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The Ontario Labour Relations Board (the "Board") was established by section 2 of the Labour Relations Act, 1948 and is continued by subsection 110(1) of the Labour Relations Act, 1995 S.O. 1995, C1, as amended. The Board is an adjudicative agency of the Government of Ontario and its' staff is appointed under the Public Service Act.
The Board is an independent, adjudicative tribunal issuing decisions based upon the evidence presented and submissions made to it by the parties, and upon its interpretation and determination of the relevant legislation and jurisprudence. It plays a fundamental role on the labour relations regime in Ontario and encourages harmonious relations between employers, employees and trade unions by dealing with matters before it as expeditiously and as fairly as reasonably possible.
The OLRB's mandate is to provide, as an independent tribunal, excellence in administrative justice through the effective resolution of labour and employment disputes.
From its inception as Canada’s first "Labour Court" to its most recent incarnation, the Ontario Labour Relations Board administers a variety of employment and labour relations-related statutes with a view to promoting safe, fair and harmonious conditions in Ontario’s workplaces.
The Board had its beginnings in 1943, when the Ontario Legislature passed the Collective Bargaining Act, one of the first attempts in Canada to institute an effective scheme of compulsory collective bargaining. This legitimized collective bargaining in Ontario under the Ontario Labour Court, which was a division of the Supreme Court of Ontario. At the same time, it abolished the common law doctrines of conspiracy and restraint of trade as they had been applied to trade unions, and gave employees a right to participate in union activity. A union was permitted to apply for certification as the bargaining agent for a group of employees. The Court had power to ascertain the appropriate unit for the purpose of collective bargaining.
The Act contained several features which are standard in labour relations legislation today: management dominated organizations could not be certified, managerial employees were excluded from the Act, employers could not discriminate against employees for participation in union activity, employers were required to recognize a certified bargaining agent, and there was a duty to bargain in good faith. The Labour Court had broad remedial powers - something which the Ontario Labour Relations Board would not have for many years. The Labour Court was the only forum for resolution of disputes arising under a collective agreement.
The Ontario Labour Court was to have a short life span, attributable to a number of factors: the prohibitive cost of proceedings; the Judges’ apparent dislike of labour matters, and most importantly, the federal government’s decision to control labour relations matters during World War II. The Ontario Labour Court was replaced by the Ontario Labour Relations Board, pursuant to The Labour Relations Board Act, 1944, which was still subject to the federal Wartime Labour Relations Board.
Following the Second World War, the division of powers between the federal and provincial governments was re-established, and labour relations were returned largely to the hands of the provincial legislatures.
In 1947, the Ontario Labour Relations Board became independent of the Federal Government. The next year, The Labour Relations Act, 1948 empowered the Lieutenant-Governor in Council to make regulations "in the same form and to the same effect as that ... Act which may be passed by the Parliament of Canada at the session currently in progress..." This Act was basically transitional in nature, since work was already under way on the drafting of separate provincial legislation, which made its first appearance in The Labour Relations Act, 1950.
A major function of the Board was, and to a great extent still remains, certifying trade unions as bargaining agents.
The history of the Board is largely a history of the acquisition of new powers and functions, as new ways of dealing with the problems inherent in industrial relations developed. Initially, however, the Board’s role was fairly limited. There was no enforcement mechanism at the Board’s disposal in 1950. The major enforcement method was prosecution, in which case the Board had to grant consent to prosecute. The Board had the power to declare a strike or lock-out unlawful, but this in itself fell short of being a very complete remedy. In a situation where an individual had been refused employment, discharged, discriminated against, threatened, coerced, or otherwise dealt with contrary to the Act, the appropriate remedy lay in an inquiry by a conciliation officer who then reported to the Minister who in turn could make an appropriate order.
