Complaints Under Section 190 of the Federal Public Sector Labour Relations Act

Introduction

The purpose of this guide is to provide parties representing themselves with information on the process for presenting a complaint under section 190 of the Federal Public Sector Labour Relations Act (the FPSLRA) and for hearings before the Federal Public Sector Labour Relations and Employment Board (the FPSLREB). This guide is only an informal tool, which should be used in conjunction with the FPSLRA and the Public Service Labour Relations Board Regulations (the Regulations). The FPSLRA can be accessed on the Department of Justice’s Web site at http://laws.justice.gc.ca. Both the FPSLRA and the Regulations can be accessed on the FPSLREB’s Web site at www.fpslreb-crtespf.gc.ca, under Legislation and Forms.

General information

What is the PSLRB?

The FPSLREB is an independent quasi-judicial tribunal responsible for administering the complaint system under the FPSLRA. Its commitment to resolve labour relations issues in an impartial manner benefits Canadians through the smooth delivery of government programs and services. One of the goals of the FPSLREB is to ensure that complaints of unfair labour practices are examined fairly and impartially.

Who chairs the hearings?

Hearings relating to complaints are heard by the FPSLREB, sitting in a panel of one or more members.

Filing a complaint

What types of complaints can I file before the FPSLREB?

Complaints can be filed under section 190 of the FPSLRA under one of the following alleged infractions:

  • Failing to comply with a duty to observe terms and conditions of employment;
  • Failing to observe a duty to bargain in good faith;
  • Failing to observe a duty to implement provisions of the collective agreement;
  • Failing to observe a duty to implement provisions of the arbitral award; or
  • Committing an unfair labour practice.

For more details, see section 190 of the FPSLRA at http://laws.justice.gc.ca/en/P-33.3/section-190.html or see Appendix 1.

Note: As per section 185 of the FPSLRA,  an “unfair labour practice” (e.g.: discrimination on the basis of membership with a bargaining agent, exercise of a right under the FPSLRA, etc.) means anything that is prohibited by

  • Subsection 186(1) or (2);
  • Section 187 or 188; or
  • Subsection 189(1) of the FPSLRA.

Can I represent myself?

Complainants wishing to file a complaint before the FPSLREB under section 190 of the FPSLRA may represent themselves without help from a bargaining agent or lawyer.

How do I file a complaint before the FPSLREB?

Complainants wishing to file a complaint under section 190 of the FPSLRA must do so pursuant to section 2 of the Regulations, which describes the procedure for filing initiating documents with the FPSLREB.

A complaint must be filed in duplicate with the FPSLREB. To do so, the complainant shall use form 16 of the Regulations: COMPLAINT UNDER SECTION 190 OF THE PSLRA. It is available on the FPSLREB’s Web site at:

http://fpslreb-crtespf.gc.ca/forms/pslra/form16.pdf

The written complaint should include:
(1) The name, address, and phone and fax numbers of the complainant;
(2) The name and address of the respondent;
(3) A short summary of the measures taken by the employer that resulted in the complaint, specifying dates and the names of the persons in question;
(4) The steps taken by the complainant or on his/her behalf to rectify the situation;
(5) The corrective action or order requested under subsection 192(1) of the PSLRA; and
(6) Other matters relevant to the complaint.

Time for making a complaint

As per subsection 190 (2) of the Act, the complaint "…must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint."

Note: The 90 days referred to in the Act are calendar days.

The Act makes no provision for extension of this deadline.

What happens after a complaint has been filed with the FPSLREB?

Opening the file

When the FPSLREB receives a complaint, a letter is sent to each of the parties acknowledging receipt of the complaint and advising the respondent of its opportunity to reply. The acknowledgement letter also provides the parties with information required for continuing the process, such as the FPSLREB’s file number, and instructions on the next step. It is important that the FPSLREB’s file number be used on all subsequent documents and correspondence.

Based on the persons named in the complaint, the FPSLREB will create a list of parties, intervenors and other persons who may be affected by the proceeding (the “Board’s list”). The FPSLREB will send copies of the complaint to the persons whose names appear on this list. The FPSLREB will also send to everybody on that list a copy of the Board’s list.

