the employers’ organization; and

  • (b) may be required to commence collective bargaining in accordance with section 48.

Marginal note:Certification in long-shoring and other industries

• 34 (1) Where employees are employed in

  • (a) the long-shoring industry, or

  • (b) such other industry in such geographic area as may be designated by regulation of the Governor in Council on the recommendation of the Board,

  the Board may determine that the employees of two or more employers actively engaged in the industry in the geographic area constitute a unit appropriate for collective bargaining and may, subject to this Part, certify a trade union as the bargaining agent for the unit.

• Marginal note:Recommendation of Board

  (2) No recommendation under paragraph (1)(b) shall be made by the Board unless, on inquiry, it is satisfied that the employers actively engaged in an industry in a particular geographic area obtain their employees from a group of employees the members of which are employed from time to time by some or all of those employers.

• Marginal note:Representative

  (3) Where the Board, pursuant to subsection (1), certifies a trade union as the bargaining agent for a bargaining unit, the Board shall, by order,

  • (a) require the employers of the employees in the bargaining unit

    • (i) to jointly choose a representative, and

    • (ii) to inform the Board of their choice within the time period specified by the Board; and

  • (b) appoint the representative so chosen as the employer representative for those employers.

• Marginal note:Powers of Board

  (4) Where the employers fail to comply with an order made under paragraph (3)(a), the Board shall, after affording to the employers a reasonable opportunity to make representations, by order, appoint an employer representative of its own choosing.

• Marginal note:New representative

  (4.1) On application by one or more employers of employees in the bargaining unit, the Board may, if it is satisfied that the employer representative is no longer qualified to act in that capacity, revoke the appointment of the employer representative and appoint a new representative.

• Marginal note:Status of employer representative

  (5) An employer representative shall be deemed to be an employer for the purposes of this Part and, by virtue of having been appointed under this section, has the power to, and shall, discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.

• Marginal note:Costs

  (5.1) The employer representative may require each employer of employees in the bargaining unit to remit its share of the costs that the employer representative has incurred or estimates will be incurred in fulfilling its duties and responsibilities under this Part and under the terms of the collective agreement.

• Marginal note:Duty of employer representative

  (6) In the discharge of the duties and responsibilities of an employer under this Part, an employer representative, or a person acting for such a representative, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts.

• Marginal note:Board to determine questions

  (7) The Board shall determine any question that arises under this section, including any question relating to the choice or appointment of the employer representative.

Marginal note:Board may declare single employer

• 35 (1) Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may, by order, declare that for all purposes of this Part the employers and the federal works, undertakings and businesses operated by them that are specified in the order are, respectively, a single employer and a single federal work, undertaking or business. Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.

• Marginal note:Review of bargaining units

  (2) The Board may, in making a declaration under subsection (1), determine whether the employees affected constitute one or more units appropriate for collective bargaining.

Marginal note:Effect of certification

• 36 (1) Where a trade union is certified as the bargaining agent for a bargaining unit,

  • (a) the trade union so certified has exclusive authority to bargain collectively on behalf of the employees in the bargaining unit;

  • (b) the certification of any trade union that was previously certified as the bargaining agent for any employees in the bargaining unit is deemed to be revoked to the extent that the certification relates to those employees;

  • (c) the trade union so certified is substituted as a party to any collective agreement that affects any employees in the bargaining unit, to the extent that the collective agreement relates to those employees, in the place of the bargaining agent named in the collective agreement or any successor thereto; and

  • (d) the trade union so certified is deemed to be the bargaining agent for the purposes of paragraph 50(b).

• Marginal note:Notice to bargain

  (2) Where, pursuant to paragraph (1)(c), a trade union is substituted as a party to a collective agreement, the trade union may, within three months after the date on which it is certified as the bargaining agent for a bargaining unit affected by the collective agreement, require the employer who is a party to the collective agreement to commence collective bargaining for the purpose of renewing or revising the collective agreement or entering into a new collective agreement.

• Marginal note:Limitation

  (3) Subsection (2) does not apply to a trade union certified as a result of an application made under section 24.1.

Marginal note:Just cause requirement

• 36.1 (1) During the period that begins on the date of certification and ends on the date on which a first collective agreement is entered into, the employer must not dismiss or discipline an employee in the affected bargaining unit without just cause.

• Marginal note:Arbitration

  (2) Where a disagreement relating to the dismissal or discipline of an employee during the period referred to in subsection (1) arises between the employer and the bargaining agent,

  • (a) the bargaining agent may submit the disagreement to an arbitrator for final settlement as if it were a difference; and

  • (b) sections 57 to 66 apply, with the modifications that the circumstances require, to the disagreement.

Marginal note:Duty of fair representation

37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.