Labour Relations Amendment Act (Replacement Workers), 2011 Gélinas, France — Bill 45 (39th Parliament, 2nd Session)

Bill 45, 39-2

Ontario — Bills

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Bill 45, Labour Relations Amendment Act (Replacement Workers), 2011

Gélinas, France

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[39] Bill 45 Original (PDF)

Bill 45 2010

An Act to amend

the Labour Relations Act, 1995

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 on 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 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 disability as defined in

for Ontarians with Disabilities Act, 2005 .

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

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

Document details

Collection	Ontario — Bills
Citation	Bill 45, 39-2
Type	bill
Volume / chapter	p39 s2 bill 45 html
Language	en
Format	html
Source	PROVINCIAL
Identifier	f1f11f57db06198a57a27de0e4ae61ebb525628d

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