Complaints Against Employers
| Author | Christopher Rootham |
| Pages | 319-354 |
319
Complaints Against Employers
A. INTRODUCTION
This chapter is about complaints against the employer brought pur-
suant to section 190 of the Federal Public Sector Labour Relations
Act (FPSLRA). Section 190 requires the Board to examine and inquire
into any complaint made to it that the employer has failed to bargain
in good faith, failed to observe certain terms and conditions during a
statutory freeze, committed an unfair labour practice, or failed to imple-
ment a collective agreement or an arbitral award. As the requirements
of the duty to bargain in good faith have already been addressed in
detail,1 this chapter will focus on the other three requirements a breach
of which may result in a complaint under section 190 of the FPSLRA.
B. STATUTORY FREEZE
A statutory freeze refers to provisions of the FPSLRA (like other labour
relations statutes) that continue the terms and conditions of employ-
ment applicable to employees in the bargaining unit that is subject to
the statutory freeze. There are four freeze periods under the FPSLRA:
1) During certification. The statutory freeze is in place from the date
the employer is notified of an application for certification until the
application is withdrawn, or thirty days from the date on which the
1 See Chapter 6.
320 | LABOUR AND EMPLOYMENT LAW IN THE FEDERAL PUBLIC SERVICE
Board certifies an employee organization as the bargaining agent for
the unit.2
2) During bargaining. The statutory freeze is in place after notice to
bargain is given (by either party) until a collective agreement is
entered into, or an arbitral award is rendered, or a legal strike can
be declared or authorized.3
3) When the bargaining agent is in a legal strike position, for essential
services employees only. The statutory freeze for essential services
employees in place during a strike lasts until a collective agreement
is entered into.4
4) After a conversion (i.e., the creation of a new separate agency). If a
bargaining agent had served notice to bargain prior to the conver-
sion, then the second statutory freeze remains in eect for at least
150 days.5
The fourth freeze may not be a complete freeze. Section 88 of the
FPSLRA continues the statutory freeze for 150 days or, if an application
to change the bargaining units or bargaining agents is made, until the
date the Board completes that application. Section 87 of the FPSLRA
states that a notice to bargain that was given prior to the conversion
does not bind the new separate agency and that “a new notice may be
given only in the circumstances described in paragraph 89(b).” Para-
graph 89(b) only applies “if the Board makes by determination under
paragraph (a)” that new bargaining units are necessary. Therefore, if
neither the employer nor the bargaining agent makes an application
for new bargaining units, section 87 of the FPSLRA could be read as
preventing the bargaining agent from filing a new notice to bargain,
thus also preventing it from triggering a new freeze period. The better
view is that section 105(2) — giving the bargaining agent the right to file
a notice to bargain when no collective agreement is in eect — applies
from 150 days after the conversion (if no successor rights application
has been filed), therefore permitting the bargaining agent to serve a
new notice to bargain and restart the statutory freeze period. However,
section 87 could actually be a way to force bargaining agents to file
successor rights applications to ensure that they have the right to serve
2 FPSLRA, SC 2003, c 22, s 2, s 56.
3 Ibid, s 107.
4 Ibid, s 132.
5 Ibid, s 88.
Complaints Against Employers | 321
a new notice to bargain at the end of such applications. The Board
has not yet been faced with such a problem because the new employer
has always brought a successor rights application after a conversion in
order to consolidate bargaining units.
The statutory freeze in the FPSLRA is similar to the various statu-
tory freezes that exist in private sector labour relations legislation.
The wording of the first statutory freeze is dierent from the last
three because there is no collective agreement in force. The first statu-
tory freeze continues the “terms and conditions of employment that are
applicable to the employees in the proposed bargaining unit.”6 The last
three statutory freezes apply to “each term and condition of employ-
ment applicable to the employees in the bargaining unit to which the
notice relates that may be included in a collective agreement and that is
in force on the day the notice is given.”7
The two main statutory freezes — the freeze during certification and
the freeze during bargaining — serve somewhat dierent purposes. The
statutory freeze during certification was added in the 2005 legislative
overhaul, whereas the freeze during bargaining has been in place since
the inception of collective bargaining in the public service in 1967.
The purpose behind the second statutory freeze during bargaining
is to provide a stable platform for collective bargaining. As the Board
has explained, the purpose is to
maintain the status quo of the employer relationship so that the union
is given an opportunity to enter negotiations and bargain for a collect-
ive agreement from a fixed point of departure and in an atmosphere
of industrial relations security that is undisturbed by alterations in
conditions of employment.8
This statutory freeze is therefore “designed to promote orderly and fair
collective bargaining [because] [t]here must be some firm and stable
reference from which bargaining can proceed.”9
6 Ibid, s 56.
7 Ibid, ss 107 and 132 [emphasis added].
8 Federal Government Dockyard Chargehands Association v Treasury Board
(Department of National Defence), 2016 PSLREB 26 at para 47 [Dockyard
Chargehands], citing Canadian Union of Public Employees v Scarborough Cen-
tenary Hospital Association, [1978] OLRB Rep July 679.
9 The Queen in Right of Canada as Represented by the Treasury Board v Can-
adian Air Trac Control Association, [1982] 2 FC 80 (CA) at para 24 [CATCA].
See also PSAC v Canada (Treasury Board), [1987] FCJ No 240 (CA) at 8, and
To continue reading
Request your trial