160. This Division applies to the employer and the bargaining agent for a bargaining unit whenever

(a) the process for the resolution of a dispute applicable to the bargaining unit is conciliation; and

(b) the parties have bargained in good faith with a view to entering into a collective agreement, but are unable to reach agreement on a term or condition of employment that may be included in a collective agreement.

161. (1) Either party may, by notice in writing to the Chairperson, request conciliation in respect of any term or condition of employment that may be included in a collective agreement.

(2) The party requesting conciliation must

(a) specify in the notice the terms or conditions of employment in respect of which it requests conciliation, and its proposals concerning the report to be made in respect of that term or condition; and

(b) annex to the notice a copy of the most recent collective agreement entered into by the parties.

(3) On receiving the notice, the Chairperson must send a copy to the other party.

(4) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request conciliation in respect of any other term or condition of employment that may be included in a collective agreement and that remained in dispute when the first request for conciliation was made.

(5) The party making the request under subsection (4) must specify in the notice its proposal concerning the report to be made in respect of the term or condition of employment in respect of which it requests conciliation.

162. (1) Subject to subsection (3), on receiving a request for conciliation, the Chairperson must recommend to the Minister that a public interest commission be established for conciliation of the matters in dispute.

(2) The Chairperson may delay recommending the establishment of a public interest commission until satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.

(3) If the Chairperson considers, after consultation with each of the parties, that the establishment of a public interest commission is unlikely to assist them in reaching agreement, the Chairperson must, without delay, notify the parties in writing that he or she will not recommend the establishment of such a commission.

163. (1) The Chairperson may, on his or her own initiative, recommend to the Minister that a public interest commission be established for the conciliation of a dispute if he or she considers that establishing one might assist the parties in reaching agreement and that the parties are unlikely to reach agreement otherwise.

(2) Before acting under subsection (1), the Chairperson must notify the parties of his or her intention to do so.

164. (1) The public interest commission consists of either a single member appointed in accordance with section 166 or, subject to subsection (2), three members, appointed in accordance with section 167.

(2) The public interest commission is to consist of three members only if one of the parties requests it.

165. (1) For the purposes of sections 166 and 167, the Chairperson must, after consultation with the parties, prepare a list of names of persons who could be selected to act as a public interest commission that consists of a single member, or as the chairperson of a public interest commission that consists of three members.

(2) The list must set out

(a) the names of all eligible persons jointly recommended by the parties; and

(b) if the Chairperson is of the opinion that the parties have not jointly recommended a sufficient number of persons, the names of any other eligible persons whom the Chairperson considers suitable.

166. (1) If the public interest commission is to consist of a single member, the Chairperson must submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend the appointment of a particular person named in the list.

(2) After receiving the list, the Minister must, without delay, appoint a person named in the list.

167. (1) If either party requests that the public interest commission consist of three members, the Chairperson must, by notice, require each of the parties, within seven days of its receipt, to nominate a person to be a member of the commission, and on receipt of the nominations, the Chairperson must recommend to the Minister the appointment of the nominated persons as members of the commission. The Minister must appoint those persons without delay.

(2) If a party fails to nominate a person within the time provided for in subsection (1) or nominates a person who is not eligible for appointment, the Chairperson must recommend to the Minister the appointment as a member of the public interest commission of a person whom he or she considers suitable. The Minister must appoint the person without delay and that person is deemed to have been appointed on the nomination of that party.

(3) Within five days after the day on which the second member is appointed, the two members must nominate to be chairperson and third member of the public interest commission a person from the list prepared under subsection 165(1), and the Chairperson must recommend to the Minister the appointment of that person. The Minister must appoint the person without delay as chairperson and third member of the commission.

(4) If the two members fail to make a nomination under subsection (3), the Chairperson must, without delay, submit to the Minister the list prepared under subsection 165(1). The Chairperson may, at his or her discretion, also recommend to the Minister the appointment of a particular person named in the list as the chairperson and third member of the public interest commission.

(5) After receiving the list, the Minister must, without delay, appoint a person named in the list as the chairperson and third member of the public interest commission.

168. No person may act as a member of the public interest commission in respect of a matter referred to conciliation if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as counsel or agent of the employer or of any employee organization that has an interest in the matter referred to conciliation.

169. (1) The Chairperson must, without delay, notify the parties of the establishment of the public interest commission and of the name or names of its member or members, as the case may be.

(2) The notification constitutes conclusive proof that the public interest commission has been established in accordance with this Part and, after it is given, no order may be made or process entered into, and no proceedings may be taken in any court, to question the establishment of the commission or to review, prohibit or restrain any of its proceedings.