  • Please note that any document submitted subsequently to the complaint shall be filed with the FPSLREB. The party filing a subsequent document (except for Applications for a summons) shall provide a copy to every person whose name appears on the Board’s list, unless he or she has notified the FPSLREB in writing that he or she does not wish to receive a copy of subsequent documents.

Mediation

Every complaint is automatically referred to mediation; however, mediation remains voluntary. If a party declines mediation in writing, or if the conflict cannot be resolved through this approach, the Chairperson may refer the dispute to a formal hearing.

A party has 15 calendar days to notify in writing the Executive Director of its intention not to participate in mediation. A party’s notice of intention is a subsequent document and must be copied to every person whose name appears on the Board’s list.

Even if the parties refuse mediation at the outset, they may at any point request that the matter be referred to mediation. If the parties jointly file with the Executive Director a request to have the conflict referred to mediation, the complaint will in most cases be immediately put in abeyance and a mediation date scheduled.

Preparing for the hearing

Introduction

As a rule, the process for a hearing before the FPSLREB is the same as that before a court, though somewhat less formal. The parties may file supporting documents as evidence and examine and cross-examine witnesses. Hearings give them an opportunity to present their arguments in order to establish their allegations.

Scheduling the hearing

The FPSLREB usually tentatively schedules hearing dates four months in advance. The parties will be contacted to confirm their availability.

Notice of hearing

When the Chairperson refers a complaint to a hearing, a notice of hearing is sent to each person whose name appears on the Board’s list, informing him or her of the date, time and place where the hearing will be held. A notice of hearing will normally be sent out one month prior to the hearing date.

Deferral and withdrawal

A hearing, for exceptional circumstances, may be postponed if either or both parties believe that they are unable to attend. In such a case, a postponement must be requested in writing with the FPSLREB, and the reasoning for the request must be provided. The requesting party must send a copy of the request to all persons whose names appear on the Board’s list. Only in exceptional circumstances (e.g. a serious injury on the morning of the hearing) can the request be made with the FPSLREB panel.

The opinion of the other party will be obtained before a decision is made whether to postpone the hearing, and all persons whose names appear on the Board’s list will be informed of that decision.

Sometimes, the parties settle the complaint among themselves before the hearing. It is then up to the complainant to inform in writing the FPSLREB that the dispute has been resolved and is being withdrawn, or is in the process of being resolved. If the hearing has started or is about to start (on that same day), the parties should inform the FPSLREB panel who is hearing the case about the withdrawal before informing the FPSLREB in writing.

English or French?

Hearings may take place in English or French. However, they are normally held in the language in which the complaint was filed. Simultaneous interpretation services, when needed, are provided by the FPSLREB, but the parties must notify in writing the FPSLREB of such a requirement at least three weeks ahead of time. The FPSLREB assumes all of the costs associated with this service.

At the written request of the complainant, and with sufficient notice, the language of the hearing can be other than the language of the complaint (i.e. the language in which it was filed).

Witnesses

A party that wants to call a witness to testify and thinks that the witness will attend only if legally required to do so can request (in writing and in detail) a summons. It is up to this party to explain why this witness is essential to the presentation of its case. If the FPSLREB issues a summons, the party that intends to summon the witness must inform the witness that he or she is being called to testify at a hearing by serving him or her with the document sufficiently in advance of the hearing. All costs related to the service of a summons are paid by the party requesting the summons.

Furthermore, witnesses who are summoned by a party are entitled to compensation if they attend the hearing (see section 41 of the Federal Public Sector Labour Relations and Employment Board Act). It is up to the party that summoned them to pay this compensation. The party must ensure that the amount is equal to that to which the witnesses would be entitled if summoned to attend before the Federal Court.

As well, the party that summons a witness must pay ahead of time, where applicable and in accordance with the Federal Courts Rules, any travel expenses that the witness may incur.

Special needs

The parties are responsible for notifying in writing the FPSLREB sufficiently in advance of any needs or services that they will require before or during the hearing (for instance, that the building where the hearing is to take place be accessible to people with mobility disabilities).

Technical and procedural issues

Recording

The hearings are not normally recorded, and no minutes are prepared. Hence, it is important that the parties take notes. The FPSLREB panel will however take notes of the evidence and submissions. The notes taken by the FPSLREB panel are not accessible by the parties or the general public.

