[36] Bill 31 Original (PDF)
B031_e
Bill 31 1998
An Act to promote economic development and create jobs in the construction industry, to further workplace democracy and to make other amendments to labour and employment statutes
Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
CONTENTS
Part
I
II
III
IV
Labour Relations Act, 1995 amendments
Employment Standards Act amendments
Occupational Health and Safety Act amendments
Commencement and Short Title
Sections
1-23
24-48
49-60
61,62
Partie
I
II
III
IV
Modification de la Loi de 1995 sur les relations de travail
Modification de la Loi sur les normes d'emploi
Modification de la Loi sur la santé et la sécurité au travail
Entrée en vigueur et titre abrégé
Articles
1-23
24-48
49-60
61, 62
PART I
Labour Relations Act, 1995 Amendments
1. (1) The definition of "collective agreement" in subsection 1 (1) of the Labour Relations Act, 1995 is amended by inserting "and does not include a project agreement under section 163.1" after "agreement" in the twelfth line.
(2) Subsection 1 (1) of the Act is amended by adding the following definition:
"
Director of Labour Management Services" means the Director of Labour Management Services in the Ministry of Labour or, if there ceases to be a civil servant with that title, the civil servant or servants who are assigned the duties formerly carried out by the Director of Labour Management Services. ("directeur des relations patronales-syndicales")
2. Subsection 8 (3) of the Act is repealed and the following substituted:
Membership in trade union
(3) The determination under subsection (2) shall be based only upon the information provided in the application for certification and the accompanying information provided under subsection 7 (13).
3. The Act is amended by adding the following section:
Disagreement by employer with union's estimate
8.1 (1) If the employer disagrees with the trade union's estimate, included in the application for certification, of the number of individuals in the unit, the employer may give the Board a notice that it disagrees with that estimate.
Content of notice
(2) A notice under subsection (1) must include,
(a) the description of the bargaining unit that the employer proposes or a statement that the employer agrees with the description of the bargaining unit included in the application for certification;
(b) the employer's estimate of the number of individuals in the bargaining unit described in the application for certification; and
(c) if the employer proposes a different bargaining unit from that described in the application for certification, the employer's estimate of the number of individuals in the bargaining unit the employer proposes.
Deadline for notice
(3) A notice under subsection (1) must be given within two days (excluding Saturdays, Sundays and holidays) after the day on which the employer receives the application for certification.
Sealing of ballot boxes
(4) If the Board receives a notice under subsection (1), the Board shall direct that the ballot boxes from the representation vote be sealed unless the trade union and the employer agree otherwise.
Board determinations, etc.
(5) The following apply if the Board receives a notice under subsection (1):
1. The Board shall not do anything under section 10 except as allowed under paragraph 2 or as required under paragraph 8.
2. If the Board did not direct that the ballot boxes be sealed, the Board may dismiss the application under subsection 10 (2).
3. Unless the Board dismisses the application as allowed under paragraph 2, the Board shall determine whether the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining. The determination shall be based only upon that description.
4. If the Board determines that the description of the bargaining unit included in the application for certification could be appropriate for collective bargaining, the Board shall determine the number of individuals in the unit as described in the application.
5. If the Board determines that the description of the bargaining unit included in the application for certification could not be appropriate for collective bargaining,
i. the Board shall determine, under section 9, the unit of employees that is appropriate for collective bargaining, and
ii. the Board shall determine the number of individuals in that unit.
6. After the Board's determination of the number of individuals in the unit under paragraph 4 or 5, the Board shall determine the percentage of the individuals in the bargaining unit who appear to be members of the union at the time the application for certification was filed, based upon the Board's determination under paragraph 4 or 5 and the information provided under subsection 7 (13).
7. If the percentage determined under paragraph 6 is less than 40 per cent, the Board shall dismiss the application for certification and, if the ballot boxes were sealed, the Board shall direct that the ballots be destroyed without being counted.
8. If the percentage determined under paragraph 6 is 40 per cent or more,
i. if the ballot boxes were sealed, the Board shall direct that the ballot boxes be opened and the ballots counted, subject to any direction the Board has made under subsection 8 (7), and
ii. the Board shall either certify the trade union under subsection 10 (1) or dismiss the application under subsection 10 (2).
4. Section 10 of the Act is amended by adding the following subsection:
Same
(4) For greater certainty, subsection (3) does not apply with respect to a dismissal under paragraph 7 of subsection 8.1 (5).
5. (1) Subsection 11 (1) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:
(1) Upon the application of a trade union, the Board may order another representation vote in the following circumstances:
. . . . .
(2) Paragraph 2 of subsection 11 (1) of the Act is repealed and the following substituted:
2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
(3) Paragraph 3 of subsection 11 (1) of the Act is repealed.
(4) Subsection 11 (2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:
(2) Upon the application of an interested person, the Board may order another representation vote in the following circumstances:
. . . . .
(5) Paragraph 2 of subsection 11 (2) of the Act is repealed and the following substituted:
2. The result of the contravention is that a prior representation vote did not likely reflect the true wishes of the employees in the bargaining unit about being represented by the trade union.
(6) Paragraph 3 of subsection 11 (2) of the Act is repealed.
(7) Subsections 11 (3) and (4) of the Act are repealed and the following substituted:
Use of prior representation vote
(3) The Board may consider the results of a prior representation vote when making a decision under this section.
Effect of prior representation vote
(4) Subsections 10 (1) and (2) do not apply with respect to a prior representation vote if a new representation vote is ordered under this section.
Additional power
(5) Without restricting its powers under section 96, the Board may do anything to ensure that a new representation vote ordered under this section reflects the true wishes of the employees in the bargaining unit.
6. Subsection 44 (2) of the Act is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c) and by adding the following clause:
(d) that applies to employees performing maintenance who are represented by a trade union that, according to trade union practice, pertains to the construction industry if any of the employees were referred to their employment by the trade union.
7. Subsection 48 (5) of the Act is amended by striking out "shall" in the second line and substituting "may".
8. Subsection 79 (5) of the Act is repealed and the following substituted:
Exceptions
(5) Subsections (3) and (4) do not apply,
(a) to an employee in the construction industry; or
(b) to an employee performing maintenance who is represented by a trade union that, according to trade union practice, pertains to the construction industry if the employee or any of the other employees in the bargaining unit the employee is in were referred to their employment by the trade union.
9. Section 96 of the Act is amended by adding the following subsection:
No certification
(8) The Board shall not, under this section, certify a trade union as the bargaining agent of employees in a bargaining unit.
10. Subsection 98 (1) of the Act is repealed and the following substituted:
Board power re: interim orders
(1) The Board may make interim orders concerning procedural matters on application in a pending proceeding and, with respect to the Board, the power to make interim orders under this subsection applies instead of the power under subsection 16.1 (1) of the Statutory Powers Procedure Act.
