Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 (2nd Supp.))

Marginal note:No certification where previous application refused within six months

22 Where an application for certification of an employee organization as bargaining agent for a proposed bargaining unit has been refused by the Board, the Board shall not certify the employee organization as bargaining agent for the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the Board last refused certification, unless the Board is satisfied that the previous application was refused by reason only of a technical error or omission made in connection therewith.

Determination of Appropriate Bargaining Units

Marginal note:Determination of unit

• 23 (1) Where an employee organization has made application to the Board for certification as described in section 18, the Board shall determine the relevant group of employees that constitutes a unit appropriate for collective bargaining.

• Marginal note:Matters to be taken into account

  (2) In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board shall take into account, having regard to the proper functioning of this Part, the duties and classification of the employees in the proposed bargaining unit in relation to any plan of classification as it may apply to the employees in the proposed bargaining unit.

• Marginal note:Composition of bargaining unit

  (3) For the purposes of this Part, a unit of employees may be determined by the Board to constitute a unit appropriate for collective bargaining whether or not its composition is identical with the group of employees in respect of which application for certification was made.

Marginal note:Determination of membership in bargaining units

24 Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, determine the question.

Certification

Marginal note:Certification of employee organization as bargaining unit

25 The Board shall, subject to this Part, certify an employee organization as bargaining agent for the employees in a bargaining unit if the Board

• (a) has received from the employee organization an application for certification as the bargaining agent for the bargaining unit in accordance with this Part;

• (b) has determined the group of employees that constitutes a unit appropriate for collective bargaining in accordance with section 23;

• (c) is satisfied that a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent; and

• (d) is satisfied that the persons representing the employee organization in the making of the application have been duly authorized to make the application.

Marginal note:Powers of Board in relation to certification

• 26 (1) For the purpose of enabling the Board to discharge any obligation imposed by section 25 to satisfy itself as to the matters described in paragraphs (c) and (d) of that section, the Board may

  • (a) examine, in accordance with any regulations that may be made by the Board in that behalf, such evidence as is submitted to it respecting membership of the employees in the proposed bargaining unit in the employee organization seeking certification;

  • (b) make or cause to be made such examination of records or make such inquiries as it deems necessary; and

  • (c) examine documents forming or relating to the constitution or articles of association of the employee organization seeking certification.

• Marginal note:Representation vote directed to be taken

  (2) For the purpose of satisfying itself under paragraph 25(c) that a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, the Board, in its sole discretion, may direct that a representation vote be taken among the employees in the bargaining unit.

• Marginal note:Arrangements to be made for representation vote

  (3) If, under subsection (2), the Board directs that a representation vote be taken, the Board shall

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

  • (b) make such arrangements and give such directions as it deems requisite 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.

• (4) [Repealed, 1993, c. 34, s. 100]

Where Certification Prohibited

Marginal note:Where participation by employer in formation of employee organization

• 27 (1) The Board shall not certify as bargaining agent for a bargaining unit any employee organization in the formation or administration of which there has been or is, in the opinion of the Board, participation by the employer affected or any person acting on behalf of the employer of such a nature as to impair its fitness to represent the interests of employees in the bargaining unit.

• Marginal note:Where money received or paid for activities by political party

  (2) The Board shall not certify as bargaining agent for a bargaining unit any employee organization that

  • (a) receives from any of its members who are employees,

  • (b) handles or pays in its own name on behalf of members who are employees, or

  • (c) requires as a condition of membership therein the payment by any of its members of

  any money for activities carried on by or on behalf of any political party.

• Marginal note:Where discrimination by reason of race, etc.

  (3) The Board shall not certify as bargaining agent for a bargaining unit any employee organization that discriminates against any employee because of sex, race, national origin, colour or religion.

Effect of Certification

Marginal note:Effect of certification

• 28 (1) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit, the employee organization has the exclusive right under this Part

  • (a) to bargain collectively on behalf of employees in the bargaining unit and to bind them by a collective agreement until its certification in respect of the bargaining unit is revoked; and

  • (b) to represent, in accordance with this Part, an employee in the presentation or reference to adjudication of a grievance relating to the interpretation or application of a collective agreement or arbitral award applying to the bargaining unit to which the employee belongs.

• Marginal note:Effect of certification on previously certified bargaining agent

  (2) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit and another employee organization had been previously certified as bargaining agent in respect of employees in the bargaining unit, the certification of the previously certified bargaining agent is thereupon revoked in respect of those employees.

