Labour Relations Amendment Act, 2001 Martel, Shelley — Bill 31 (37th Parliament, 3rd Session)

Bill 31, 37-3

Ontario — Bills

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Bill 31, Labour Relations Amendment Act, 2001

Martel, Shelley

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[37] Bill 31 Original (PDF)

Bill 31 2001

An Act to amend the

Labour Relations Act, 1995

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 sections:

Definitions

73.1

(1) In this section,

"employer" means the employer whose employees are locked out or are on

strike and includes an employers' organization or person acting on behalf of

either of them; ("employeur")

"person" includes,

(

a) a person who exercises managerial functions or is employed in a

confidential capacity in matters relating to labour relations, and

(

b) an independent contractor; ("personne")

"place of operations in respect of which the strike or lock-out is taking

place" includes any place where employees in the bargaining unit who are on

strike or who are locked out would ordinarily perform their work. ("lieu

d'exploitation à l'égard duquel la grève ou le lock-out a

lieu")

Application

(2) This

section applies during any lock-out of employees by an

employer or during a lawful strike that is authorized in the following

way:

1. A strike vote was taken after the notice of desire to bargain was given

or bargaining had begun, whichever occurred first.

2. The strike vote was conducted in accordance with this Act.

3. At least 60 per cent of those voting authorized the strike.

Interpretation

(3) For the purposes of this

section and

section 73.2, a

bargaining unit is considered to be,

(

a) locked out if any employees in the bargaining unit are locked out;

and

(

b) on strike if any employees in the bargaining unit are on strike and

the union has given the employer notice in writing that the bargaining unit

is on strike.

Use of bargaining unit employees

(4) The employer shall not use the services of an employee in

the bargaining unit that is on strike or is locked out.

Use of newly hired employees, etc.

(5) The employer shall not use a person described in paragraph

1 at any place of operations operated by the employer to perform the work

described in paragraph 2 or 3:

1. A person, whether the person is paid or not, who is hired or engaged by

the employer after the earlier of the date on which the notice of desire to

bargain is given and the date on which bargaining begins.

2. The work of an employee in the bargaining unit that is on strike or

locked out.

3. The work ordinarily done by a person who is performing the work of an

employee described in paragraph 2.

Use of others at the strike, etc., location

(6) The employer shall not use any of the following persons to

perform the work described in paragraph 2 or 3 of subsection (5) at a place

of operations in respect of which the strike or lock-out is taking place:

1. An employee or other person, whether paid or not, who ordinarily works

at another of the employer's places of operations, other than a person who

exercises managerial functions.

2. A person who exercises managerial functions, whether paid or not, who

ordinarily works at a place of operations other than a place of operations in

respect of which the strike or lock-out is taking place.

3. An employee or other person, whether paid or not, who is transferred to

a place of operations in respect of which the strike or lock-out is taking

place, if he or she was transferred after the earlier of the date on which

the notice of desire to bargain is given and the date on which bargaining

begins.

4. A person, whether paid or not, other than an employee of the employer

or a person described in subsection 1 (3).

5. A person, whether paid or not, who is employed, engaged or supplied to

the employer by another person or employer.

Prohibition re replacement work

(7) The employer shall not require an employee who works at a

place of operations in respect of which the strike or lock-out is taking

place to perform any work of an employee in the bargaining unit that is on

strike or is locked out without the agreement of the employee.

No reprisals

(8) No employer shall,

(

a) refuse to employ or continue to employ a person;

(

b) threaten to dismiss a person or otherwise threaten a person;

(

c) discriminate against a person in regard to employment or a term or

condition of employment; or

(

d) intimidate or coerce or impose a pecuniary or other penalty on a

person,

because of the person's refusal to perform any or all of the work of an

employee in the bargaining unit that is on strike or is locked out.

Burden of proof

(9) On an application or complaint relating to this section,

the burden of proof that an employer did not act contrary to this

section

lies upon the employer.

Definition

73.2

(1) In this section,

"specified replacement worker" means a person who is described in

subsection 73.1 (5) or (6) as one who must not be used to perform the work

described in paragraph 2 or 3 of subsection 73.1 (5).

Permitted use of specified replacement workers

(2) Despite

section 73.1, specified replacement workers may be

used in the circumstances described in this

section to perform the work of

employees in the bargaining unit that is on strike or is locked out but only

to the extent necessary to enable the employer to provide the following

services:

1. Secure custody, open custody or the temporary detention of persons

under a law of Canada or of the Province of Ontario or under a court order or

warrant.

2. Residential care for persons with behavioural or emotional problems or

with a physical, mental or developmental handicap.

3. Residential care for children who are in need of protection as

described in subsection 37 (2) of the Child and Family Services

Act .

4. Services provided to persons described in paragraph 2 or 3 to assist

them to live outside a residential care facility.

