The Collective Bargaining Process in Ontario – This is the law!

 

 

 

Introduction

 

In legal terms, collective bargaining begins with the notice to bargain and continues all the way through the process until a new collective agreement has been ratified by the union and the employer.

 

This handout explains the legal framework for bargaining in Ontario.   It is meant to give bargaining committees the information you need about collective bargaining legislation so that you can plan the best bargaining strategy for your local.

 

Bargaining committee members do not need to be legal experts!  You can get accurate and up-to-date information from your national servicing representative, and through them, CUPE’s legal staff.

 

 

Acronyms:

 

MOL     Ministry of Labour

OLRB    Ontario Labour Relations Board

LRA      Labour Relations Act

HLDAA  Hospital Labour Disputes Arbitration Act

 

 

 

 

 

 

The bargaining process for locals with the right to strike (Municipal, school boards, post-secondary, most social services, utilities, airlines)

 

 

 

The BARGAINING PROCESS FOR LOCALS WITHOUT THE RIGHT TO STRIKE (HOSPITALS, NURSING HOMES, HOMES FOR THE AGED, RETIREMENT HOMES, SOME SOCIAL SERVICES)

 

Notice to bargain Ø        can be served by either party during the last 90 days of the term of a collective agreement, or at any time permitted by the collective agreement Ø        needs to be served in writing Ø        if neither party gives notice to bargain, the collective agreement remains in effect for another year

Notice to bargain Ø        can be served by either party during the last 90 days of the term of a collective agreement, or at any time permitted by the collective agreement Ø        needs to be served in writing Ø        if neither party gives notice to bargain, the collective agreement remains in effect for another year

                                                                                                           

 

 

Exchange proposals Ø        the legislation requires the parties to meet within 15 days from notice being given, unless they agree to meet later – (In practice, negotiations rarely start within 15 days of notice to bargain.)

Exchange proposals Ø        the legislation requires the parties to meet within 15 days from notice being given, unless they agree to meet later – (In practice, negotiations rarely start within 15 days of notice to bargain.) Ø        the parties can table proposals up to the conclusion of the conciliation process

                                                                                                                               

 

Bargaining starts

Bargaining starts

 

 

Legal requirements If no agreement is reached: Ø        either party can ask the Ministry of Labour to appoint a conciliation officer -- at any time during bargaining Ø        Conciliation officers are Ministry staff, who work to help the parties come to an agreement Ø        if conciliation is not successful, the officer advises the Minister of Labour, who issues a        “No Board” report and sends it to each         party

Legal requirements If no agreement is reached: Ø        either party can ask the Ministry of Labour to appoint a conciliation officer - at any time during bargaining Ø        conciliation officers are Ministry staff, who work to help the parties come to an agreement Ø        if conciliation is not successful, the officer advises the Minister of Labour, who issues a “No Board” report and sends it to each party

 

 

 

Legal strike position Ø       17 days after the date on the Minister’s “No Board” letter, the union is in a legal strike position and the employer can legally lock the employees out ·          at this point, the current collective agreement is no longer in effect – the employer can alter working conditions as they wish Ø       before going on strike, a strike vote, by secret ballot, must take place ·          the vote must be taken during the last 30 days of the term of the collective agreement, or any time after its expiry date ·          employees must be given “ample opportunity to cast their ballots”, the time and place for voting must be “reasonably convenient” ·          a majority of employees voting must vote in favour of taking strike action ·          for newly organized locals who choose to go on strike, the strike vote must be taken on or after the date on which the conciliation officer is appointed.