Swearing an oath

A witness who is called to testify at a hearing must swear an oath or solemnly affirm to tell the truth for his/her testimony to be admitted as evidence. Individuals asked to testify may swear on the Bible or another sacred text or object, or promise to tell the truth.

Please advise the FPSLREB in writing at least two weeks in advance if a specific sacred text is required for the hearing. Witnesses may also bring their own sacred text or object.

Failure to attend

If a person fails to attend a hearing or any subsequent session of that hearing, the FPSLREB panel may continue the hearing and decide on the matter without further notice to that person.

Objections

If a party raises an objection at the hearing, the FPSLREB panel will ask the other party for its position on the objection. It will then give the objecting party an opportunity to respond to the other party’s position before rendering a decision on that matter. The decision on some objections may be reserved by the FPSLREB panel and dealt with in the final decision.

Applications

An application may be made to the FPSLREB panel at a hearing to have it render a decision on an issue concerning the procedure which does not touch on the substance of the case. An application may be presented in writing or, more commonly, orally at the hearing. When a party files such an application, it must provide its reasons for doing so. The other party then provides its position on the reasons, to which the party making the application then responds.

For instance, an application could be made to have the following day’s hearing start later than indicated on the notice of hearing.

If one of the parties contests the FPSLREB panel’s jurisdiction for hearing a complaint, after considering relevant evidence and submissions, the FPSLREB panel must be satisfied that it has jurisdiction before ruling on the complaint. The FPSLREB panel may also reserve decision on the question of jurisdiction and proceed with the hearing, based on the merits of the case (a common practice for jurisdiction-type questions).

The conduct of the hearing

Decorum

Proper behaviour is expected from the participants. As a sign of respect, when the FPSLREB panel enters or exits the room, it is customary, however not required, for participants to rise. As well, special places are assigned to the participants in the room depending on their role in the case (complainant, visitor, witness, etc.) (see Appendix 2).

Opening statement and preliminary matters

At the beginning of a hearing, the FPSLREB panel makes an opening statement. It takes this opportunity to explain the reason why the parties are there and the basic rules for the hearing. It then asks the parties whether they have any preliminary questions that they would like to bring to the panel’s attention. This is when the parties can raise an objection concerning the FPSLREB panel’s jurisdiction for hearing the complaint, request the exclusion of witnesses from the hearing or request modifications or clarifications on the conduct of the hearing.

Afterwards, each party may make an opening statement, during which it can provide a summary or overview of what it intends to prove and how it intends to do so and the remedy or relief sought. The order of presentation of the opening statements is the same as that of the presentation of evidence and the examination (see section on Presentation of evidence and examination of witnesses). It should be noted that the party that proceeds second may wait until it presents its case to make its opening statement, in other words, before its evidence is presented.

Presentation of evidence and examination of witnesses

Generally, the complainant will proceed first with the presentation of his or her evidence. However, in complaints involving a failure to comply with subsection 186(2), the employer is the one with the burden of proof and will proceed with presenting its evidence first (see subsection 191(3) of the FPSLRA).

The party that presents its evidence first is automatically the first one to examine its witnesses. During its examination-in-chief, this party shall aim to present all of the information that will help support its case. Then, the other party examines the first party’s witnesses: this is the cross-examination. It will then try to contradict the evidence presented or demonstrate that the merits of the case are unfounded. After the cross-examination, the party that was the first to examine its witnesses will have an opportunity to re-examine its witness to address any new point raised during the cross-examination. Then, the other party will have a chance to examine its own witnesses to present its evidence and, as before, this will be followed by a cross-examination and re-examination.

It should be noted that all persons, including the complainants who wish to testify, must swear an oath or make a solemn affirmation to tell the truth.

How do I present my evidence and examine my witnesses?

Essentially, the presentation of evidence involves examining witnesses and filing documents or items applicable to the dispute. Documents and other items presented as evidence are generally provided through a witness or with the other party’s agreement. A copy of such documents must be provided to each of the parties, to the witness, and to the FPSLREB panel. The documents must be filed in both official languages if they exist in both languages. To the extent possible, documents should be in their original form and not edited.