11. (1) Subsection 110 (12) of the Act is repealed and the following substituted:
Death or incapacity
(12) Despite subsections (9), (10) and (11), if a member representative of either employers or employees dies or, in the opinion of the chair, is unable or unwilling to continue to hear and determine an application, request, complaint, matter or thing, the chair or vice-chair, as the case may be, who was also hearing it may sit alone to hear and determine it and may exercise all of the jurisdiction and powers of the Board when doing so.
(2) Subsection 110 (17) of the Act is repealed and the following substituted:
Rules of practice
(17) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
(3) Subsection 110 (18) of the Act is amended by striking out "Board" in the first line and substituting "chair".
(4) Subsection 110 (18) of the Act is amended by adding the following paragraph:
0.1 Section 8.1 (Disagreement by employer with union's estimate).
12. The Act is amended by adding the following section immediately after section 118:
Powers under the Canada Labour Code
118.1 If a regulation under the Canada Labour Code incorporates by reference all or part of this Act or a regulation under this Act, the Board and any person having powers under this Act may exercise any powers conferred under the regulation under the Canada Labour Code.
13. (1) Subsection 119 (4) of the Act is amended by striking out "director of the Office of Arbitration" in the seventh line and substituting "Director of Labour Management Services".
(2) Subsection 119 (5) of the Act is amended by striking out "director of the Office of Arbitration" in the seventh line and substituting "Director of Labour Management Services".
(3) Subsection 119 (6) of the Act is amended by striking out "director of the Office of Arbitration" in the first and second lines and substituting "Director of Labour Management Services".
14. (1) Paragraph 4 of subsection 120 (1) of the Act is repealed and the following substituted:
4. The Director of Labour Management Services.
(2) Paragraph 1 of subsection 120 (2) of the Act is repealed and the following substituted:
1. The Director of Labour Management Services.
15. Section 125 of the Act is amended by adding the following clauses:
(l.1) prescribing the parties to an application under subsection 163.1 (3) or governing the specifying of such parties by the Board;
(l.2) designating projects in the construction industry that are not industrial projects as projects that may be the subject of a project agreement under section 163.1 and providing for section 163.1 to apply with respect to such projects, subject to the modifications prescribed in the regulations;
(l.3) prescribing, for the purposes of paragraph 6 of subsection 163.1 (9), circumstances in which the Board may declare that a proposed project agreement shall not come into force.
16. (1) The definition of "employer" in section 126 of the Act is amended by inserting "other than a non-construction employer" after "person" in the first line and after "employer" in the fourth line.
(2) Section 126 of the Act is amended by adding the following definition:
"
non-construction employer" means a person who is not engaged in a business in the construction industry or whose only engagement in such a business is incidental to the person's primary business. ("employeur extérieur à l'industrie de la construction")
17. The Act is amended by adding the following sections:
Grandparented non-construction employers
127.1 (1) This section applies with respect to a non-construction employer if, on the day this section comes into force, a trade union represents employees of the non-construction employer employed, or who may be employed, in the construction industry.
Continued application of certain sections
(2) Sections 127 to 168 continue to apply, subject to subsection (3), with respect to the non-construction employer and the employees the trade union represents as if the definition of employer in section 126 included the non-construction employer.
Exception if declaration
(3) If a declaration is made under subsection 127.2 (2) that a trade union no longer represents employees employed, or who may be employed, in the construction industry, subsection (2) of this section ceases to apply with respect to the non-construction employer and those employees.
Non-construction employers, application for termination
127.2 (1) This section applies with respect to a trade union that represents employees of a non-construction employer employed, or who may be employed, in the construction industry.
Declaration
(2) On the application of a non-construction employer, the Board shall declare that a trade union no longer represents the employees of the non-construction employer employed in the construction industry if, on the day the application is made, the non-construction employer does not employ any such employees represented by the trade union.
Collective agreement ceases to apply
(3) Upon the Board making a declaration under subsection (2), any collective agreement binding the non-construction employer and the trade union ceases to apply with respect to the non-construction employer in so far as the collective agreement applies to the construction industry.
Amendment of unit
(4) The Board may re-define the composition of a bargaining unit affected by a declaration under subsection (2) if the bargaining unit also includes employees who are not employed in the construction industry.
18. Subsections 133 (2), (3) and (4) of the Act are repealed and the following substituted:
Requirements for referral
(2) A referral under subsection (1) shall be in writing in the prescribed form and may be made at any time after the written grievance has been delivered to the other party.
Copy of referral to other party
(3) A party that refers a grievance under subsection (1) shall, at the same time, give a copy of the referral to the other party.
Board may refuse
(4) The Board may refuse to accept a referral.
Decision to accept or not
(5) In deciding whether or not to accept a referral, the Board is not required to hold a hearing and may appoint a labour relations officer to inquire into the referral and report to the Board.
Hearing, etc.
(6) If the Board accepts the referral, the Board shall appoint a date for and hold a hearing within 14 days after receipt of the referral and may appoint a labour relations officer to confer with the parties and endeavour to effect a settlement before the hearing.
When hearing not required
(7) The Board is not required to hold a hearing if the responding party does not file any material.
If no hearing
(8) If the Board does not hold a hearing in the circumstances described in subsection (7), the Board may determine the matter with reference only to the material filed by the party referring the grievance.
Jurisdiction of Board
(9) If the Board accepts the referral, the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 48 (10) and (12) to (20) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
Schedule of fees
(10) The Lieutenant Governor in Council may establish a schedule of fees to be charged to parties in proceedings under this section and, without limiting the generality of what can be included in the schedule, the schedule may provide for the following:
1. Fees payable for referring grievances or participating in proceedings.
2. Fees payable for each hearing day, including hearing days scheduled by the Board but not used.
3. Different fees for the referring party and for the responding parties.
4. A single fee for all the responding parties with the amount to be paid by each responding party to be determined by the Board.
Same
(11) The schedule of fees may also provide for when the fees are due, to whom the fees shall be paid and what the form of payment must be.
No participation if fees unpaid
(12) A party may participate in a proceeding only if the fees payable by the party are paid in accordance with the schedule of fees.
Fees ordered, non-participating party
(13) If an award is made against a party who was given notice of but did not participate in proceedings under this section, the Board may order the party to pay the party in whose favour the award is made, an amount not exceeding the fees paid by the party in whose favour the order is made.
Same, party not in a position to participate
(14) The Board may order a party who participated in proceedings under this section but who was not in a position to participate on a day on which proceedings were scheduled to pay each of the other parties an amount not exceeding the fees paid by that party.
