Bill 79 2012

An Act to amend the Labour Relations Act, 1995 to provide an equal right for trade unions to have access to certification processes and to enact other measures with respect to employee rights

Note: This Act amends the Labour Relations Act, 1995.  For the legislative history of the Act, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

   1.  The Labour Relations Act, 1995 is amended by adding the following section:

Election, certification without a vote

   10.1  (1)  A trade union applying for certification as bargaining agent of the employees of an employer may elect to have its application dealt with under this section rather than under section 8.

Procedure

   (2)  Subsections 128.1 (2) to (12) and (14) to (17) apply to an application dealt with under this section.

Board to certify trade union

   (3)  If the Board is satisfied that more than 55 per cent of the employees in the bargaining unit are members of the trade union on the date the application is filed, it shall certify the trade union as the bargaining agent of the employees in the bargaining unit.

Non-application of certain provisions

   (4)  Sections 8, 8.1 and 10 do not apply in respect of an application dealt with under this section.

Determining bargaining unit

   (5)  Section 9 applies with necessary modifications to determinations made under this section.

Transition

   (6)  This section applies in respect of applications made on or after the day on which the Labour Relations Amendment Act (Equal Rights for Employees in Ontario), 2012 comes into force.

   2.  Subsection 11 (3) of the Act is amended by striking out "section 8.1" and substituting "section 8.1 or 10.1".

   3.  Subsection 12 (3) of the Act is amended by striking out "sections 7, 8 and" and substituting "sections 7, 8, 10.1 and".

   4.  The Act is amended by adding the following section:

Just cause requirement

   73.1  (1)  No employer, employers' organization or person acting on behalf of an employer or employers' organization shall discharge or discipline an employee without just cause in either of the following circumstances:

    1.  No first collective agreement has been entered into, but a trade union has been certified as the employee's bargaining agent or the employer has voluntarily recognized the trade union as the employee's bargaining agent.

    2.  The trade union could engage in a lawful strike or the employer could engage in a lawful lock-out, whether in connection with a first collective agreement or any subsequent collective agreement.        

Substitution of penalty

   (2)  If the Board determines that an employer has discharged or disciplined an employee for cause in either of the circumstances set out in subsection (1), the Board may substitute such lesser penalty as it considers just and reasonable in all the circumstances.

Exception

   (3)  If the employee is discharged during a probationary period described in the employment contract between the employer and the employee, the Board may apply a lesser standard for discharging the employee.

   5.  Section 80 of the Act is repealed and the following substituted:

Reinstatement of employee after strike or lock-out

   80.  (1)  If the following conditions are met, the employer shall reinstate employees in accordance with this section:

    1.  The trade union representing the employees calls an end to a lawful strike.

    2.  The trade union requests in writing that the employees who were engaged in the lawful strike be reinstated.

    3.  The employer and the trade union do not otherwise agree about the terms for reinstating the employees.

Application

   (2)  This section applies whether or not a collective agreement has been entered into at the end of the lawful strike, and whether or not the employer has also called or authorized a lawful lock-out.

Reinstatement to same or similar position

   (3)  Subject to subsections (5) and (6), the employer shall reinstate each employee to the position that the employee held when the strike or lock-out began or, if no such position is available, to a similar position.

Right to displace others

   (4)  Employees are entitled to displace any other persons who were performing the work of striking employees during the strike or lock-out, but an employee is not entitled to displace another employee in the bargaining unit whose length of service, as determined under subsection (5), is greater than his or hers.

Insufficient work

   (5)  If there is not sufficient work for all of the employees who were engaged in the lawful strike, the employer shall reinstate the employees to employment in the bargaining unit as work becomes available,

  (a)  if there is a collective agreement in effect containing recall provisions that are based on seniority, in accordance with seniority as defined in those provisions and as determined when the strike began or the lock-out began, whichever is earlier, in relation to other employees in the bargaining unit who were employed at the time the strike or lock-out began; or

  (b)  if there is no collective agreement or if there are no such recall provisions, in accordance with each employee's length of service, as determined when the strike began or the lock-out began, whichever is earlier, in relation to other employees in the bargaining unit who were employed at the time the strike or lock-out began.

Exception, starting up operations

   (6)  An employer is not required to reinstate employees in accordance with subsection (5) in respect of work required to start up the employer's operations.

No discrimination

   (7)  In establishing terms of employment in respect of a reinstated employee, the employer shall not discriminate against the employee for exercising or having exercised any rights under this Act.