Binding arbitration Ø        The legislation requires that:  Within 10 days after the date on the Minister's “No Board” letter, both parties must name their nominee to the arbitration board Ø        if either party does not name a nominee, the Minister of Labour can appoint one Ø        within 10 days of the nominees being appointed, they mutually agree on a third person to chair the board of arbitration Ø        if the two nominees cannot agree on a chair, either party can apply to the Minister of Labour, who will appoint a chair Ø        if the Minister appoints a chair, mediation-arbitration is used, unless otherwise directed Ø        the board meets within 30 days of the appointment of the last member of the board Ø        the award must be issued within 90 days of the appointment of the last member of the board   (in practice, these timelines may not be followed strictly)

 

 

 

Strike/Lockout Ø        bargaining can continue during a strike or lock-out Ø        employees have the right to picket, but cannot completely prevent access to the premise Ø        the employer my seek an injunction to limit picketing Ø        employees cannot be fired because they are on strike, except for misconduct which justifies discharge

               

                                                                               

 

Ratification Vote Ø        the agreement must be ratified by secret ballot, by a majority of voting employees in the bargaining unit Ø        employees must be given “ample opportunity to cast their ballots”, the time and place for voting must be “reasonably convenient”

 

 

 

	New Agreement		New Agreement
Questions and answers for locals with the right  to strike

 

Q: What’s the name of the legislation that governs collective bargaining?

A: The Labour Relations Act.

 

Q: Does the employer have the right to force the union to hold a vote on its final offer?

A: Yes, the employer can request a Board – supervised vote on its final offer at any time before or after the start of a legal strike or lock-out.  They can only do this once in a round of bargaining.

 

Q: What is failure to negotiate in good faith?

A: Both the union and the employer must “bargain in good faith and make every reasonable effort to make a collective agreement”.  Some examples:  The employer and the union must agree to meet and to discuss – at least – each other’s proposals.  The employer must recognize the union’s right to bargain on behalf of its members.   Necessary information, like pay rates, must be made available.  The employer must not misrepresent any plans it has that will have a substantial effect on employees.  Neither party should change its position (back track) during bargaining without good justification (e.g. significant change in circumstances).

 

Q: Why is it called a “no board report”?

A: The legislation allows for a conciliation board to be appointed if the conciliation officer is not able to help the parties come to an agreement.  However, this provision is never used.  To issue a “no board report” means that the Minister does not consider it advisable to appoint a conciliation board.

 

Q: Is it possible to request mediation?

A: Either party can apply to the Ministry of Labour for mediation.  The appointment of a mediator has no effect on the time periods for a legal strike or lock-out. 

 

Q: What about settling a collective agreement through arbitration?

A: The union and the employer may agree to refer all issues in dispute to an arbitrator or board of arbitration who will hear arguments from both sides and then decide on the issues in dispute. When a union and an employer agree to go to arbitration, they give up their right to strike and/or lock out employees. 

Q: Is it ever legal to strike during the term of the collective agreement?

A:  No.  A strike is only legal once the conciliation process has been attempted and the required time has elapsed after the Minister of Labour has issued a “no board” report.

 

Q: Is the employer allowed to designate “essential employees”?

A:  No, all employees covered by the LRA have the right to strike.

 

Q: How does a strike end?

A: In almost all cases, a strike comes to an end when the employer and the union sign a collective agreement and the striking employees return to work.  Usually, the union and the employer negotiate a return-to-work protocol to guide the return to work and protect employees from retaliatory actions.

 

Q: Are there any restrictions on replacement workers (scabs) during a strike?

A: No, although the law does not allow professional strike breakers.

 

Q: Do employees have a right to get their jobs back after a legal strike?

A: Normally, employees will return to work after a legal strike in accordance with a return to work protocol.

 

Q: Is the process the same for first contracts?

A:  There are some differences for first contracts.  If negotiations are not successful, and the conciliation process has not worked, either party may apply to the OLRB for first contract arbitration.  The Board has conditions for agreeing to first contract arbitration.

Ø       Bargaining has been unsuccessful;

Ø       The refusal of the employer to recognize the bargaining authority of the trade union, the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification;

Ø       The failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or 

Ø       Any other reason the Board considers relevant.

Ø       If the Board decides to arbitrate a settlement, strikes and lock-outs are not allowed.