Exception, unreasonable refusal of adjournment
(15) The Board shall not make an order under subsection (14) ordering a party who was not in a position to participate to pay an amount to another party if the other party refused, unreasonably, to consent to an adjournment requested by the party who was not in a position to participate.
Fees to Consolidated Revenue Fund
(16) Fees payable by a party to the Board shall be paid to the Board for payment into the Consolidated Revenue Fund.
Schedule not a regulation
(17) The schedule of fees is not a regulation within the meaning of the Regulations Act.
19. Subsection 144 (3) of the Act is amended by inserting "or a project agreement under section 163.1" after "subsection 162 (1)" in the fifteenth line and in the second last and last lines.
20. Subsection 162 (2) of the Act is amended by striking out "Subject to sections 153 and 161" at the beginning and substituting "Subject to sections 153, 161 and 163.1".
21. The Act is amended by adding the following section:
Project agreements
163.1 (1) A proponent of a construction project who believes that the project is economically significant and who wishes to have a project agreement shall do the following:
1. Create a list of potential parties to the agreement, consisting of bargaining agents, subject to subsection (2).
2. Give each bargaining agent on the list a notice that the proponent wishes to have a project agreement. The notice must include a copy of the list, a general description of the project and the estimated cost of the project.
3. Give a copy of the notice to each employee bargaining agency to which any of the bargaining agents on the list belong.
4. Give a copy of the notice to each employer bargaining agency that is a party to a provincial agreement by which a bargaining agent on the list is bound.
5. Give the Board a copy of the notice and evidence, in such form as the Board requires, that the notice has been given to each bargaining agent on the list.
Requirements for list of potential parties
(2) The following apply with respect to the list of potential parties created by the proponent:
1. A bargaining agent may be included on the list only if it is bound by a provincial agreement.
2. A bargaining agent may be included on the list only if the proponent anticipates the project may include work within the bargaining agent's geographic jurisdiction for which the bargaining agent would select, refer, assign, designate, or schedule persons for employment.
Objections to Board
(3) A bargaining agent on the list may apply to the Board for an order that the project may not be the subject of a project agreement and the following apply with respect to such an application:
1. The application must be made within 14 days after receiving the notice that the proponent wishes to have a project agreement.
2. The parties to the application are the applicant, the proponent and such other persons as may be prescribed under the regulations or as may be specified by the Board in accordance with the regulations.
3. The Board shall dismiss the application if the project is an industrial project in the industrial, commercial and institutional sector of the construction industry.
4. The Board shall dismiss the application if the project is designated in the regulations as a project that may be the subject of a project agreement.
5. If neither paragraph 3 nor 4 apply, the Board shall grant the application and make an order that the project may not be the subject of a project agreement.
6. An order under paragraph 5 does not affect the preparation of another list and the giving of other notices under subsection (1) even if they relate to the same project.
Requirements for project agreements
(4) A project agreement must contain,
(a) a general description of the project; and
(b) a term providing that the agreement is in effect until the project is completed or abandoned.
Notice of proposed agreement
(5) The proponent may give notice of a proposed project agreement if at least 40 per cent of the bargaining agents on the list agree, in writing, to the giving of the notice.
Who notice given to
(6) If the proponent gives notice under subsection (5), the proponent must give notice to each bargaining agent on the list, and the proponent shall also give a copy of the notice to the Board.
Content of notice
(7) A notice under subsection (5) must include,
(a) a copy of the proposed project agreement; and
(b) the names of the bargaining agents on the list that have agreed to the giving of the notice.
Approval of agreements
(8) The following apply with respect to the approval of a project agreement:
1. A bargaining agent on the list that wishes to approve or disapprove of the proposed agreement shall do so by giving notice of that approval or disapproval to the proponent within 30 days after receiving notice of the proposed agreement.
2. A bargaining agent that gives notice of approval or disapproval shall also give a copy of the notice to the Board.
3. The proposed agreement is approved if the agreement is approved by at least 60 per cent of the bargaining agents that gave notice, either of approval or disapproval, within the time period for doing so.
4. After the time period for every bargaining agent on the list to approve or disapprove has expired, the proponent shall forthwith determine whether the proposed agreement has been approved.
5. If the proponent determines that the proposed agreement has been approved, the proponent shall forthwith give notice that the proposed agreement has been approved to every bargaining agent on the list and shall give the Board a copy of the notice and evidence, in such form as the Board requires, that the notice has been given to each bargaining agent on the list.
6. If the proponent determines that the proposed agreement has not been approved, the proponent shall forthwith give notice that the proposed agreement has not been approved to every bargaining agent on the list and shall give the Board a copy of the notice.
Challenges to agreement
(9) A bargaining agent on the list that did not give notice of approval of the proposed project agreement may challenge the proposed project agreement by giving notice to the Board within 10 days after the Board receives the evidence described in paragraph 5 of subsection (8) and the following apply with respect to such a challenge:
1. The Board shall make an order either declaring that the proposed project agreement is in force or declaring that the proposed project agreement shall not come into force.
2. Paragraphs 3 and 4 apply if,
i. the bargaining agent challenging the proposed project agreement gave notice of disapproval of the project agreement, and
ii. the proposed project agreement would result in a reduction in the total wages and benefits, expressed as a rate, of an employee represented by the bargaining agent challenging the project agreement that is larger, proportionally, than the largest reduction that would apply to an employee represented by a bargaining agent that gave notice of approval of the project agreement.
3. In the circumstances described in paragraph 2, the Board shall make an order doing the following, unless the Board considers it inappropriate to do so,
i. amending the proposed project agreement so that no reduction in the total wages and benefits, expressed as a rate, of an employee represented by the bargaining agent challenging the project agreement is greater, proportionally, than the largest reduction that would apply to an employee represented by a bargaining agent that gave notice of approval of the project agreement, and
ii. declaring that the proposed project agreement, as amended, is in force.
4. In the circumstances described in paragraph 2, if the Board considers it inappropriate to make an order under paragraph 3, the Board may make an order declaring that the proposed project agreement shall not come into force.
5. The Board may make an order declaring that the proposed project agreement shall not come into force if the requirements of subsections (1) to (8) have not been satisfied and the failure to satisfy the requirements affected the bargaining agent challenging the project agreement.
6. In the circumstances prescribed in the regulations, the Board may make an order declaring that the proposed project agreement shall not come into force.
When agreement comes into force
(10) A project agreement comes into force upon the Board making an order declaring that the proposed project agreement is in force or, if the project agreement is not challenged under subsection (9), upon the expiry of the time period for making such a challenge.
Notice of agreement in force
(11) If the project agreement comes into force, the proponent shall forthwith give notice that the project agreement is in force to the agents and agencies described in subsection (13).
Notice of order not to come into force
(12) If the Board makes an order declaring that the proposed project agreement shall not come into force, the proponent shall forthwith give notice of that order to the agents and agencies described in subsection (13).