It is not necessary to present form 16: COMPLAINT UNDER SECTION 190 OF THE FPSLRA as evidence, as this document is already on file.

It is important that questions asked during the examination-in-chief of a witness be kept short and open to enable the witness to be free to recount the facts relative to the matter. This means that leading questions, where the witness is guided towards an answer, should not be used. However, there is nothing to prevent the parties from asking leading questions at the beginning of a witness’ examination-in-chief to establish the latter’s identity or during cross-examination to focus the witness’ answers.

How do I prepare my arguments?

When parties present their arguments, they can also present, in support of their case, the applicable case law (i.e., decisions from the courts), previous decisions of the FPSLREB or its predecessor tribunals (i.e., the Public Service Labour Relations Board and the Public Service Staffing Relations Board), or decisions of adjudicators. Research is very important in preparing the arguments. The parties may consult the FPSLREB’s Web site, where they can find its previous decisions or those of its predecessors as well as those of adjudicators, the different statutes under its jurisdiction and other useful links.

Arguments

During the presentation of arguments, the parties speak in the same order as for the presentation of evidence. By this time, the FPSLREB panel knows all of the elements or relevant facts of the dispute as they were presented and hears the parties’ arguments.

This is when the parties refer to previous decisions, statutes or case law to support their arguments.

Federal Court decisions are available online at:
http://decisions.fct-cf.gc.ca/fc-cf/en/nav.do

The FPSLREB’s (or its predecessors’) decisions are available at:
http://fpslreb-crtespf.gc.ca/decisions/intro_e.asp

If a party wishes to refer to a previous decision, statute or case law, it must ensure that a copy is provided to each party and to the FPSLREB panel.

End of Hearing

After the parties have presented their arguments, the hearing will come to a close.

If more time is needed to continue the hearing, the FPSLREB panel will specify the date, time, place and terms of its continuance.

What happens after the hearing?

Decision

The hearing gives the FPSLREB panel an opportunity to hear the parties’ arguments, submissions, and all the evidence required to understand the dispute. The FPSLREB panel must then render its decision in writing. Normally, the FPSLREB panel tries to render its decision within four months of the hearing.

The FPSLREB's Policy on Openness and Privacy explains why information filed with the FPSLREB is generally available to the public and why it could be reported in a decision posted on the FPSLREB website and distributed to publishers.

 

Appendix 1:

Complaints

190. (1) The Board must examine and inquire into any complaint made to it that

(a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

(f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

Time for making complaint

          (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board's opinion ought to have known, of the action or circumstances giving rise to the complaint.

Limitation on complaints against employee organizations

          (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188(b) or (c) unless

(a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

(b) the employee organization

(i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

(ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

(c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

Exception

          (4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

(a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

(b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

Provisions of the FPSLRA referred to in section 190

Continuation of terms and conditions

          56. After being notified of an application for certification made in accordance with this Part, the employer may not, except under a collective agreement or with the consent of the Board, alter the terms and conditions of employment that are applicable to the employees in the proposed bargaining unit and that may be included in a collective agreement until

(a) the application has been withdrawn by the employee organization or dismissed by the Board; or

(b) 30 days have elapsed after the day on which the Board certifies the employee organization as the bargaining agent for the unit.

Duty to bargain
in good faith

          106. After the notice to bargain collectively is given, the bargaining agent and the employer must, without delay, and in any case within 20 days after the notice is given unless the parties otherwise agree,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to enter into a collective agreement.

Duty to observe terms and conditions

          107. Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment 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, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or

(a) if the process for the resolution of a dispute is arbitration, an arbitral award is rendered; or

(b) if the process for the resolution of a dispute is conciliation, a strike could be declared or authorized without contravening subsection 194(1).

Two-tier bargaining

          110. (1) Subject to the other provisions of this Part, the employer, the bargaining agent for a bargaining unit and the deputy head for a particular department named in Schedule I to the Financial Administration Act or for another portion of the federal public administration named in Schedule IV to that Act may jointly elect to engage in collective bargaining respecting any terms and conditions of employment in respect of any employees in the bargaining unit who are employed in that department or other portion of the federal public administration.

