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Bill 92, Labour Relations Amendment Act (Replacement Workers), 2019

Gélinas, France

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Bill 92 Original (PDF)

EXPLANATORY

NOTE

The

purpose of the Bill is to restore the provisions that were incorporated into

the Labour Relations Act by the Labour Relations and Employment Statute Law Amendment Act, 1992

and subsequently repealed by the Labour Relations Act,

1995 .

The

purpose of the provisions being restored is to prevent an employer from

replacing striking or locked-out employees with replacement workers except in

specified emergency situations.

Bill 92 2019

Act to amend the Labour Relations Act, 1995 with respect to replacement workers

Her

Majesty, by and with the advice and consent of the Legislative Assembly of the

Province of Ontario, enacts as follows:

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, including an employee receiving benefits under

the Workplace Safety and Insurance Act, 1997 .

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.

reprisals

(8) The

employer shall not, because of a 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,

(

a) refuse

to employ or continue to employ the person;

(

b) threaten

to dismiss the person or otherwise threaten the person;

(

c) discriminate

against the 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 the person.

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 disability as

with Disabilities Act, 2005 .

3. Residential

care for children who are in need of protection as described in subsection 74

(2) of the Child, Youth and Family Services Act, 2017 .

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

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 74 (2) of the Child, Youth and Family Services Act, 2017 .

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

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; and

(

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, and any such agreement is

void.

Enforcement

(21) On

application of the employer or trade union, the Board may enforce an agreement

under subsection (16) and may amend it and make such other orders as it

considers appropriate in the circumstances.

Filing

in court

(22) A

party to the decision of the Board made under this

section may file it,

excluding the reasons, in the prescribed form in the Superior Court of Justice

and it shall be entered in the same way as an order of that court and is

enforceable as such.

Reinstatement

after lock-out, etc.

73.3

(1) If, at

the end of a lock-out or lawful strike, the employer and the trade union do not

agree about the terms for reinstating employees, the employer shall reinstate

them in accordance with this section.

Same

(2) Subject

to subsections (5) and (6), the employer shall reinstate each striking or

locked-out employee to the position that he or she held when the strike or

lock-out began.

Right

to displace others

(3) Striking

or locked-out employees are entitled to displace any other persons who were

performing the work of striking or locked-out employees during the strike or

lock-out.

Same

(4) Despite

subsection (3), a striking or locked-out employee is not entitled to displace

another employee in the bargaining unit who performed work under

section 73.2

during the strike or lock-out and 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 striking or locked-out employees,

including employees in the bargaining unit who performed work under

section

73.2 during the strike or lock-out, the employer shall reinstate them to

employment in the bargaining unit as work becomes available,

(

a) if

the collective agreement contains recall provisions that are based on

seniority, in accordance with seniority as defined in those provisions and as

determined when the strike or lock-out began, in relation to other employees in

the bargaining unit who were employed at the time the strike or lock-out began;

(

b) if

there are no such recall provisions, in accordance with each employee’s length

of service, as determined when the strike or lock-out began, in relation to

other employees in the bargaining unit who were employed at the time the strike

or lock-out began.

Starting

up operations

(6) Subsection

(5) does not apply if an employee is not able to perform work required to start

up the employer’s operations, but only for the period of time required to start

up the operations.

Continuation

of benefits

73.4

(1) This

section applies with respect to employment benefits, other than pension

benefits, normally provided directly or indirectly by the employer to the

employees.

Lawful

strike or lock-out

(2) This

section applies only when it is lawful for an employer to lock out employees or

for employees to strike.

Payments

(3) For

the purpose of continuing employment benefits, including coverage under

insurance plans, the trade union may tender payments sufficient to continue the

benefits to the employer or to any person who was, before a strike or lock-out

became lawful, obligated to receive such payments.

Same

(4) The

employer or other person described in subsection (3) shall accept payments

tendered by the trade union under that subsection and, upon receiving payment,

shall take such steps as may be necessary to continue in effect the employment

benefits, including coverage under insurance plans.

Cancellation

of benefits

(5) No

person shall cancel or threaten to cancel an employee’s employment benefits,

including coverage under insurance plans, if the trade union tenders payments

under subsection (3) sufficient to continue the employee’s entitlement to the

benefits or coverage.

Denial

of benefits

(6) No

person shall deny or threaten to deny an employment benefit, including coverage

under an insurance plan, to an employee if the employee was entitled to make a

claim for that type of benefit or coverage before a strike or lock-out became

lawful.

Effect

of contract

(7) Subsections

(4), (5) and (6) apply despite any provision to the contrary in any contract.

Commencement

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

Short

title

The

short title of this Act is the Labour Relations

Amendment Act (Replacement Workers), 2019 .

Date Bill stage Event Outcome Committee

March 28, 2019

First Reading

Vote

Carried

Debates and Progress

First Reading

March 28, 2019

Committee

Second Reading

Committee

Third Reading

Royal Assent

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