Who notices given to
(13) The agents and agencies referred to in subsections (11) and (12) are the bargaining agents, employee bargaining agencies and employer bargaining agencies to which notice was given under subsection (1).
Effect of agreement
(14) The following apply with respect to projects to which a project agreement applies:
1. The project agreement applies to all construction work on the project that is within the jurisdiction of a bargaining agent on the list.
2. Each applicable provincial agreement, as modified by the project agreement, applies to the construction work on the project, even with respect to employers who would not otherwise be bound by the provincial agreement.
3. Subject to the project agreement, if a provincial agreement ceases to apply while the project agreement is in effect, the provincial agreement that applied when the project agreement was approved applies to the construction work on the project until a new provincial agreement is made. However, this paragraph does not apply with respect to provincial agreements that apply to work that the project agreement does not apply to.
4. No employees performing work to which the project agreement applies shall strike and no employer shall lock-out such employees while the project agreement is in effect even if a strike is called or authorized under subsection 164 (1) or a lock-out is called or authorized under subsection 164 (2).
5. For greater certainty, paragraph 4 does not affect the right to strike of an employee who performs work to which the project agreement does not apply nor does paragraph 4 affect the right of the employer to lock-out such an employee.
Non-unionized employers, applications for certification
(15) If a trade union does not have bargaining rights with respect to employees of an employer but the employer employs members of the trade union to perform work on the project, such employment shall not be considered in any application for certification by the trade union with respect to the employer.
Not voluntary recognition
(16) Becoming a party to the project agreement or operating under the project agreement shall not constitute an agreement voluntarily recognizing a trade union as an exclusive bargaining agent.
Not a party to a provincial agreement
(17) The proponent and, if the proponent is an agent, the person who owns or has an interest in the land for which the project is planned, are not, only by reason of being a party to the project agreement or operating under the project agreement, parties to a provincial agreement.
Definition
(18) In this section, "
proponent" means a person who owns or has an interest in the land for which the project is planned and includes an agent of such a person.
22. Section 166 of the Act is repealed and the following substituted:
Power of Board
166. The Board shall, upon the application of a trade union, council of trade unions, or an employer or employers' organization, determine any question that arises as to what sector of the construction industry work performed or to be performed by employees is in.
Transition
23. The Ontario Labour Relations Board shall not exercise any power under section 11 of the Labour Relations Act, 1995, as it read before being amended by section 5, even with respect to applications made before section 11 of the Labour Relations Act, 1995 was amended.
PART II
Employment Standards Act Amendments
24. Section 1 of the Employment Standards Act, as amended by the Statutes of Ontario, 1993, chapter 38, section 64, 1996, chapter 23, section 1, 1997, chapter 4, section 80 and 1997, chapter 31, section 149, is further amended by adding the following definitions:
"
Board" means the Ontario Labour Relations Board; ("Commission")
"
labour relations officer" means a labour relations officer appointed under the Labour Relations Act, 1995. ("agent des relations de travail")
25. Subsection 2 (4) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 1 and amended by 1994, chapter 27, section 57, is repealed and the following substituted:
Non-application of the Statutory Powers Procedure Act
(4) The Statutory Powers Procedure Act does not apply to the exercise of any power conferred on the Program Administrator under Part XIV.1.
Same
(5) The Statutory Powers Procedure Act does not apply with respect to a determination by the Board as to whether or not to extend the time for making an application for a review under section 68.
26. Section 58.2 of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 21, section 3, is amended by adding the following subsection:
Modifications to certain references
(2) For the purposes of this section, the following apply with respect to Part XIV.1 and the regulations relating to that Part, as that Part and the regulations read immediately before the Program is discontinued:
1. Provisions with references relating to adjudicators acting under section 67 (as that section read immediately before the Program is discontinued) or referees acting under section 68 (as that section read immediately before the Program is discontinued) shall also apply, with necessary modifications, as though those references related to the Board acting under section 68.
2. Provisions with references relating to referees acting under section 69 (as that section read immediately before the Program is discontinued) shall also apply, with necessary modifications, as though those references related to the Board acting under section 69.
27. (1) Subsection 58.20 (1) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is amended by striking out "or" at the end of clause (c), by striking out clause (d) and substituting the following:
(d) an adjudicator or referee described in subsection (1.1) has made, amended or affirmed an order and the order, as made, amended or affirmed, orders that the employer is liable for wages or that the directors are liable for wages and the amount set out in the order has not been paid; or
(e) the Board has issued, amended or affirmed an order under section 68 or 69, the order, as issued, amended or affirmed, requires the employer or the directors to pay wages and the amount set out in the order has not been paid.
(2) Section 58.20 of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is amended by adding the following subsection:
Adjudicators and referees
(1.1) The following apply with respect to clause (1) (d):
1. An adjudicator referred to in clause (1) (d) is an adjudicator acting under subsection 67 (3) as it read before section 38 of the Economic Development and Workplace Democracy Act, 1998 came into force, including an adjudicator acting under that subsection as it is continued under section 48 of the Economic Development and Workplace Democracy Act, 1998.
2. A referee referred to in clause (1) (d) is a referee acting under section 68 as it read before section 39 of the Economic Development and Workplace Democracy Act, 1998 came into force or section 69 as it read before section 40 of the Economic Development and Workplace Democracy Act, 1998 came into force, including a referee acting under either of those sections as they are continued under section 48 of the Economic Development and Workplace Democracy Act, 1998.
(3) Subsection 58.20 (8) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is repealed and the following substituted:
Interest
(8) A director is liable to pay interest, at the rate and calculated in the manner determined by the Director under section 61.1, on outstanding wages for which the director is liable.
28. (1) Subsections 58.22 (2), (3) and (4) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, are repealed.
(2) Subsection 58.22 (7) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is repealed and the following substituted:
Procedure
(7) Subsection (5) applies with necessary modifications to an order made under subsection (6).
29. (1) Clauses 58.23 (1) (c) and (d) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, are repealed and the following substituted:
(c) after an adjudicator or referee described in subsection (2) has made, amended or affirmed an order if the order, as made, amended or affirmed, orders that the employer is liable for wages or that the directors are liable for wages and the amount set out in the order has not been paid; or
(d) after the Board has issued, amended or affirmed an order under section 68 or 69 if the order, as issued, amended or affirmed, requires the employer or the directors to pay wages and the amount set out in the order has not been paid.
(2) Subsections 58.23 (2), (3), (4), (5), (6), (7) and (8) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, are repealed and the following substituted:
Adjudicators and referees
(2) The following apply with respect to clause (1) (c):
1. An adjudicator referred to in clause (1) (c) is an adjudicator acting under subsection 67 (3) as it read before section 38 of the Economic Development and Workplace Democracy Act, 1998 came into force including an adjudicator acting under that subsection as it is continued under section 48 of the Economic Development and Workplace Democracy Act, 1998.