More than one department or portion

          (2) Collective bargaining under subsection (1) may relate to more than one department or other portion of the federal public administration if each of the deputy heads concerned elects to engage in the collective bargaining.

Duty to bargain in good faith

          (3) The parties who elect to bargain collectively under subsection (1) must, without delay after the election,

(a) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith; and

(b) make every reasonable effort to reach agreement on the terms and conditions of employment in question

Duty to implement provisions of the collective agreement

          117. Subject to the appropriation by or under the authority of Parliament of money that may be required by the employer, the parties must implement the provisions of a collective agreement

(a) within the period specified in the collective agreement for that purpose; or

(b) if no such period is specified in the collective agreement, within 90 days after the date it is signed or any longer period that the parties may agree to or that the Board, on application by either party, may set.

Duty to observe terms and conditions

          132. Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.

Duty to implement provisions of the arbitral award

          157. Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.

Meaning of "unfair labour practice"

          185. In this Division, "unfair labour practice" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

Unfair labour practices -- employer

          186. (1) Neither the employer nor a person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall

(a) participate in or interfere with the formation or administration of an employee organization or the representation of employees by an employee organization; or

(b) discriminate against an employee organization.

Unfair labour practices -- employer

          (2) Neither the employer nor a person acting on behalf of the employer, nor a person who occupies a managerial or confidential position, whether or not that person is acting on behalf of the employer, shall

(a) refuse to employ or to continue to employ, or suspend, lay off or otherwise discriminate against any person with respect to employment, pay or any other term or condition of employment, or intimidate, threaten or otherwise discipline any person, because the person

(i) is or proposes to become, or seeks to induce any other person to become, a member, officer or representative of an employee organization, or participates in the promotion, formation or administration of an employee organization,

(ii) has testified or otherwise participated, or may testify or otherwise participate, in a proceeding under this Part or Part 2,

(iii) has made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iv) has exercised any right under this Part or Part 2;

(b) impose, or propose the imposition of, any condition on an appointment, or in an employee's terms and conditions of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Part or Part 2; or

(c) seek, by intimidation, threat of dismissal or any other kind of threat, by the imposition of a financial or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of an employee organization or to refrain from

(i) testifying or otherwise participating in a proceeding under this Part or Part 2,

(ii) making a disclosure that the person may be required to make in a proceeding under this Part or Part 2, or

(iii) making an application or filing a complaint under this Part or presenting a grievance under Part 2.

Exception

          (3) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) by reason only of

(a) permitting an employee or a representative of an employee organization that is a bargaining agent to confer with the employer or person, as the case may be, during hours of work or to attend to the business of the employee organization during hours of work without any deduction from wages or any deduction of time worked for the employer; or

(b) permitting an employee organization that is a bargaining agent to use the employer's premises for the purposes of the employee organization.

Exception

          (4) The employer or a person does not commit an unfair labour practice under paragraph (1)(b)

(a) if the employer or person is acting in accordance with this Part or a regulation, a collective agreement or an arbitral award; or

(b) by reason only of receiving representations from, or holding discussions with, representatives of an employee organization.

Exception

          (5) The employer or a person does not commit an unfair labour practice under paragraph (1)(a) or (b) by reason only that the employer or person expresses their point of view, so long as they do not use coercion, intimidation, threats, promises or undue influence.

Exception

          (6) The employer or a person does not commit an unfair labour practice under any of paragraphs (1)(a) or (b) or (2)(a) to (c) by reason only of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

Unfair representation by bargaining agent

          187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

Unfair labour practices -- employee organizations

          188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

(a) except with the consent of the employer, attempt, at an employee's place of employment during the employee's working hours, to persuade the employee to become, to refrain from becoming, to continue to be or to cease to be a member of an employee organization;

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization's standards of discipline to that employee in a discriminatory manner;

(d) expel or suspend an employee from membership in the employee organization, or take disciplinary action against, or impose any form of penalty on, an employee by reason of that employee having exercised any right under this Part or Part 2 or having refused to perform an act that is contrary to this Part; or

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

Unfair labour practices -- persons

          189. (1) Subject to subsection (2), no person shall seek by intimidation or coercion to compel an employee

(a) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be, a member of an employee organization; or

(b) to refrain from exercising any other right under this Part or Part 2.