170. (1) In the event of the death, incapacity or resignation of the member of a public interest commission that consists of a single member before the commission makes a report to the Chairperson, the Chairperson must recommend to the Minister the appointment of another person from the list submitted under section 166 and the Minister must, without delay, appoint that person or another person on the list. That person must recommence the conciliation proceedings from the beginning.

(2) If a vacancy occurs in the membership of a public interest commission that consists of three members before the commission makes a report to the Chairperson, the vacancy must be filled by the Minister, on the recommendation of the Chairperson, by appointment in the manner provided for in section 167 for the selection of the person in respect of whom the vacancy arose.

171. After a public interest commission is established, the Chairperson must, without delay, deliver to it a copy of the notice given under subsection 161(1), if one was given.

172. As soon as possible after being established, the public interest commission must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.

173. (1) Except as otherwise provided in this Part, the public interest commission may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.

(2) The chairperson of the public interest commission and one other member constitute a quorum in the case of a commission consisting of three members but, in the absence of a member at any proceedings of the commission, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.

174. (1) The public interest commission has all the powers of the Board set out in paragraphs 40(1)(a), (d), (e) and (h) to (j).

(2) The public interest commission may authorize any person to exercise any of its powers set out in paragraphs 40(1)(d), (e), (i) and (j) and require that person to report to it on the exercise of those powers.

175. In the conduct of its proceedings and in making a report to the Chairperson, the public interest commission must take into account the following factors, in addition to any other factors that it considers relevant:

(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;

(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the public interest commission considers relevant;

(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;

(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.

176. (1) The public interest commission must submit a report to the Chairperson as to its success or failure in assisting the parties to the dispute and as to its findings and recommendations within 30 days after it is established, or within any longer period that may be agreed on by the parties or determined by the Chairperson.

(2) The report must be signed by the chairperson of the public interest commission, or by the single member, as the case may be.

177. (1) The report may not, directly or indirectly, recommend the alteration or elimination of any existing term or condition of employment, or the establishment of any new term or condition of employment, if

(a) the alteration, elimination or establishment would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for implementation;

(b) the term or condition is one that has been or may be established under the Public Service Employment Act, the Public Service Superannuation Act or the Government Employees Compensation Act;

(c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees; or

(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct.

(2) The report of the public interest commission may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before conciliation was requested.

178. (1) If the public interest commission consists of three members, the findings and recommendations of a majority of the members in respect of the matters in dispute are deemed to be those of the commission.

(2) If a majority of members of the public interest commission cannot agree in respect of the commission’s findings and recommendations, the findings and recommendations of the chairperson of the commission in respect of the matters in dispute are deemed to be those of the commission.

179. The Chairperson may direct the public interest commission to reconsider and clarify or amplify its report or any part of the report.

180. The Chairperson must, as soon as possible after receiving the report or, if the Chairperson makes a direction under section 179, as soon as possible after receiving the reconsidered report, send a copy to the parties and cause the report, or the reconsidered report, as the case may be, to be published in any manner that he or she considers appropriate.

181. If, before the public interest commission submits its report to the Chairperson, the parties agree in writing that one or more recommendations to be made by the public interest commission in the report are to be binding on them, each such recommendation, once made, is binding on them and must be given effect.

182. (1) Despite any other provision of this Part, the employer and a bargaining agent for a bargaining unit may, at any time in the negotiation of a collective agreement, agree to refer any term or condition of employment of employees in the bargaining unit that may be included in a collective agreement to any eligible person for final and binding determination by whatever process the employer and the bargaining agent agree to.

(2) If a term or condition is referred to a person for final and binding determination, the process for resolution of a dispute concerning any other term or condition continues to be conciliation.

(3) Unless both parties agree, the referral of a term or condition to a person for final and binding determination remains in force until the determination is made.

(4) The form of the final and binding determination must, wherever possible, permit the determination to be

(a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the determination applies; and

(b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the determination.

(5) The determination is binding on the employer, the bargaining agent and the employees in the bargaining unit and is deemed to be incorporated into any collective agreement binding on the employees in the bargaining unit in respect of which the determination applies or, if there is no such agreement, is deemed to be such an agreement.

(6) A person is not eligible to be appointed as a person who makes a final and binding determination under this section if the person has, at any time during the six months before their date of appointment, acted in respect of any matter concerning employer-employee relations as solicitor, counsel or agent of the employer or of any employee organization that has an interest in the term or condition referred for final and binding determination.