2. A referee referred to in clause (1) (c) is a referee acting under section 68 as it read before section 39 of the Economic Development and Workplace Democracy Act, 1998 came into force or section 69 as it read before section 40 of the Economic Development and Workplace Democracy Act, 1998 came into force, including a referee acting under either of those sections as they are continued under section 48 of the Economic Development and Workplace Democracy Act, 1998.
30. Subsections 58.26 (2) and (3) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, are repealed and the following substituted:
Board consideration
(2) If the document that was mailed under subsection (1) is returned and the director is not served personally, the Director may direct the Board to consider the manner of service.
Powers of Board
(3) The Board may order that service be effected in such manner as it considers appropriate in the circumstances.
31. Section 58.27 of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 6, is amended by striking out "an order of an adjudicator or a referee" in the fourth and fifth lines and substituting "an order of the Board under this Act".
32. Section 60 of the Act is repealed.
33. Section 60.1 of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 7, is repealed.
34. The Act is amended by adding the following section:
Determination of rates of interest
61.1 (1) The Director may, with the approval of the Minister, determine the rate of interest and the manner of calculating interest for the purposes of sections 58.20, 68, 69 and 70.
Determinations not regulations
(2) Determinations by the Director under subsection (1) are not regulations within the meaning of the Regulations Act.
35. (1) Subsection 64.5 (5) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, is amended by striking out "Ontario Labour Relations Board" in the third line and substituting "Board".
(2) Subsection 64.5 (6) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, is amended by striking out "Ontario Labour Relations Board" in the second line and substituting "Board".
(3) Paragraph 1 of subsection 64.5 (6) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, is amended by inserting "58.23" after "58.22" in the last line.
(4) Paragraph 2 of subsection 64.5 (6) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, is amended by striking out "a referee" in the first line and substituting "the Board".
(5) Subsection 64.5 (11) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, is repealed and the following substituted:
No review
(11) An order or a refusal to issue an order authorized by subsection (6) is not subject to review under section 68.
36. Subsections 64.6 (1) to (11) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 18, are repealed and the following substituted:
Arbitration re: related employers
(1) This section applies if, during an arbitration concerning the enforcement of the Act under section 64.5 other than an arbitration conducted by the Board, an issue arises as to whether the employer to whom the collective agreement applies and another entity are one employer under subsection 12 (1).
Restriction
(2) The arbitrator or arbitration board shall not make a decision concerning the issue arising under subsection 12 (1).
Reference to Board
(3) The arbitrator or board shall refer the issue arising under subsection 12 (1) to the Board by giving the Board notice unless the arbitrator or board determines that there has been no contravention of or failure to comply with the Act.
Content of notice
(4) The notice referring the issue to the Board shall be in writing and shall,
(a) indicate that an issue has arisen as to whether the employer to whom the collective agreement applies and another entity are one employer under subsection 12 (1); and
(b) indicate the decisions made by the arbitrator or board on the other matters in dispute.
Decision by Board
(5) The Board shall decide the issue as to whether the employer and the other entity are one employer under subsection 12 (1) but the Board shall not vary any decision of the arbitrator or board concerning the other matters in dispute.
Orders
(6) The Board may make an order against the employer and, if it finds that the employer and another entity are one employer under subsection 12 (1), it may make an order against the entity.
Application of other provisions
(7) Subsections 64.5 (6) to (13) apply, with necessary modifications, with respect to issues referred to the Board under this section.
Same
(8) If it is determined that the employer and another entity are one employer, no order shall require the entity to pay an amount or to take or refrain from taking an action under the collective agreement that the entity could not be ordered to pay, take or refrain from taking under the Act in the absence of the collective agreement.
37. Subsection 66 (2) of the Act is repealed and the following substituted:
Wages to be held in trust
(2) Where wages have been received or collected for or on behalf of an employee by the Director in trust and the employee cannot be located, the wages shall be vested in Her Majesty but may, without interest, be paid out to the employee, the employee's estate or such other person as the Director considers is entitled to the wages.
38. (1) Subsections 67 (2.1), (2.2) and (2.3) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 22, are repealed.
(2) Subsections 67 (3), (4), (5), (6) and (7) of the Act, as enacted by the Statutes of Ontario, 1991, chapter 16, section 10, are repealed.
39. Section 68 of the Act, as amended by the Statutes of Ontario, 1991, chapter 16, section 11 and 1996, chapter 23, section 23, is repealed and the following substituted:
Reviews
68. (1) A person who considers himself, herself or itself aggrieved by an order made under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22, 58.23 or 65 or by the refusal of an employment standards officer to issue such an order may apply to the Board for a review of the order or refusal.
Restriction
(2) A person may not apply for a review of a refusal to issue an order against a director.
Application deadline
(3) An application for a review must be made,
(a) in the case of an application for a review of an order, within 45 days after the date of the order;
(b) in the case of an application for a review of a refusal to issue an order, within 45 days after the date of the letter advising of the refusal or the date on which the refusal was deemed to have occurred under subsection 67 (2).
Extension of time for applying
(4) Subject to subsection (5), the Board may extend the time for applying for a review if it considers it appropriate to do so.
Restriction on extension re: orders to pay
(5) In the case of an order that requires the payment of money to the Director in trust, the Board may not extend the time for applying for a review if the Director has paid the money to an employee or employees under subsection 72 (2).
Application in writing
(6) An application for a review must be in writing.
Orders requiring applicant to pay
(7) An application for a review of an order requiring the applicant to pay an amount is not properly made and the Board shall not proceed with the review unless, within the time for applying for the review, the applicant pays the amount to the Director in trust or provides the Director with an irrevocable letter of credit acceptable to the Director.
Hearing
(8) Subject to the rules under subsection (12), the Board shall hold a hearing for the purposes of the review.
Parties
(9) The following are parties to the review:
1. The applicant.
2. In the case of an application by an employer relating to an order, the employee in respect of whom the order was issued.
3. In the case of an application by an employee, the employee's employer.
4. The employment standards officer who issued or refused to issue the order.
5. In the case of a review of an order issued under section 58.22 or 58.23, each director, other than the applicant, on whom the order is served.
6. Such other persons as the Board may specify.
Practice and procedure
(10) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to present their evidence and to make their submissions.
Rules of practice
(11) The chair of the Board may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
Expedited decisions
(12) The chair of the Board may make rules to expedite decisions about the Board's jurisdiction and such rules,
(a) may provide that the Board is not required to hold a hearing; and
(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions.
Effective date of rules
(13) Rules made under subsection (12) come into force on such dates as the Lieutenant Governor in Council may by order determine.