Thus, outside of granting certifications and decertifications, the Board’s power was quite limited. The power to make certain declarations, determinations, or to grant consent to prosecute under the Act was remedial only in a limited way. Of some significance during the fifties was the Board’s acquisition of the power to grant a trade union "successor" status. In 1962, the complementary section providing for the preservation of bargaining rights in the case of "successor employers" was passed and was later expanded so as to preserve existing collective agreements.
In 1960, the Board received the authority to order reinstatement, with or without compensation. In conjunction with this new power was the power to designate a field officer to investigate complaints. The Board’s reinstatement and compensation orders could be filed in the Supreme Court of Ontario and were enforceable as orders of that Court. The Board also received the power to refer jurisdictional disputes to a new jurisdictional disputes commission which had the power to make interim orders or directions. The Board was given limited power to review the directions. As with the Board’s reinstatement and compensation orders, the interim orders could be filed with the Supreme Court and thus become enforceable as orders of that Court. The Board also received the power to set a terminal date for filing membership evidence and evidence opposing certification, and the discretion to refuse to "carve out" a craft unit where there was a history of industrial organization in a plant. In 1960, provision was also made for pre-hearing representation votes.
In 1962, the construction industry was given a separate but somewhat similar regime under the Act. Provision was made for determination of bargaining units by reference to geographic areas rather than particular projects. Labour policy with regard to the construction industry has continued to evolve. Legislation was introduced in 1977 to provide for province-wide bargaining in the industrial, commercial and institutional ("ICI") sector.
In 1970, the Board received a significant extension to its remedial authority. Provision was made for authorization of a Labour Relations Officer to inquire into certain complaints with a view to settling the matters. The most interesting addition to the situation in which the Board would make remedial orders was in the case of a breach of the newly created "duty of fair representation". This duty, imposed on trade unions, required them not to act in a manner that was arbitrary, discriminatory, or in bad faith in their representation of employees for whom they held bargaining rights. This duty was extended to cover referral of persons to work. The Board also received the power to make "cease and desist" orders with respect to unlawful strikes and lock-outs in the construction industry, which could be filed with the Supreme Court and be enforceable as orders of the Court.
A major increase in the Board’s remedial powers under the Labour Relations Act occurred in 1975. A settlement reached by the parties and put into writing was binding on the parties, and a breach of such settlement could be dealt with in the same fashion as a breach of a provision of the Act. The Board’s remedial powers were extended to all violations of the Act, and orders of the Board were enforceable in the same way that an order of the Supreme Court was enforceable. The Board also received authority to make "cease and desist" orders with respect to any unlawful strike or lock-out. It was in 1975 as well, that the Board’s jurisdiction was enlarged to enable it to determine grievances in the construction industry referred to it by one of the parties to a collective agreement.
In June 1980, compulsory check-off of union dues was introduced, as was the entitlement of all employees in a bargaining unit to participate in ratification and strike votes. Provision was also made for the Minister of Labour to direct a vote of the employees in a bargaining unit on their employer’s final offer at the request of their employer. In June 1983, section 78 was introduced into the Act, prohibiting strikes related to misconduct and the engaging of, or acting as, a professional strike-breaker. To date, the Board has not been called upon to interpret or apply section 78.
Amendments in 1984 gave the Board explicit jurisdiction to deal with illegal strikes or threats of illegal strikes, and permitted a party affected by an illegal strike to seek relief through the expedited procedures in sections 100 and 144, rather than the more cumbersome process under section 96. The Act also permitted the Board to respond in an expedited fashion to illegal agreements or arrangements which affect the ICI sector of the construction industry. It further established an appropriate voting constituency for strike, lock-out and ratification votes in that sector, and provided a procedure for complaints relating to voter eligibility to be filed with the Minister of Labour.
In May 1986, first contract arbitration was introduced into the Act. Where negotiations had been unsuccessful, either party could apply to the Board to direct the settlement of a first collective agreement by arbitration. Within strict time limits, the Board was to determine whether the process of collective bargaining had been unsuccessful for a number of enumerated grounds. Where a direction was given, the parties had the option of having the Board arbitrate the settlement.
