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The Collective Bargaining Process in Ontario

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The Collective Bargaining Process in Ontario Powered By Docstoc
					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)

                             1. Notice to bargain
                             o 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
                             o needs to be served in writing
                             o if neither party gives notice to bargain, the collective
                                agreement remains in effect for another year
                             2. Exchange proposals
                             o 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.)
                             3. Bargaining starts
                             4. Legal requirements: If no agreement is reached:
                             o either party can ask the Ministry of Labour to appoint a
                                conciliation officer -- at any time during bargaining
                             o Conciliation officers are Ministry staff, who work to help the
                                parties come to an agreement
                             o if conciliation is not successful, the officer advises the Minister
                                of Labour, who issues a “No Board” report and sends it to
                                each party
                             5. Legal strike position
                     o  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
                     o 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.
                     6. Strike/Lockout
                     o bargaining can continue during a strike or lock-out
                     o employees have the right to picket, but cannot completely
                        prevent access to the premise
                     o the employer my seek an injunction to limit picketing
                     o employees cannot be fired because they are on strike, except
                        for misconduct which justifies discharge
                     7. Ratification Vote
                     o the agreement must be ratified by secret ballot, by a majority
                        of voting employees in the bargaining unit
                     o employees must be given “ample opportunity to cast their
                        ballots”, the time and place for voting must be “reasonably
                        convenient”
                     8. New Agreement

The Bargaining process for locals without the right to strike (hospitals, nursing
homes, homes for the aged, retirement homes, some social services)

                     1. Notice to bargain
                     o 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
                     o needs to be served in writing
                     o if neither party gives notice to bargain, the collective
                        agreement remains in effect for another year
                     2. Exchange proposals
                     o 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.)
                               o    the parties can table proposals up to the conclusion of the
                                    conciliation process
                               3.   Bargaining starts
                               4.   Legal requirements: If no agreement is reached:
                               o    either party can ask the Ministry of Labour to appoint a
                                    conciliation officer -- at any time during bargaining
                               o    Conciliation officers are Ministry staff, who work to help the
                                    parties come to an agreement
                               o    if conciliation is not successful, the officer advises the Minister
                                    of Labour, who issues a “No Board” report and sends it to
                                    each party
                               5.   Binding arbitration
                               o    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
                               o    if either party does not name a nominee, the Minister of
                                    Labour can appoint one
                               o    within 10 days of the nominees being appointed, they mutually
                                    agree on a third person to chair the board of arbitration
                               o    if the two nominees cannot agree on a chair, either party can
                                    apply to the Minister of Labour, who will appoint a chair
                               o    if the Minister appoints a chair, mediation-arbitration is used,
                                    unless otherwise directed
                               o    the board meets within 30 days of the appointment of the last
                                    member of the board
                               o    the award must be issued within 90 days of the appointment of
                                    the last member of the board
                               o    (in practice, these timelines may not be followed strictly)
                               6.   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.


                                 Bargaining has been unsuccessful;
                                 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;
                                 The failure of the respondent to make reasonable or expeditious
                                  efforts to conclude a collective agreement; or
                                 Any other reason the Board considers relevant.
                                 If the Board decides to arbitrate a settlement, strikes and lock-outs
                                  are not allowed.

    Questions and answers for locals without the right to strike
    Q: What’s the name of the legislation that governs collective bargaining?
    A: The Hospital Labour Disputes Arbitration Act (HLDAA) (pronounced hilda).

    Q: Who’s covered by HLDAA?
    A: Any workplace defined as a hospital, including nursing homes, municipal homes for the aged, and charitable
    homes for the aged.

    Q: Do these employees have the right to strike?
    A: No. If the parties cannot reach a collective agreement through negotiations, the terms of the agreement are
    determined through binding arbitration.

    Q: Does this mean locals cannot take any workplace action during negotiations?
    A: No, locals covered by HLDAA can hold information pickets and other workplace activities to pressure the employer
    to settle the contract and to avoid the uncertainty, time and expense involved in proceeding to binding arbitration.

    Q: What does it cost the local to proceed to arbitration under HLDAA?
    A: Locals cover 50% of the cost of the arbitrator and his/her expenses. The employer covers the other 50%. The local
    can apply to CUPE National to have some of their costs reimbursed. 50% of their portion of the chair and 75% of their
    portion of the nominee can be covered by National.
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