Conflict with Statutory Powers Procedure Act
(14) Rules made under this section apply despite anything in the Statutory Powers Procedure Act.
Rules not regulations
(15) Rules made under this section are not regulations within the meaning of the Regulations Act.
Persons to represent groups
(16) If a group of parties have the same or substantially the same interest, the Board may designate one or more of the parties in the group to represent the group in the review.
Quorum
(17) The chair or a vice-chair of the Board constitutes a quorum for the purposes of this section and is sufficient for the exercise of the jurisdiction and powers of the Board under this section.
Posting of notices
(18) The Board may require persons or trade unions, whether or not they are parties to the review, to post and to keep posted upon their premises in a conspicuous place or places where they are most likely to come to the attention of persons having an interest in the review, any notices that the Board considers necessary to bring to the attention of such persons.
Powers of Board
(19) The Board may, with necessary modifications, exercise the powers conferred on an employment standards officer under this Act and may substitute its findings or opinions for those of the officer who issued the order or refused to issue the order.
Same
(20) Without restricting the generality of subsection (19), the Board may,
(a) if the review is a review of an order, amend, rescind or affirm the order or issue a new order; and
(b) if the review is a review of a refusal to issue an order, issue an order or affirm the refusal.
Labour relations officers
(21) If during a review the Board considers it appropriate to do so, it may direct a labour relations officer to make such examination of records and other inquiries as it considers necessary in the circumstances but it shall not direct an employment standards officer to do so.
Same
(22) Sections 63 and 64 apply with respect to a labour relations officer who has been given a direction under subsection (21).
Interim orders
(23) If, during a review of an order requiring the payment of money or a review of a refusal to issue such an order, the Board finds that a certain amount of wages or compensation is owing or that there is no dispute that a certain amount of wages or compensation is owing, the Board shall, even though the review is not completed, affirm the order or issue an order to the extent of that amount.
Interest
(24) If the Board issues, amends or affirms an order requiring the payment of money, the Board may order the person against whom the order was issued to pay interest at the rate and calculated in the manner determined by the Director under section 61.1.
Decision final and binding
(25) A decision of the Board under this section is final and binding upon the parties to the decision and such other parties as the Board may specify.
Assignment of referees and adjudicators to new matters
(26) The Board may assign the conduct of a review to a person who was appointed as a referee prior to the coming into force of section 32 of the Economic Development and Workplace Democracy Act, 1998 or as an adjudicator prior to the coming into force of section 33 of the Economic Development and Workplace Democracy Act, 1998 if his or her term of appointment has not expired when the assignment is made.
Section applies as if person assigned were Board
(27) This section, other than subsections (10) to (12), applies with respect to a person to whom the conduct of a review is assigned under subsection (26) as if the person were the Board.
Person to follow Board's practice, etc.
(28) A person to whom the conduct of a review is assigned under subsection (26) shall,
(a) follow the practices and procedures determined by the Board;
(b) give full opportunity to the parties to present their evidence and to make their submissions; and
(c) follow the rules made by the chair of the Board.
40. Section 69 of the Act, as amended by the Statutes of Ontario, 1991, chapter 16, section 12, is repealed and the following substituted:
Inquiries
69. (1) If an employment standards officer reports to the Director that an employer may have failed to pay wages owing to an employee under this Act or to comply with this Act and the regulations, or is of the opinion that an act, agreement, arrangement or scheme is intended to have or has the effect directly or indirectly of defeating the true intent and purpose of this Act and the regulations, the Director may refer the report to the Board, which shall conduct an inquiry.
Hearing
(2) The Board shall hold a hearing for the purposes of the inquiry.
Parties
(3) The following persons are parties to the inquiry:
1. The employment standards officer who made the report.
2. The person who is the subject of the employment standards officer's report.
3. If the subject of the report is an employer, the directors of the employer.
4. Such other persons as the Board may specify.
Rights and defences of directors
(4) The directors of an employer that is the subject of a report have all the rights and defences of the employer for the purposes of an inquiry under this section.
Powers of Board
(5) The Board may, with necessary modifications, exercise the powers conferred on an employment standards officer under this Act and in addition thereto or substitution therefor, if the Board determines that an act, agreement, arrangement or scheme is intended to have or has the effect directly or indirectly of defeating the true intent and purpose of this Act and the regulations, it shall state its findings of fact and issue to and cause to be served upon such person as it may direct an order requiring the person to cease and desist from the act, agreement, arrangement or scheme and may order what action, if any, the person shall take or refrain from doing in order to comply with this Act and the regulations.
Same
(6) In addition to the powers under subsection (5), the Board may order a director to pay wages described in subsection 58.20 (3) and subsections 58.20 (7) and (8) apply, with necessary modifications.
Application of other provisions
(7) Subsections 68 (10) and (11), (14) to (18), (21) to (24) and (26) to (28) apply, with necessary modifications, with respect to the inquiry.
Decision final and binding
(8) The order of the Board under this section is final and not subject to review under section 68.
Settlements
69.1 (1) The Board may authorize a labour relations officer to attempt to effect a settlement of the matters raised by an application for review under section 68 or a reference to the Board of an employment standards officer's report under section 69.
Binding effect of settlement
(2) Despite section 3, if the labour relations officer effects a settlement between persons, the settlement is binding on those persons.
Clarification, when settlement may be effected
(3) A settlement may be effected even if,
(a) the employment standards officer who issued the order or refused to issue the order or who made the report is not advised of the settlement; or
(b) the review under section 68 or the inquiry under section 69 has started.
When settlement gives relief from order
(4) If, in relation to an application for review of an order, the labour relations officer effects a settlement between a person against whom the order was made and a person who would have benefited from the order, the order is of no effect with respect to the person who would have benefited from it if the person against whom the order was made complies with the settlement.
Termination of review or inquiry
(5) If a settlement disposes of all the issues in a review under section 68 or an inquiry under section 69, the review or inquiry is terminated.
Distribution of administrative costs
(6) If a settlement relates to an application for review of an order requiring the payment of money, the Director may, in accordance with the terms of the settlement,
(a) distribute any amount held in trust; and
(b) refund all or part of the administrative costs paid by the employer under clause 65 (1.2) (b).
Breach of settlement, fraud, coercion
(7) Subsection (8) applies if, on the application of a party to a settlement, the Board finds that,
(a) a person who is bound by the settlement fails to comply with it; or
(b) a person who entered into the settlement establishes that the person did so as a result of fraud or coercion.
Same
(8) In the circumstances described in subsection (7),
(a) subsections (2) and (4) cease to apply; and
(b) the Board shall order that any review or inquiry that was terminated under subsection (5) or that proceeded but did not deal with the issues disposed of in the settlement be re-commenced, with respect to the issues disposed of in the settlement, at the stage the review or inquiry was at when the settlement was effected.
