Bill 129 2013

An Act to amend the Labour Relations Act, 1995 with respect to employee rights

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 after the heading "Establishment of Bargaining Rights by Certification":

Lists of employees

   6.1  (1)  If a campaign to establish bargaining rights is under way and it appears to the Board that 20 per cent or more of the employees in a bargaining unit that could be appropriate for collective bargaining are members of a trade union, the Board shall direct, on application by the trade union, that the employer or a person acting on behalf of the employer provide to the trade union within two days,

  (a)  an accurate list of the employees in the bargaining unit that could be appropriate for collective bargaining; and

  (b)  an accurate list of all other employees of the employer in the location or locations where the campaign is under way.

Content of lists

   (2)  The lists shall be provided in electronic and printed formats and shall contain the following information about each employee:

    1.  His or her name.

    2.  His or her department.

    3.  His or her job title and classification, if applicable.

    4.  The usual number of hours per week he or she works.

    5.  Any other information specified by the Board in its direction.

Application

   (3)  An application by a trade union under subsection (1) shall include the name of the trade union, the description of the bargaining unit, the location or locations where a campaign to establish bargaining rights is under way and the membership evidence on which the trade union relies.

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

Location and method of voting

   8.0.1  (1)  If the Board directs that a representation vote be taken, it may, on application by the trade union applying for certification, direct that the vote,

  (a)  take place at a neutral site such as a school, place of worship or government office that is not on the employer's premises but that is close to the employees' place of work; or

  (b)  be conducted using electronic methods, by telephone, or by a combination of both.

Secrecy of ballot

   (2)  If the Board makes a direction under clause (1) (b), it shall establish procedures to ensure the secrecy of the ballot.

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

Successor rights, contract services sector

   69.1  (1)  This section applies with respect to the following services if they are provided directly or indirectly by or to a building owner, manager or occupant:

    1.  Security, cleaning or housekeeping services in respect of the premises.

    2.  Food services, homemaking services within the meaning of the Home Care and Community Services Act, 1994 or personal support services within the meaning of the Home Care and Community Services Act, 1994 provided to a building occupant.

Exclusions

   (2)  This section does not apply with respect to the following services:

    1.  Construction.

    2.  Maintenance other than maintenance activities related to cleaning the premises.

Deemed sale of business

   (3)  The sale of a business is deemed to have occurred and section 69 applies if,

  (a)  employees perform services at premises that are their principal place of work or, in the case of homemaking services or personal support services, at premises where the employees regularly provide the services;

  (b)  the employees' employer ceases, in whole or in part, to provide the services at those premises; and

   (c)  substantially similar services are subsequently provided under the direction of another employer, whether at the same premises or different premises.

Interpretation

   (4)  For the purposes of section 69, the employer referred to in clause (3) (b) is considered to be the predecessor employer and the employer referred to in clause (3) (c) is considered to be the successor employer.

   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.  Section 98 of the Act is repealed and the following substituted:

Board power re interim orders for reinstatement

   98.  (1)  On application in a pending proceeding, the Board shall make interim orders requiring an employer to reinstate an employee in employment on such terms as it considers appropriate, or respecting the terms and conditions of employment of an employee whose employment has not been terminated but whose terms and conditions of employment have been altered or who has been subject to reprisal, penalty or discipline by the employer, if the Board determines that the following conditions are met:

    1.  The circumstances giving rise to the pending proceeding occurred at a time when a campaign to establish bargaining rights was under way.

    2.  There is a serious issue to be decided in the pending proceeding.

Same

   (2)  On application in a pending proceeding, the Board may make interim orders concerning procedural and substantive matters on such terms as it considers appropriate.

Same

   (3)  If the Board makes an order requiring an employer to reinstate an employee, the employer shall reinstate the employee to his or her previous employment and reinstate all previous terms and conditions of employment until the disposition of the pending proceeding on the merits.

Exception

   (4)  The Board shall not exercise its powers under subsection (1) if it appears to the Board that,

  (a)  the alteration of terms and conditions, or the dismissal, reprisal, penalty or discipline by the employer could not have been related to the exercise of rights under this Act by the employee; or

  (b)  irreparable harm will be caused to the employer if required to reinstate the employee, reinstate the previous terms and conditions of employment, or otherwise remedy the reprisal, penalty or discipline on an interim basis.

Procedure

   (5)  The Board shall dispose of an application under subsection (1) or (2) on the basis of written submissions and without holding a hearing unless the Board determines that an oral hearing is required in the interests of justice.

Same

   (6)  With respect to the Board, the power to make interim orders under this section applies instead of the power under subsection 16.1 (1) of the Statutory Powers Procedure Act.

Timing of decision

   (7)  The Board shall issue an order under subsection (1) or (2) within two days (excluding Saturdays, Sundays and holidays) after the day on which the application is filed with the Board or, if the Board determines that an oral hearing is required, within seven days after the end of the hearing.

Commencement

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

Short title

   9.  The short title of this Act is the Labour Relations Amendment Act (Employee Rights), 2013.

 

EXPLANATORY NOTE

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

    1.   The Act is amended to permit a trade union to ask the Ontario Labour Relations Board to direct an employer to provide the trade union with a list of employees in a bargaining unit that could be appropriate for collective bargaining.  

    2.   Currently, the Act sets out procedures for representation votes when a trade union applies for certification as a bargaining agent. The Act is amended to provide that the Board may direct that representation votes be held at a neutral site, electronically, or by telephone.

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

    4.   Currently, the Act includes provisions governing successor rights when a business is sold. The Act is amended to extend the rules to the contract services sector.

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

    6.   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.

    7.   Section 98 of the Act currently allows the Board to make interim orders reinstating employees in certain circumstances when proceedings are pending. The Bill amends the interim order provisions.