Ontario Labour Law — Labour Relations Act, Collective Bargaining, and OLRB

Labour Relations Act — Scope and Administration

The Labour Relations Act SO 1995 c 1 Sch A (LRA) governs collective bargaining relationships, union certification, collective agreements, and unfair labour practices in Ontario's private sector and certain provincial public sector employees. The LRA is administered by the Ontario Labour Relations Board (OLRB), an independent adjudicative body.

Federal jurisdiction employees (those in federally regulated industries — banking, telecommunications, interprovincial transportation, broadcasting, postal services) are subject to the Canada Labour Code RSC 1985 c L-2 Part I, administered by the Canada Industrial Relations Board (CIRB). Certain Ontario public sector employees are governed by sector-specific legislation: the Crown Employees Collective Bargaining Act SO 1993 c 38, the Hospital Labour Disputes Arbitration Act RSO 1990 c H.14, and the School Boards Collective Bargaining Act SO 2014 c 5, among others.

Union Organizing and Certification

Union organizing in Ontario proceeds under LRA Part I. Employees have the right to join and participate in the activities of a trade union (LRA s.5). Employers have the right to freedom of expression regarding union organizing, but may not threaten, coerce, or promise benefits in connection with union activity (the unfair labour practices provisions apply during organizing — s.70).

A trade union applies for certification by filing an application with the OLRB. The OLRB must receive the application when the union has "demonstrated majority support" — that is, when 40% or more of the employees in the proposed bargaining unit have expressed their desire to be represented by the trade union through membership cards. If 40% but less than 55% of employees have signed cards, the OLRB orders a representation vote. If 55% or more have signed cards, the OLRB may certify without a vote (card-based or automatic certification).

The bargaining unit is the group of employees for which the union seeks the right to bargain. The OLRB determines the appropriate bargaining unit based on criteria including the community of interest among employees, the functional coherence of the group, and the wishes of the parties.

Collective Bargaining Obligations

Once a union is certified, the employer is required to bargain in good faith with the union for a collective agreement (LRA s.17). The duty to bargain in good faith requires the parties to: meet at reasonable times; make reasonable proposals; give detailed responses to the other party's proposals; and not engage in surface bargaining (going through the motions of bargaining with no genuine intention to reach an agreement).

The parties must begin bargaining within 15 days of notice being given (or within the time specified in the LRA) and must bargain in a manner consistent with the obligation to make every reasonable effort to conclude a collective agreement (LRA s.15). A first collective agreement may be referred to the OLRB for first contract arbitration if the parties have bargained in good faith but are unable to reach agreement.

Collective agreements must be in writing and must contain a provision for the final and binding settlement by arbitration of all differences between the parties (LRA s.48). Minimum term is one year.

Unfair Labour Practices

Part II of the LRA (ss.70-96) prohibits a range of unfair labour practices by employers, trade unions, and their agents:

• Employer interference (s.70): An employer must not participate in or interfere with the formation, selection, or administration of a trade union, or the representation of employees by a trade union, or contribute financial or other support to a trade union.
• Employer intimidation/coercion (s.72): An employer must not seek to compel any person to refrain from becoming or continuing to be a member of a trade union by intimidation, dismissal, or threat of dismissal.
• Reprisal (s.74): An employer must not impose any penalty on or refuse to employ any person because of their exercise of any right under the LRA.
• Union coercion (s.76): A trade union must not seek to compel an employer to bargain collectively through coercion, intimidation, threats, or undue influence.

Unfair labour practice complaints must be filed with the OLRB within three months of the act complained of (LRA s.96(2)). The OLRB has broad remedial authority — it may order reinstatement, compensation, cease and desist orders, and (in egregious cases) remedial certification without a vote.

Strikes and Lockouts

A strike is defined in LRA s.1 as a cessation of work, a refusal to work, or a refusal to continue to work by employees in combination or in concert or in accordance with a common understanding. A lockout is defined as the closing of a place of employment, a suspension of work, or a refusal by an employer to continue to employ employees for the purpose of compelling the employees to agree to conditions of employment.

Strikes and lockouts are prohibited (LRA s.86) unless: (1) the collective agreement has expired; (2) conciliation/mediation has been exhausted (the Minister of Labour has issued a "no-board" report); and (3) the statutory notice periods have been observed. A strike vote is required — a majority of employees in the bargaining unit voting in favour in a secret ballot vote authorized by the OLRB.

Essential services provisions in some sectors (hospitals, schools) restrict or prohibit the right to strike and provide for binding arbitration as the final dispute resolution mechanism.

Grievance Arbitration

Every collective agreement must contain an arbitration clause providing for the final and binding resolution of differences between the parties (LRA s.48). A "grievance" is an alleged violation of the collective agreement. Grievances are filed within the time limits specified in the collective agreement and proceed through a multi-step grievance procedure before proceeding to arbitration.

Arbitrators are appointed under the collective agreement (single arbitrator or panel of three) and have broad authority to determine whether a violation has occurred and to fashion remedies including reinstatement, compensation, and directions to comply. Arbitration awards are final and binding and may be enforced in the courts. Appeals from arbitration awards go to the Divisional Court on questions of jurisdiction and are reviewed on the reasonableness standard for arbitral interpretations of the collective agreement.