Testimony in civil proceedings, etc.
69.2 (1) Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
Non-disclosure
(2) No information or material furnished to or received by a labour relations officer under this Act shall be disclosed except to the Board or as authorized by the Board.
41. (1) Subsection 70 (1) of the Act is repealed and the following substituted:
Interest on trust funds
(1) Upon an application for review under section 68, any money paid to the Director shall be paid into an interest bearing account to abide the decision of the Board and shall be paid out in accordance with the decision of the Board together with interest at the rate and calculated in the manner determined by the Director under section 61.1.
(2) Subsection 70 (2) of the Act is repealed.
(3) Subsection 70 (3) of the Act is repealed and the following substituted:
Interest on trust money
(3) Where under this Act the Director is required to hold money in trust, the Director shall pay interest to the person entitled to receive such money at the rate and calculated in the manner determined by the Director under section 61.1.
(4) Section 70 of the Act is amended by adding the following subsections:
Interest on administrative costs
(4) The Director shall pay interest on any administrative costs refunded under subsection 69.1 (6) at the rate and calculated in the manner determined by the Director under section 61.1.
Application of surplus interest
(5) If the interest earned on money held by the Director in trust exceeds the interest paid to the person entitled to receive such money, the Director may use the difference, or any part of it, to pay the service charges charged for the management of the money by the financial institution with which the money was deposited.
42. (1) Subsection 72 (1) of the Act is amended by striking out "clause 65 (1) (b)" in the second line and substituting "subsection 65.1 (1)".
(2) Subsection 72 (2) of the Act, as amended by the Statutes of Ontario, 1991, chapter 5, section 17 and 1996, chapter 23, section 25, is repealed and the following substituted:
Same
(2) Where compensation or wages have been paid by an employer under an order issued under section 45, 48, 51 or 56.2 or subsection 65 (1.2), and no application for review has been made to the Board under section 68 within 45 days after the date of the order or such longer period as the Board has allowed, the Director shall pay to the employee or employees the compensation or wages obtained on his, her or their behalf.
(3) Subsection 72 (3) of the Act is repealed and the following substituted:
Payment after review
(3) Where an application for review under section 68 has been made, the Director shall pay to the employee or the employees the wages owing, if any, in accordance with the decision of the Board and shall pay to the employer any money to which the employer is entitled under the decision.
43. Paragraph 3 of subsection 73.0.2 (1) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 27, is repealed and the following substituted:
3. The powers of the Board under section 19 of the Statutory Powers Procedure Act.
44. The Act is amended by adding the following section to Part XV:
Powers under the Canada Labour Code
75.2 If a regulation under the Canada Labour Code incorporates by reference all or part of this Act or a regulation under this Act, the Board and any person having powers under this Act may exercise any powers conferred under the regulation under the Canada Labour Code.
45. Clause 80 (1) (a) of the Act is amended by striking out "a referee" in the last line and substituting "the Board".
46. Subsection 82.1 (2) of the Act, as enacted by the Statutes of Ontario, 1996, chapter 23, section 31, is amended by striking out "a referee is appointed under section 69" in the first and second lines and substituting "the Director refers a report under subsection 69 (1)".
47. Paragraph 19.1 of subsection 84 (1) of the Act, as re-enacted by the Statutes of Ontario, 1997, chapter 21, section 3, is repealed.
Transition
48. (1) The Employment Standards Act, as it read immediately before this section came into force, continues to apply with respect to,
(a) an application for review made under section 67 of the Employment Standards Act before the day that section 38 of this Act came into force;
(b) an application for review made under section 68 of the Employment Standards Act before the day that section 39 of this Act came into force;
(c) a report made to the Director under subsection 69 (1) of the Employment Standards Act before the day that section 40 of this Act came into force.
Same
(2) For greater certainty, the appointments of adjudicators and referees under the Employment Standards Act, as it is continued under subsection (1), continue with respect to the applications and reports described in subsection (1).
PART III
Occupational Health and Safety Act Amendments
49. (1) The definition of "adjudicator" in subsection 1 (1) of the Occupational Health and Safety Act is repealed.
(2) Subsection 1 (1) of the Act, as amended by the Statutes of Ontario, 1993, chapter 27, Schedule, 1994, chapter 24, section 35, 1994, chapter 25, section 83 and 1997, chapter 16, section 2, is further amended by adding the following definitions:
"
Board" means the Ontario Labour Relations Board; ("Commission")
"
labour relations officer" means a labour relations officer appointed under the Labour Relations Act, 1995. ("agent des relations de travail")
50. (1) Subsection 9 (36) of the Act is amended by striking out "Agency" in the fourth line and substituting "Workplace Safety and Insurance Board".
(2) Subsection 9 (37) of the Act is amended by striking out "Agency" in the third line and substituting "Workplace Safety and Insurance Board".
51. Section 20 of the Act is repealed and the following substituted:
Testimony in civil proceedings, etc.
20. (1) Except with the consent of the Board, no member of the Board, nor its registrar, nor any of its other officers, nor any of its clerks or servants shall be required to give testimony in any civil proceeding or in any proceeding before the Board or in any proceeding before any other tribunal respecting information obtained in the discharge of their duties or while acting within the scope of their employment under this Act.
Non-disclosure
(2) No information or material furnished to or received by a labour relations officer under this Act shall be disclosed except to the Board or as authorized by the Board.
52. The Act is amended by adding the following section:
Powers under federal legislation
22.1 (1) If a regulation under the Canada Labour Code incorporates by reference all or part of this Act, the Smoking in the Workplace Act or a regulation under either of those Acts, the Board and any person having powers under this Act or the Smoking in the Workplace Act may exercise any powers conferred under the regulation under the Canada Labour Code.
Same
(2) If a regulation under section 9 of the Atomic Energy Control Act (Canada) requires an employer to whom this Act or the Smoking in the Workplace Act applies to comply with all or part of this Act, the Smoking in the Workplace Act or a regulation under either of those Acts, the Board and any person having powers under this Act or the Smoking in the Workplace Act may exercise any powers conferred under the regulation under the Atomic Energy Control Act (Canada).
53. (1) Subsection 46 (1) of the Act is amended by striking out "adjudicator" in the seventh line and substituting "Board".
(2) Subsection 46 (2) of the Act is repealed.
(3) Subsection 46 (3) of the Act is amended by striking out "adjudicator" in the second line and substituting "Board".
(4) Subsection 46 (4) of the Act is repealed and the following substituted:
Board procedure, etc.
(4) Subsections 61 (2) to (3.13) and subsection 61 (8) apply, with necessary modifications, with respect to applications under this section.
(5) Subsection 46 (5) of the Act is amended by striking out "adjudicator" in the first line and in the sixth line and substituting in each case "Board".