• Marginal note:Effect of certification on existing collective agreement or arbitral award

  (3) Where an employee organization is certified under this Part as the bargaining agent for a bargaining unit and at the time of certification, a collective agreement or arbitral award binding on the employees in the bargaining unit is in force, the employee organization

  • (a) shall be substituted as a party to the agreement or award in place of the bargaining agent that had been a party thereto; and

  • (b) may, notwithstanding anything contained in the agreement or award, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, on two months notice to the employer affected given within one month from the certification.

• Marginal note:Rights of previous or new bargaining agent

  (4) In any case where subsection (2) or (3) applies, any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of that subsection shall, on application by the employer affected or the previous or the new bargaining agent, be determined by the Board.

Revocations of Certification

On Application

Marginal note:Application for declaration that employee organization no longer represents employees

• 29 (1) If a collective agreement or an arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in the bargaining unit may, in accordance with subsection (2), apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees in the bargaining unit.

• Marginal note:When application may be made

  (2) An application under subsection (1) may be made

  • (a) where the collective agreement or arbitral award is for a term of not more than two years, only after the commencement of the last two months of its operation;

  • (b) where the collective agreement or arbitral award is for a term of more than two years, only after the commencement of the twenty-third month of its operation and before the commencement of the twenty-fifth month of its operation, during the two month period immediately preceding the end of each year that it continues to operate after the second year of its operation, or after the commencement of the last two months of its operation, as the case may be; and

  • (c) where the collective agreement provides that it will continue to operate after the term specified therein for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal, with or without modifications, of the agreement or with a view to the making of a new collective agreement, at any time permitted by paragraph (a) or (b), as the case may be, or during the two month period immediately preceding the end of each year that the agreement continues to operate after the term specified therein.

• Marginal note:If no collective agreement or award in force

  (3) If no collective agreement or arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in the bargaining unit may, at any time after the 12-month period following the date of certification of the bargaining agent for that bargaining unit, apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees in the bargaining unit.

• Marginal note:Taking of representation vote

  (4) On an application under subsection (1) or (3), the Board in its sole discretion may direct the taking of a representation vote 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, and in relation to the taking of such a vote the provisions of subsection 26(3) apply.

• Marginal note:Revocation of certification of employee organization

  (5) After hearing any application under subsection (1) or (3), the Board shall revoke the certification of an employee organization as bargaining agent for a bargaining unit if the Board is satisfied that a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization.

For Abandonment or Other Cause

Marginal note:Abandonment of certification

• 30 (1) The Board shall revoke the certification of a bargaining agent where the bargaining agent advises the Board that it wishes to give up or abandon its certification or where the Board, on application by the employer or any employee affected, determines that the bargaining agent has ceased to act as bargaining agent.

• Marginal note:Revocation where certification prohibited under s. 27

  (2) Where the Board, on application to it by the employer or employee, determines that a bargaining agent would not, if it were an employee organization applying for certification, be certified by the Board by reason of a prohibition contained in section 27, the Board shall revoke the certification of the bargaining agent.

For Fraud

Marginal note:Certification obtained by fraud

• 31 (1) Where at any time the Board is satisfied that an employee organization has obtained certification as bargaining agent for a bargaining unit by fraud, the Board shall revoke the certification of the employee organization.

• Marginal note:Effect of revocation

  (2) An employee organization the certification of which is revoked pursuant to subsection (1) is not entitled to claim any right or privilege flowing from that certification, and any collective agreement or arbitral award applying to the bargaining unit for which it was certified, to which the employee organization was a party, is void.

Revocation of Certification of Council

Marginal note:Revocation of certification of council

• 32 (1) Where an employee organization that is a council of employee organizations has been certified as bargaining agent for a bargaining unit, the Board, on application to it by the employer affected or an employee organization that forms or has formed part of the council, shall revoke the certification of the council where it determines that the council no longer meets the additional requirements for certification required for a council of employee organizations by subsection 19(2) by reason of an alteration in the constituent membership of the council or any other circumstance.

• Marginal note:Subsection (1) is in addition to other circumstances

  (2) The circumstances set out in subsection (1) shall be in addition to the circumstances in which, pursuant to section 29, 30 or 31, the certification of a bargaining agent may be revoked.