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 Colleive Bargaining and
Essential Services
A. INTRODUCTION
e Crown Employees Collective Bargaining Act collective bargaining and essen-
tial-serv ices scheme applies to the barga ining units for which t rade unions are
certied under CECBA.CECBA incorporates the collec tive bargaining and inter-
est dispute resolution provisions of the Labour Re lations Act in their entire ty,
subject only to the explic it modications and addit ions contained in CECBA.
CECBA, Part II, sets out t he modications 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 a re 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, i llegal str ikes 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 barga ining unit cong urations for the public serv ice, as dis-
cussed below, but the general LR A duty to bargain in good fa ith 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 dened as “designated ” bargaining u nits. Designated bargaining u nits can
negotiate certain i ssues on their own, but are to be considered one “deemed ”
bargaining u nit for purposes of a central col lective agreement. Where t he bar-
gaining agents for the desig nated bargaining u nits are not all from one un ion,
CECBA provides that those bargaining agents shall be “deemed to be a certied
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 Publ ic Service Employees
Union (OPSEU). ese units consist of occupational categories (adminis trative,
correctional, in stitutional and hea lth, oce admin istration, operational a nd
maintenance and techn ical). ere is a seventh unit, represented by the Ass o-
ciation of Administ rative, Management and Professiona l 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 barga ining units. erefore it appear s 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 u nions to negotiate a central ag reement. 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 t hose “established under
this sect ion as it read immediately before” the CECBA amendments came
into eect. 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 conde 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 beca me the trade union representi ng that seventh unit,
it was arg uably not intended to be p art of the desig nated and deemed ba rgaining
units. It was certa inly not treated as par t of the “deemed” barga ining unit. OP-
SEU and Management Board Secreta riat (MBS) have negotiated a central collec-
tive agreement separately from t he AMAPCEO and MBS negot iations on four
occasions since .
CECBA, section (), provides that the seven bargaining u nits are “contin-
ued,” but also states that the desc ription of a unit “shall not be amended u ntil
aer a collective ag reement 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 t hat the parties to t he collective agreements , and only those
parties, ca n now agree to “amend” or change t he designated bargaini ng 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 barga ining unit, made up of the combi ned
designated units, “shall not be altered.” is prec ludes not only any OLRB ord er,
but also any agreement by the pa rties to change the sc ope of that unit. Furt her-
more, the deemed unit is specic ally exempted from the cer tication and de-
certi cation provisions of the LR A 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 me an that OPSEU’s representation
of the six designated barga ining units is now subject to t he decertication a nd
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 bargain ing units. A central
agreement is to govern all of the desig nated bargaining u nits in respect of the
e Public 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.
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