In December 1986, the Labour Relations Act was brought into line with the Human Rights Code, 1981 and the Canadian Charter of Rights and Freedoms. The provisions prohibiting the Board from certifying a trade union which discriminates, and deeming an agreement not to be a collective agreement if it discriminates, were amended to include any ground of discrimination prohibited by those two statutes.
In 1990, fines under the Labour Relations Act were increased: for a breach of the Act, fines for any individual were doubled to $2,000 and those for a corporation or trade union were increased to $25,000.
In December 1991, amendments to the Act increased the terms of province-wide agreements in the ICI sector of the construction industry from two to three years, prohibiting counting ballots in province-wide agreement ratification votes until all voting in the province is completed, and provided for the establishment of a corporation to facilitate collective bargaining and otherwise assist the sector.
On January 1, 1993, amendments extended the application of the Act to domestic workers and certain categories of professionals, and allowed security guards to join the union of their choice. They also provided that regulations may be made that would make the Act apply to agricultural workers.
Employees and union officials were entitled to engage in organizing and picketing activities on private property normally open to the public (such as a shopping mall) in defined circumstances. Provision was made for an expedited hearing on a complaint that a person was illegally discharged or disciplined during an organizing drive.
The Act altered the certification process through which unions obtain bargaining rights. The requirement of a membership fee was eliminated. The level of union support necessary for a representation vote (to determine whether a union would be certified to represent the employees) was reduced from 45 percent of employees in the bargaining unit to 40 percent. The standard for certifying a trade union when an employer had contravened the Act such that the true wishes of employees about being represented by the union were not likely able to be ascertained was changed: the requirement that the union have support adequate for collective bargaining was removed.
The Board was given the power to combine two or more bargaining units involving the same employer and union. A bargaining unit consisting of full-time and part-time employees was deemed to be an appropriate unit.
While the Board retained the power to direct that a first contract be settled by arbitration, on the same grounds that existed before the amendments came into force, it no longer had jurisdiction to settle the terms of the first contract itself. Parties could apply to the Minister for a first contract arbitration. Access to arbitration was automatic 30 days after it became lawful to strike or lock-out.
The amendments prevented an employer from using the services of various categories of replacement workers to do the work of employees in a bargaining unit that was locked out or on strike that had the support of 60 percent of employees who voted in a secret ballot. Provision was made for certain types of essential work to be done. During a strike or lock-out, employment benefits for employees were continued if the union offered to make the payments to maintain them. A protocol governing the return of employees to work after a lock-out or strike was set out.
Employees were given "just cause" protection against being discharged or disciplined after the union is certified, during the life of a collective agreement, and after the expiry of the agreement until a new collective agreement is signed.
The amendments extended the scope of successor rights to cover the sale of a business that was previously subject to federal labour law, and to cover transfers of work in the building contract services sector (e.g., cleaning, food, and security). The successor rights provisions, which previously continued bargaining rights and collective agreements upon the sale of a business, were extended so that the successor employer was bound to all other labour relations proceedings and collective bargaining notices.
The amendments provided the Ontario Labour Relations Board with additional procedural powers, including the power to make interim orders, and with an additional remedial authority to settle terms of the collective agreement in the case of a breach of the duty to bargain in good faith. They also created a new process for the resolution of jurisdictional disputes between unions.
In January 1994, the construction industry provisions of the Act were amended to increase the participation of local unions in collective bargaining by providing for shared bargaining rights between local trade unions and parent unions. It also provided for the appointment of trustees of employment benefit plans by local unions, and, unless there is just cause, prohibited a parent union from altering a local union's jurisdiction, interfering with a local union’s autonomy, or penalizing a local union official or member of the local.
In February 1994, the Board was given jurisdiction over collective bargaining in the public service through the enactment of the Crown Employees Collective Bargaining Act, 1993. "CECBA" provided Crown employees with the right to strike, along with provisions to ensure that essential services would be maintained during a strike or lock-out. The Public Service Act was amended to provide a new scheme governing political activity of Crown employees, and to give the Board jurisdiction over some complaints that employees suffered adverse consequences for engaging in permitted political activity.