5. Emergency shelter or crisis intervention services to persons described

in paragraph 2 or 3.

6. Emergency shelter or crisis intervention services to victims of

violence.

7. Emergency services relating to the investigation of allegations that a

child may be in need of protection as described in subsection 37 (2) of the

Child and Family Services Act .

8. Emergency dispatch communication services, ambulance services or a

first aid clinic or station.

Same

(3) Despite

section 73.1, specified replacement workers may

also be used in the circumstances described in this

section to perform the

work of employees in the bargaining unit that is on strike or locked out but

only to the extent necessary to enable the employer to prevent,

(

a) danger to life, health or safety;

(

b) the destruction or serious deterioration of machinery, equipment or

premises; or

(

c) serious environmental damage.

Notice to trade union

(4) An employer shall notify the trade union if the employer

wishes to use the services of specified replacement workers to perform the

work described in subsection (2) or (3) and shall give particulars to the

type of work, level of service and number of specified replacement workers

the employer wishes to use.

Time for giving notice

(5) The employer may notify the trade union at any time during

bargaining but, in any event, shall do so promptly after a conciliation

officer is appointed.

Same, emergency

(6) In an emergency or in circumstances which could not

reasonably have been foreseen, the employer shall notify the trade union as

soon as possible after determining that he, she or it wishes to use the

services of specified replacement workers.

Consent

(7) After receiving the employer's notice, the trade union may

consent to the use of bargaining unit employees instead of specified

replacement workers to perform some or all of the proposed work and shall

promptly notify the employer as to whether it gives its consent.

Use of bargaining unit employees

(8) The employer shall use bargaining unit employees to perform

the proposed work to the extent that the trade union has given its consent

and if the employees are willing and able to do so.

Working conditions

(9) Unless the parties agree otherwise, the terms and

conditions of employment and any rights, privileges or duties of the

employer, the trade union or the employees in effect before it became lawful

for the trade union to strike or the employer to lock out continue to apply

with respect to bargaining unit employees who perform work under subsection

(8) while they perform the work.

Priority re replacement workers

(10) No employer, employers' organization or person acting on

behalf of either shall use a specified replacement worker to perform the work

described in subsection (2) or (3) unless,

(

a) the employer has notified the trade union that he, she or it wishes to

do so;

(

b) the employer has given the trade union reasonable opportunity to

consent to the use of bargaining unit employees instead of the specified

replacement worker to perform the proposed work; and

(

c) the trade union has not given its consent to the use of bargaining

unit employees.

Exception re emergency

(11) In an emergency, the employer may use a specified

replacement worker to perform the work described in subsection (2) or (3) for

the period of time required to give notice to the trade union and determine

whether the trade union gives its consent to the use of bargaining unit

employees.

Application for directions

(12) On application by the employer or trade union, the Board

may,

(

a) determine, during a strike or lock-out, whether the circumstances

described in subsection (2) or (3) exist and determine the manner and extent

to which the employer may use specified replacement workers to perform the

work described in those subsections;

(

b) determine whether the circumstances described in subsection (2) or

(3) would exist if a strike or lock-out were to occur and determine the manner

and extent to which the employer may use specified replacement workers to

perform the work described in those subsections;

(

c) give such other directions as the Board considers appropriate.

Reconsideration

(13) On a further application by either party, the Board may

modify any determination or direction in view of a change in

circumstances.

Same

(14) The Board may defer considering an application under

subsection (12) or (13) until such time as it considers appropriate.

Burden of proof

(15) In an application or a complaint relating to this section,

the burden of proof that the circumstances described in subsection (2) or

(3) exist lies upon the party alleging that they do.

Agreement re specified replacement workers

(16) The employer and the trade union may enter into an

agreement governing the use, in the event of a strike or lock-out, of

striking or locked-out employees and of specified replacement workers to

perform the work described in subsection (2) or (3).

Formal requirements

(17) An agreement under subsection (16) must be in writing and

signed by the parties or their representatives.

Same

(18) An agreement under subsection (16) may provide that any of

subsections (4) to (11) do not apply.

Term of agreement

(19) An agreement under subsection (16) expires not later than

the earlier of,

(

a) the end of the first strike described in subsection 73.1 (2) or

lock-out that ends after the parties have entered into the agreement; or

(

b) the day on which the parties next make or renew a collective

agreement.

Prohibited circumstances

(20) The parties shall not, as a condition of ending a strike

or lock-out, enter into an agreement governing the use of specified

replacement workers or of bargaining unit employees in any future strike or

lock-out. Any such agreement is void.

Enforcement

(21) On application of the employer o

Document details

Collection	Ontario — Bills
Citation	Bill 31, 37-3
Type	bill
Volume / chapter	p37 s3 bill 31 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	50f8ae48aca07be561de520add90cc100a93f980

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