Exception

          (2) A person does not commit an unfair labour practice referred to in subsection (1) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.

Declaration or authorization of strike prohibited

          194. (1) No employee organization shall declare or authorize a strike in respect of a bargaining unit, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike in respect of a bargaining unit or the participation of employees in such a strike, if

(a) the employee organization has not been certified by the Board as the bargaining agent for the bargaining unit;

(b) a collective agreement applying to the bargaining unit is in force;

(c) no collective agreement is in force, and no notice to bargain collectively has been given, in respect of the bargaining unit;

(d) no collective agreement is in force, and a notice to bargain collectively has been given, in respect of the bargaining unit, and no request for conciliation has been made under section 161;

(e) the process for resolution of a dispute applicable to the bargaining unit is arbitration;

(f) the process for resolution of a dispute applicable to the bargaining unit is conciliation and a notice to enter into an essential services agreement has been given under section 122 by the employer or the employee organization, as bargaining agent for the bargaining unit and no essential services agreement is in force in respect of the bargaining unit;

(g) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a notice to amend an essential services agreement has been given under section 126 by the employer or the employee organization, as bargaining agent for the bargaining unit, and

(i) the essential services agreement has not been amended as a result of that notice, or

(ii) if an application referred to in subsection 127(1) was made by the employer or the employee organization, the application has not been finally disposed of by the Board;

(h) the process for resolution of a dispute in respect of the bargaining unit is conciliation and less than 30 clear days have elapsed since

(i) the date an essential services agreement came into force in respect of the bargaining unit, or

(ii) the date an application referred to in subsection 123(1) made by the employer or the employee organization as bargaining agent for the bargaining unit was finally disposed of by the Board, if such an application was made;

(i) the process for resolution of a dispute in respect of the bargaining unit is conciliation and the employer or the employee organization, as bargaining agent for the bargaining unit, has given a notice to amend an essential services agreement and less than 30 clear days have elapsed since

(i) the date of the coming into force of the amendment to the essential services agreement as a result of that notice, or

(ii) the date the application referred to in subsection 127(1) made by the employer or the employee organization was finally disposed of by the Board, if such an application was made;

(j) an essential services agreement binding on the employee organization and the employer has been suspended by order under section 131;

(k) the process for resolution of a dispute in respect of the bargaining unit is conciliation and a public interest commission has not been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement, unless the employee organization has been notified under subsection 162(3) that a public interest commission will not be established;

(l) the employee organization, as bargaining agent for the bargaining unit, has been notified under subsection 162(3) that a public interest commission will not be established to assist the employer and the employee organization to enter into or revise a collective agreement and less than seven clear days have elapsed since the date the notice was given under that subsection;

(m) a public interest commission has been established to assist the employer and the employee organization, as bargaining agent for the bargaining unit, to enter into or revise a collective agreement and the Chairperson has not yet sent the commission's report or reconsidered report, as the case may be, to the parties, or, if it has been sent, less than seven clear days have elapsed since it was sent;

(n) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to be bound as described in section 181 in respect of all terms and conditions in dispute;

(o) the employee organization, as bargaining agent for the bargaining unit, has agreed with the employer to refer, under subsection 182(1), all terms and conditions in dispute to final and binding determination;

(p) a vote has been held under subsection 183(1) and a majority of employees participating in the vote have accepted the employer's last offer;

(q) the employee organization has failed to conduct a secret ballot vote in accordance with section 184; or

(r) the employee organization has conducted a secret ballot vote in accordance with section 184 and

(i) it has not received the approval of a majority of the employees who voted, or

(ii) if it has received the approval of a majority of the employees who voted, more than 60 clear days, or any longer period that may be agreed to in writing by the employee organization and the employer, have elapsed since the vote was held.

Essential services

          (2) No employee organization shall declare or authorize a strike the effect of which is or would be to involve the participation of any employee who occupies a position that is necessary under an essential services agreement for the employer to provide essential services, and no officer or representative of an employee organization shall counsel or procure the participation of such employees in a strike.

Appendix 2:

Diagram showing arrangement of parties in a typical hearing room.