(6) Subsection 46 (6) of the Act is amended by striking out "adjudicator" in the second line and substituting "Board".
(7) Subsection 46 (7) of the Act is amended by striking out "adjudicator" in the first line and substituting "Board".
(8) Subsection 46 (8) of the Act is repealed and the following substituted:
Costs of inspector
(8) The employer shall reimburse the Province of Ontario for the wages, benefits and expenses of an inspector assigned to the employer as recommended by the Board.
54. Clause 47 (1) (a) of the Act is amended by striking out "adjudicator" in the first line and substituting "Board".
55. (1) Subsection 49 (1) of the Act is amended by striking out "adjudicator" in the fifth line and substituting "Board".
(2) Subsection 49 (2) of the Act is amended by striking out "fourteen days" in the second line and substituting "30 days".
(3) Subsection 49 (3) of the Act is amended by striking out "adjudicator" in the second line and substituting "Board".
(4) Section 49 of the Act is amended by adding the following subsection:
Board procedure, etc.
(3.1) Subsections 61 (2) to (3.13) and subsection 61 (8) apply, with necessary modifications, with respect to complaints under this section.
(5) Subsection 49 (4) of the Act is repealed and the following substituted:
Determination of complaint
(4) The Board shall make a decision respecting the complaint and may make such order as it considers appropriate in the circumstances including an order decertifying a certified member.
(6) Subsection 49 (5) of the Act is amended by striking out "adjudicator" in the first line and substituting "Board".
56. (1) Subsections 50 (2), (3) and (4) of the Act are repealed and the following substituted:
Arbitration
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
Inquiry by Board
(3) The Board may inquire into any complaint filed under subsection (2) and section 96 of the Labour Relations Act, 1995, except subsection (5), applies with all necessary modifications as if such section, except subsection (5), is enacted in and forms part of this Act.
Same
(4) On an inquiry by the Board into a complaint filed under subsection (2), sections 110, 111, 114 and 116 of the Labour Relations Act, 1995 apply with all necessary modifications.
(2) Subsection 50 (5) of the Act is amended by striking out "Ontario Labour Relations Board" in the first and second lines and substituting "Board".
(3) Subsection 50 (6) of the Act is amended by striking out "Ontario Labour Relations Board" in the first line and substituting "Board".
(4) Subsection 50 (7) of the Act, as re-enacted by the Statutes of Ontario, 1995, chapter 1, section 84, is amended by striking out "Ontario Labour Relations Board" in the first and second lines and substituting "Board".
57. (1) Subsection 61 (1) of the Act is repealed and the following substituted:
Appeals from order of an inspector
(1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order.
(2) Subsections 61 (2), (3) and (4) of the Act are repealed and the following substituted:
Parties
(2) The following are parties to the appeal:
1. The appellant.
2. In the case of an appeal by an employer, the employer's workers and each trade union representing any of the workers.
3. In the case of an appeal by a worker or trade union representing a worker, the worker's employer.
4. The inspector whose order is being appealed.
5. Such other persons as the Board may specify.
Inquiry by labour relations officer
(3) The Board may authorize a labour relations officer to inquire into an appeal.
Same
(3.1) The labour relations officer shall forthwith inquire into the appeal and endeavour to effect a settlement of the matters raised in the appeal.
Report to Board
(3.2) The labour relations officer shall report the results of his or her inquiry and endeavours to the Board.
Hearings
(3.3) Subject to the rules made under subsection (3.8), the Board shall hold a hearing to consider the appeal unless the Board makes an order under subsection (3.4).
Orders after consultation
(3.4) The Board may make any interim or final order it considers appropriate after consulting with the parties.
Same
(3.5) The Statutory Powers Procedure Act does not apply with respect to a consultation the Board makes under subsection (3.4).
Practice and procedure
(3.6) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to present their evidence and to make their submissions.
Rules of practice
(3.7) The chair may make rules governing the Board's practice and procedure and the exercise of its powers and prescribing such forms as the chair considers advisable.
Expedited appeals
(3.8) The chair of the Board may make rules to expedite appeals and such rules,
(a) may provide that the Board is not required to hold a hearing; and
(b) may limit the extent to which the Board is required to give full opportunity to the parties to present their evidence and to make their submissions.
Effective date of rules
(3.9) Rules made under subsection (3.8) come into force on such dates as the Lieutenant Governor in Council may by order determine.
Conflict with Statutory Powers Procedure Act
(3.10) Rules made under this section apply despite anything in the Statutory Powers Procedure Act.
Rules not regulations
(3.11) Rules made under this section are not regulations within the meaning of the Regulations Act.
Quorum
(3.12) The chair or a vice-chair of the Board constitutes a quorum for the purposes of this section and is sufficient for the exercise of the jurisdiction and powers of the Board under this section.
Entering premises
(3.13) For the purposes of an appeal under this section, the Board may enter any premises where work is being or has been done by workers or in which the employer carries on business, whether or not the premises are those of the employer, and inspect and view any work, material, machinery, appliance or article therein, and interrogate any person respecting any matter and post therein any notice that the Board considers necessary to bring to the attention of persons having an interest in the appeal.
Powers of the Board
(4) On an appeal under this section, the Board may substitute its findings for those of the inspector who made the order appealed from and may rescind or affirm the order or make a new order in substitution therefor, and for such purpose has all the powers of an inspector and the order of the Board shall stand in the place of and have the like effect under this Act and the regulations as the order of the inspector.
(3) Subsection 61 (6) of the Act is amended by striking out "adjudicator" in the first line and substituting "Board".
(4) Subsection 61 (7) of the Act is amended by striking out "adjudicator" in the second line and substituting "Board".
(5) Section 61 of the Act is amended by adding the following subsection:
Reconsideration
(8) The Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it under this section and may vary or revoke any such decision, order, direction, declaration or ruling.
58. Clause 65 (1) (c) of the Act is repealed and the following substituted:
(c) the Board or a labour relations officer.
59. Paragraph 48 of subsection 70 (2) of the Act is amended by striking out "adjudicator" in the second line and substituting "Board".
Transition
60. (1) The Occupational Health and Safety Act, as it read immediately before this section came into force, continues to apply with respect to a proceeding under section 46, 49 or 61 of that Act in which a hearing was commenced before the day this section came into force.
Same
(2) For greater certainty, the appointments of adjudicators under the Occupational Health and Safety Act, as it is continued under subsection (1), continue with respect to a proceeding described in subsection (1).
PART IV
Commencement and Short Title
Commencement
61. This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.
Short title
62. The short title of this Act is the Economic Development and Workplace Democracy Act, 1998.
Copyright © 1998
Office of the Legislative Assembly of Ontario
Toronto, Ontario, Canada.