183. (1) If the Minister is of the opinion that it is in the public interest that the employees in a bargaining unit be given the opportunity to accept or reject the offer of the employer last received by the bargaining agent in respect of all matters remaining in dispute between the parties, the Minister may

(a) on any terms and conditions that the Minister considers appropriate, direct that a vote to accept or reject the offer be held by secret ballot as soon as possible among all of the employees in the bargaining unit; and

(b) designate the Board, or any other person or body, to be in charge of conducting that vote.

(2) The direction that a vote be held, or the holding of that vote, does not prevent the declaration or authorization of a strike if the employee organization that is certified as the bargaining agent is not otherwise prohibited from making the declaration or authorization, nor does it prevent the participation in a strike by an employee if the employee is not otherwise prohibited from participating in the strike.

(3) If a majority of the employees participating in the vote accept the employer’s last offer,

(a) the parties are bound by that offer and must, without delay, enter into a collective agreement that incorporates the terms of that offer; and

(b) any strike that is in progress when the Board or other person or body in charge of conducting the vote notifies the parties in writing of the employees’ acceptance must cease immediately, and the employees must return to work as soon as the employer determines that it is practicable for them to do so.

(4) The Board or other person or body in charge of conducting the vote must determine any question that arises under this section, including any question relating to the conduct of the vote or the determination of its result.

184. (1) In order to obtain approval to declare or authorize a strike, an employee organization must hold a vote by secret ballot among all of the employees in the bargaining unit conducted in a manner that ensures that the employees are given a reasonable opportunity to participate in the vote and be informed of the results.

(2) An employee who is a member of a bargaining unit for which a vote referred to in subsection (1) was held and who alleges that there were irregularities in the conduct of the vote may, no later than 10 days after the day the results of the vote are announced, make an application to the Board to have the vote declared invalid.

(3) The Board may summarily dismiss the application if it is satisfied that, even if the alleged irregularities did occur, the outcome of the vote would not have been different.

(4) If the Board declares the vote invalid, it may order that a new vote be held in accordance with the conditions it specifies in the order.

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).

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.

(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.

(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.

(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.

(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.

(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.

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.

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.

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.

(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.

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.

(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.

(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.

(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.

191. (1) Subject to subsection (3), on receipt of a complaint made under subsection 190(1), the Board may assist the parties to the complaint to settle the complaint. If it decides not to do so or if the complaint is not settled within a period that the Board considers to be reasonable in the circumstances, it must determine the complaint.

(2) The Board may refuse to determine a complaint made under subsection 190(1) in respect of a matter that, in the Board’s opinion, could be referred to adjudication under Part 2 by the complainant.

(3) If a complaint is made in writing under subsection 190(1) in respect of an alleged failure by the employer or any person acting on behalf of the employer to comply with subsection 186(2), the written complaint is itself evidence that the failure actually occurred and, if any party to the complaint proceedings alleges that the failure did not occur, the burden of proving that it did not is on that party.

192. (1) If the Board determines that a complaint referred to in subsection 190(1) is well founded, the Board may make any order that it considers necessary in the circumstances against the party complained of, including any of the following orders:

(a) if the employer has failed to comply with section 107 or 132, an order requiring the employer to pay to any employee compensation not more than the amount that, in the Board’s opinion, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to the employee;

(b) if the employer has failed to comply with paragraph 186(2)(a), an order requiring the employer to

(i) employ, continue to employ or permit to return to the duties of their employment any person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended, transferred, laid off or otherwise discriminated against, or discharged contrary to that paragraph,

(ii) pay to any person affected by that failure compensation in an amount that is not more than, in the Board’s opinion, the remuneration that would, but for that failure, have been paid by the employer to that person, and

(iii) rescind any disciplinary action taken in respect of any person affected by that failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the person by the employer;

(c) if the employer has failed to comply with paragraph 186(2)(c), an order requiring the employer to rescind any action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employer;

(d) if an employee organization has failed to comply with section 187, an order requiring the employee organization to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on any proceeding that the Board considers that the employee organization ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on;

(e) if an employee organization has failed to comply with paragraph 188(b) or (d), an order requiring the employee organization to reinstate or admit an employee as one of its members; and

(f) if an employee organization has failed to comply with paragraph 188(c), (d) or (e), an order requiring the employee organization to rescind any disciplinary action taken in respect of any employee affected by the failure and pay compensation in an amount that is not more than, in the Board’s opinion, any financial or other penalty imposed on the employee by the employee organization.

(2) If the order is directed to a person who has acted or purported to act on behalf of the employer, the order must also be directed to the Secretary of the Treasury Board in the case of the core public administration and, in the case of a separate agency, to its deputy head.

(3) If the order is directed to a person who has acted or purported to act on behalf of an employee organization, the order must also be directed to the chief officer of that employee organization.