In June 1994, collective bargaining in the agricultural and horticultural industries was introduced, then repealed the following year.
In November 1995, the Labour Relations and Employment Statute Law Amendment Act, 1995 ("Bill 7") repealed the Labour Relations Act and enacted the Labour Relations Act, 1995, reversing many of the recently made amendments: bargaining units that were combined were automatically divided unless the employer and union agreed otherwise. Bargaining rights and collective agreements covering professionals to whom the Act’s coverage had been extended were terminated. Security guards were given only limited access to broader workplace bargaining units.
Significant changes were made to the certification process. The card-based certification system was eliminated and replaced with a vote-based scheme. The Board is required to hold a representation vote in certification applications where at least 40 percent of employees in the proposed bargaining unit appear to be members of the applicant union, and is required to hold the vote within five days of the application unless the Board directs otherwise. The amendments impose an automatic one-year bar on unions against re-applying for the employees in the original application if it loses a certification vote or withdraws its application after the vote is held. The bar is discretionary if the union withdraws its application before the vote is held. The Board may now refuse to certify a union if it contravenes the Act such that the true wishes of employees about being represented by the union are not likely able to be ascertained and no other remedy would counter the effects of the contravention.
The amendments lowered the level of support that is required to get a vote in a termination application from 45 percent of employees in the bargaining unit to 40 percent. The requirement that the evidence in support of a termination application be proven to be voluntary was removed, but the Board may dismiss an application if the employer or person acting on behalf of the employer initiated the application or engaged in threats, coercion or intimidation in connection with the application.
The Act now stipulates that a collective agreement does not take effect until it is ratified by a vote of the employees in the bargaining unit (unless the agreement is an arbitrated contract, the result of a last offer vote, or involves construction industry employees). Similarly, except in the construction industry, a strike is not lawful unless a vote is held among the employees and a majority of voters support it.
The amendments also established a new process for the adjudication of duty of fair representation and referral complaints.
In the fall of 1996, the Ministry of Labour transferred the jurisdiction of the Office of Adjudication to the Ontario Labour Relations Board. This meant that the administration of appeals under the Employment Standards Act and the Occupational Health and Safety Act was handled by the Board, and the Board’s Vice-Chairs were duly appointed to hear and determine such appeals.
In October 1997, the Legislature passed the Public Sector Dispute Resolution Act, 1997 and the Public Sector Labour Relations Transition Act, 1997 ("Bill 136") and the Education Quality Improvement Act, 1997 ("Bill 160"). Bill 136 established a separate regime of successor rights governing matters that arise out of restructuring and amalgamations in the broader public sector. The Act gives the Board the power to determine new bargaining unit configurations, to appoint new bargaining agents, and to address other collective bargaining issues that may arise from municipal amalgamations, school board changes and hospital restructuring. Bill 160 repealed the School Boards and Teachers Collective Negotiations Act and replaced it with collective bargaining under the Labour Relations Act, 1995 (with some specific modifications).
In June 1998, the Economic Development and Workplace Democracy Act, 1998 ("Bill 31") brought further changes to the Labour Relations Act, 1995. Employers could challenge the appropriateness of a bargaining unit or a union’s estimates of the number of individuals in a proposed bargaining unit. The Act also removed the Board’s ability to certify a trade union despite the unsuccessful result of a representation vote. Further, the Act gave legislative endorsement to the administrative merger of the Office of Adjudication with the Ontario Labour Relations Board. Adjudicators and referees were eliminated and the Board was given full authority to mediate and adjudicate appeals under the ESA and the OHSA.
TWENTY- FIRST CENTURY
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The text of the Labour Relations Act, Occupational Health and Safety Act and Employment Standards Act can be found at the Statutes of Ontario web site.
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