   6.  The Act is amended by adding the following section after the heading "Information":

Minister to prepare poster

   89.1  (1)  The Minister shall prepare and publish a poster, written in plain language in English and French, providing such information about this Act and the regulations made under it as the Minister considers appropriate, and the poster shall include information about,

  (a)  the rights of employees,

           (i)  to join a trade union of their choice and to participate in its lawful activities, including discussing and engaging in trade union organizing, and discussing wages, benefits, hours of work and other terms and conditions of employment with co-workers and with a trade union,

          (ii)  to apply for certification under this Act, to sign applications for membership in a trade union, to vote freely for trade union representatives and to bargain collectively with employers to negotiate an agreement concerning wages, benefits, hours of work and other terms and conditions of employment, and

         (iii)  to engage in leafleting, picketing and strike activity as permitted by this Act;

  (b)  the right of a trade union to apply for first agreement arbitration in accordance with this Act;

   (c)  the obligations of employers, employers' organizations and persons acting on behalf of employers and employers' organizations,

           (i)  to recognize a certified trade union as the exclusive bargaining agent of the employees in the bargaining unit, to bargain in good faith and to make every reasonable effort to enter into a collective agreement,

          (ii)  not to interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union, including the obligation not to prevent employees from talking about or soliciting for a trade union during non-working time such as before and after work hours or during break times, and the obligation not to interfere with the distribution of trade union literature during non-working time,

         (iii)  not to refuse to employ or refuse to continue to employ a person, and not to discriminate against a person in employment, because the person is or was a member of a trade union or is or was exercising any other rights under this Act,

         (iv)  not to impose or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act,

          (v)  not to seek, by threat of dismissal or other kind of threat, or by imposing a pecuniary or other penalty, to compel an employee to become, refrain from becoming, continue to be or cease to be a member, officer or representative of a trade union or to cease to exercise any other rights under this Act, including the obligation,

                 (A)  not to question employees about trade union support or activities,

                 (B)  not to fire, demote or transfer employees, reduce their hours of work or change their shifts, or otherwise take adverse action against employees, because they have joined a trade union or engaged in trade union activity,

                 (C)  not to threaten to close a workplace or otherwise retaliate if employees choose a trade union to represent them,

                 (D)  not to promise or grant promotions, pay raises or other benefits to discourage trade union support or activities,

                 (E)  not to prohibit the wearing of buttons or clothing bearing trade union messages in the workplace except where the wearing of such items interferes with the employer's operations, and

                 (F)  not to observe or record lawful trade union activities or gatherings,

         (vi)  while a trade union is entitled to represent employees in a bargaining unit, not to bargain with or enter into a collective agreement with a different person or group in a way that purports, is designed or is intended to be binding on those employees,

        (vii)  not to threaten dismissal or another sanction, or to discriminate against a person in employment, or to intimidate, coerce or impose a penalty on the person, or refuse to employ or to continue to employ a person, because of a belief that the person,

                 (A)  may testify in a proceeding under this Act,

                 (B)  has made or is about to make a disclosure that may be required in a proceeding under this Act,

                 (C)  has made or is about to make an application or file a complaint under this Act, or

                 (D)  has participated in or is about to participate in a proceeding under this Act;

  (d)  the procedures governing unfair labour practices under this Act, including the right to complain to the Board respecting violations of this Act and to claim relief such as reinstatement, compensation or an order that employers cease and desist from violations of this Act; and

  (e)  the methods and sources for obtaining information or assistance concerning the exercise of rights under this Act and the processes for filing a complaint under this Act.

If poster not up to date

   (2)  If the poster prepared under subsection (1) has become out of date, the Minister shall prepare and publish a new poster.

Material to be posted

   (3)  Every employer shall post and keep posted the following number of copies of the most recent poster published by the Minister:

    1.  If the employer has 25 employees or fewer, at least one copy.

    2.  If the employer has more than 25 employees, at least the number of copies determined by dividing the total number of the employer's employees by 25 and rounding to the next higher whole number.

Same

   (4)  The posters shall be posted in conspicuous places in every workplace of the employer so that the information contained in the poster is likely to come to the attention of all employees in the workplace.

Where majority language not English or French

   (5)  If the language of at least 25 per cent of the employees in a workplace of an employer is a language other than English or French, the Minister shall prepare a translation of the poster into that language at the request of the trade union, and the employer shall post and keep posted a copy of the translation next to the copy of the English and French poster.

   7.  Subsection 159 (3) of the Act is repealed and the following substituted:

Election under s. 10.1 or 128.1

   (3)  This section does not apply when an application for certification is being dealt with under section 10.1 or 128.1.

   8.  Subsection 160 (4) of the Act is repealed and the following substituted:

Election under s. 10.1 or 128.1

   (4)  This section does not apply when an application for certification is being dealt with under section 10.1 or 128.1.

Commencement

   9.  This Act comes into force on the day it receives Royal Assent.

Short title

   10.  The short title of this Act is the Labour Relations Amendment Act (Equal Rights for Employees in Ontario), 2012.

 

EXPLANATORY NOTE

The Bill amends the Labour Relations Act, 1995. Major features of the Bill include the following:

    1.   The Act currently provides that trade unions in the construction industry may elect to have applications for certification dealt with without a vote. The Act is amended to extend this option to all trade unions.

    2.   The Act is amended to provide that employers shall not discharge or discipline employees without just cause in certain circumstances.

    3.   Section 80 of the Act currently governs reinstatement of employees when a lawful strike occurs. The Bill amends the reinstatement provisions.

    4.   The Act is amended to require the Minister to prepare and publish a poster providing information about labour relations in Ontario. Employers are required to post the poster in conspicuous places in the workplace.