Complaints against employers

• Author: Christopher Rootham
• Pages: 233-252

 

COMPLAINTS AGAINST

EMPLOYERS

A. INTRODUCTION

is chapter is about complaints agai nst the employer brought pursuant to sec-

tion  of the Public Service Labour Rel ations Act. Section  requires t he Public

Service Labou r Relations Board to examine and inqu ire into any complaint made

to it that the employer has failed to bargain in good faith, failed to observe cer-

tain terms and conditions during a statutory freeze, committed an unfair labour

practice, or faile d to implement a collective agreement or arbit ral award. As the

requirements of the duty to bargain i n good faith have already been addressed in

detail, th is chapter will focus on the other t hree requirements, a breach of which

may result in a complaint under sec tion  of the PSLRA.

B. STATUTORY FREEZE

A statutory freeze refers to provisions of the PSLRA (lik e other labour relations

statutes) that continues the ter ms and conditions of employment applicable to

employees subject to the statutory f reeze. ere are four freeze periods under t he

PSLRA:

. During cert ication. e statutor y freeze is in place f rom the date the

employer is notied of a n application for certicat ion until the applica-

tion is withd rawn, or thirty d ays from the date on which the Boa rd cer-

ties an employee organi zation as the bargaining agent for the unit .

Public Serv ice Labour Relations Act , S.C. , c. , s.  [PSLRA].

 See Chapter .See Chapter .

PSLRA, above note , s. . s. .

233

234           

. During bargaining. e statutor y freeze is in place a er notice to bar-

gain is given (by either pa rty) until a collec tive agreement is entered

into, or an arbitral awa rd is rendered, or a legal strike ca n be declared or

authorize d.

. When the bargaining agent is in a lega l strike position, for essential ser-

vices employees only. e statutory free ze for essential services employ-

ees in place during a st rike lasts until a collective ag reement is entered

into.

. Aer a conversion, if a bargaini ng agent had served notice to bargai n

prior to the conversion, then the second statutor y freeze remains i n ef-

fect for at least  days.

e fourth freez e (involving successor rig hts situations) may not be a com-

plete freeze. Sec tion  of the PSLRA continues the statutor y freeze for  days,

or, if an application to change the barga ining units or bargaini ng agents is made,

until the date t he Board completes that appl ication. Section  of t he PSLRA

states that a notice to barga in that was given prior to t he conversion does not

bind the new separate agency, and that “a new notice may be given on ly in the cir-

cumstances de scribed in para graph (b).” Paragraph (b) only applies “if the

Board makes by determinat ion under paragraph (a)” that new bargaining unit s

are necessar y. erefore, if the employer does not make an applicat ion for new

successor rights (that is, new barga ining units), section  of the PSLRA cou ld be

read as preventing the bargai ning agent from ling a new notice to bargai n, thus

also preventing it from trig gering a new freeze per iod. e better view is t hat

section () — giving the bargaini ng agent the right to le a notice to bargain

when no collective agreement is i n eect — applies from  days aer the con-

version (if no successor rights applicat ion has been led), therefore permitt ing

the bargaini ng agent to serve a new notice to bargai n and re-start t he statutory

freeze period. However, section  could ac tually be a way to force barga ining

agents to le successor rights applications in order to ensure that they have the

right to serve a new notice to ba rgain at the end of such applications. e Board

has not yet been faced with such a problem bec ause, as stated in Chapter Five, the

new employer has always brought a successor rig hts application aer a conver-

sion in order to consolidate bargain ing units.

e statutory freeze i n the PSLRA is ver y simila r to the various statutor y

freezes that ex ist in private sector labour relations legi slation. e purpose of the

freeze was expl ained by the Federal Court of Appea l as follows:

Ibid., s. .

Ibid., s. .

Ibid., s. .