CECBA Collective Bargaining and Essential Services

• Author: Timothy Hadwen - David Strang - Leonard Marvy - Don Eady
• Profession: Director, Legal Services Branch, Ontario Ministry of Labour - Associate Director, Management Board Secretariat - Solicitor, Ontario Labour Relations Board - Partner, Paliare Roland Rosenberg Rothstein LLP
• Pages: 437-523

 

CECBA Colleive Bargaining and

Essential Services

A. INTRODUCTION

e Crown Employees Collective Bargaining Act collective bargaining and essen-

tial-services scheme applies to the bargaining units for which trade unions are

certied under CECBA.CECBA incorporates the collec tive bargaining and inter-

est dispute resolution provisions of the Labour Relations Act in their entirety,

subject only to the explicit modications and additions contained in CECBA.

CECBA, Part II, sets out t he modications to the provisions of the LRA.CECBA

Part III —Col lective Bargaining, a nd Part IV— Essential Ser vices contain addi-

tions to the LRA scheme.

Under the Public Service Act, collective agreements and interest arbitration

awards made in accordance with CECBA “shall be implemented by the Lieuten-

ant Governor in Council by order in counci l.”

Picketing issues are not addressed in CECBA, but there are some aspec ts of

the courts’ treat ment of picketing injunct ions that are unique to a public service

strike or lockout, and t hese are also included in this chapter. ere is als o a dis-

cussion of return to work protocols, illegal strikes and “back to work” legisla-

tion.

S.O. , c.  as amended [CECBA].

S.O. , c. , Sch. A [LRA]

R.S.O. , c. P., s.  [PSA].



       

B.BARGAINING UNITS AND COLLECTIVE

AGREEMENTS IN THE ONTARIO PUBLIC SERVICE

ere are special bargaining unit congurations for the public service, as dis-

cussed below, but the general LRA duty to bargain in good faith applies to the

parties.

)Designated Bargaining Units and One Deemed Bargaining

Unit

Under CECBA, se ven of the bargaining units in t he Ontario Public Service (OPS)

are dened as “designated” bargaining units. Designated bargaining units can

negotiate certain issues on their own, but are to be considered one “deemed”

bargaining unit for purposes of a central collective agreement. Where the bar-

gaining agents for the designated bargaining units are not all from one union,

CECBA provides that those bargaining agents shall be “deemed to be a certied

council of t rade unions repre senting those e mployees” for purpose s of the centra l

agreement.

Six of those units a re represented by the Ontario Public Service Employees

Union (OPSEU). ese units consist of occupational categories (administrative,

correctional, institutional and health, oce administration, operational and

maintenance and technical). ere is a seventh unit, represented by the Asso-

ciation of Administrative, Management and Professional Crown Employees of

Ontario (AMAPCEO). e designation of all t hese units occurred under the pre-

 CECBA by Order-in-Council.

Under the current CECBA, section , a “ designated bargaining unit” is de-

ned as “a bargain ing unit ref erred to in su bsection (),” and t hat subsec tion in

turn refers to seven bargaining units. erefore it appears that the seventh unit

is one of the “designated bargai ning units.” However, inclusion as a “designated”

bargaining u nit means that the AMAPCEO u nit would join the six OPSEU units

in a council of trade unions to negotiate a central agreement. History and prac-

tice indicate thi s may not actually have been t he intention of the legislature. CE-

CBA, section (), states that the units referred to are those “established under

this section as it read immediately before” the  CECBA amendments came

into eect. Under the pre- CECBA, a “designated bargain ing unit” was speci-

LRA, s.  and , applies pursu ant to CECBA, s. (). See OPSEU v. e Crown in Right

of Ontario (Management B oard Secretariat), [] OLRB Rep. March/April  , where

Management Board S ecretariat was found to have bre ached the duty to bargai n in good

faith by requir ing the union to sign a conde ntiality clause l imiting the diss emination

of certain pl ans to only some members of the un ion’s bargaining team.

CECBA, s. –. PEGO’s bargaini ng unit was not designated.

Chapter : CECBA Collective Bargaining and Esse ntial Services

ed to be one of the six OPSEU bargaini ng units as determined by the Lieutenant

Governor in Council, and the sevent h bargaining unit was not included. ere-

fore, when AMAPCEO became the trade union representing that seventh unit,

it was arg uably not intended to be p art of the desig nated and deemed ba rgaining

units. It was certainly not treated as part of the “deemed” bargaining unit. OP-

SEU and Management Board Secreta riat (MBS) have negotiated a central collec-

tive agreement separately from the AMAPCEO and MBS negotiations on four

occasions since .

CECBA, section (), provides that the seven bargaining units are “contin-

ued,” but also states that the description of a unit “shall not be amended until

aer a collective agreement is made following December , .” Such collec-

tive agreements have, of course, been made. ere is no f urther provision in the

present Act for the Lieut enant Governor in Council to pass a n Order-in-Council

dealing wit h the description of a bargaining unit . e Ontario Labour Relat ions

Board (OLRB) does not normally have the power to amend bargain ing units. As

a result, it appears that the parties to the collective agreements, and only those

parties, can now agree to “amend” or change the designated bargaining units.

Indeed, the employer and OPSEU have agreed to combi ne the six OPSEU repre-

sented bargaining u nits into two (as further discus sed below).

e description of the deemed bargaining unit, made up of the combined

designated units, “shall not be altered.” is prec ludes not only any OLRB ord er,

but also any agreement by the parties to change the scope of that unit. Furt her-

more, the deemed unit is specically exempted from the certication and de-

certi cation provisions of the LRA that are othe rwise incorporate d into CECBA.

OPSEU was “continued” as the barga ining agent for the six designated bar-

gaining units, until a er the rst post- collective agreement. e Act further

states that OPSEU represents the units “until it ceases” under the relevant legis-

lation “to represent them.” is appears to mean that OPSEU’s representation

of the six designated bargaining units is now subject to the decertication and

displacement sections of t he LRA.

)Central Collective Agreement

CECBA is structured to ensure that certain common terms and conditions of

employment are consistent across the designated bargaining units. A central

agreement is to govern all of the designated bargaining units in respect of the

ePublic Servic e and Statute Law Amendment Act, S .O. , c. , s.  established t he

designated unit s with reference to s. () but the seventh un it was established in s. ( ).

See J. Sack, M. Mitchell & S. Pric e, Ontario Labour Rela tions Board Law and Practice ,

looseleaf (Mark ham, Ont.: Butterwor ths, ) at para. ..

CECBA, s. ().

Ibid., s. 