1997 Legislative Session: 2nd Session, 36th Parliament
FIRST READING
The following electronic version is for informational purposes only.
The printed version remains the official version.
HONOURABLE JOHN CASHORE
MINISTER OF LABOUR
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:
Labour Relations Code
1 Section 14 (4) Labour Relations Code, R.S.B.C. 1996, c. 244, is amended by adding the following paragraph:
(b.1) in the case of an employer, waive the requirements under section 55 (1) (b), if in the board's opinion, the employer's actions may have affected the trade union's ability to successfully conduct a strike vote.
2 Section 18 (2) (a) and (b) is amended by striking out "6 months" and substituting "10 months".
3 Section 19 is amended by adding the following subsection:
(1.1) For the purpose of subsection (1), the seventh and eighth months for an appropriate unit within the construction industry are deemed to be July and August.
4 Section 21 (1) is amended by striking out "a group of employees belongs" and substituting "one or more employees belong".
5 The following section is added:
35.1 (1) This section applies with respect to the provision of building cleaning services, food services and security services provided directly or indirectly by or to a building owner or manager at a premise.
(2) This section does not apply with respect to the following services:
(a) construction;
(b) maintenance other than maintenance activities related to cleaning the premises;
(c) the production of goods other than goods related to the provision of food services at the premises for consumption on the premises.
(3) A business or part of it is deemed to have been transferred for the purposes of section 35 if
(a) employees perform services at premises that are their principal place of work,
(b) their employer ceases, in whole or in part, to provide the services at those premises, and
(c) substantially similar services are subsequently provided at the premises under the direction of another employer.
(4) The employer referred to in subsection (3) (c) is deemed to be the transferee for the purposes of section 35.
6 Section 37 (1) is amended by adding "or voluntarily recognized" after "certified".
7 Section 40 (2) is repealed.
8 Section 45 (1) (b) (i) is amended by striking out "4 months" and substituting "10 months".
9 Section 55 is amended by adding the following subsection:
(9) Sections 90 (1) and 99 apply to an arbitration under this section.
10 The following Part is added:
Part 4.1 -- Construction Industry Collective Bargaining
Division 1 -- Introductory Provisions
55.1 In this Part:
"employee bargaining agent" means a trade union association that is determined by an order of the board under section 55.31 to be the exclusive agent to bargain collectively on behalf of all unionized construction employees in a subsector;
"employer bargaining agent" means an employers' organization that is determined or designated by an order of the board under section 55.3 or 55.34 to be the exclusive agent to bargain collectively on behalf of all unionized construction employers in a subsector;
"subsector" means any of the following subsectors of the construction industry:
(a) the commercial, institutional and high rise residential subsector;
(b) the industrial subsector;
(c) the residential, other than high rise residential, subsector;
(d) the sewer and water main subsector;
(e) the pipeline subsector;
(f) the road building subsector;
(g) the electrical power subsector;
"unionized construction employee" means an employee who is employed by a unionized construction employer and with respect to whom a trade union has established the right to bargain collectively with the unionized construction employer;
"unionized construction employer" means an employer in a subsector with respect to whom a trade union has established the right to bargain collectively on behalf of unionized construction employees
(a) under an order of the board made under this Part or Part 3, or
(b) as a result of the employer having recognized the trade union as the agent to bargain collectively on behalf of those unionized construction employees.
55.11 In addition to the purposes referred to in section 2, the purposes of this Part are to
(a) achieve industrial stability and orderly collective bargaining in the construction industry,
(b) establish a labour relations environment conducive to skills development in the construction industry, and
(c) facilitate the implementation of a system of Province wide multi party collective bargaining within subsectors of the construction industry.
Division 2 -- Organization of Employers and Trade Unions
55.2 Subject to this Part, unionized construction employers have the right
(a) to organize in and to form, join or assist an employers' organization, and
(b) to bargain collectively through an employers' organization of their own choosing.
55.21 (1) Subject to this Part, 2 or more trade unions that represent unionized construction employees may establish a trade union association for purposes of representing a unit of employees and for collective bargaining within one or more subsectors.
(2) On application by a trade union association established under subsection (1), if the board is satisfied that
(a) the proposed bargaining unit is appropriate for collective bargaining, and
(b) the proposed trade union association is representative of the employees in that unit
the board may certify the association established under subsection (1).
(3) When an association makes an application for certification under this section, the board may make inquiries and may make orders and issue directions it considers necessary or advisable respecting the formation and the constitution and bylaws of the association and the fair representation of the trade unions comprising the trade union association.
(4) If the board certifies a trade union association under this section, it may make orders or determinations consistent with section 41 (6) that may be necessary or advisable to carry out the purpose of this section.
55.22 For the purposes of certification and collective bargaining, the board may determine an appropriate bargaining unit in a subsector as comprising more than one employer if
(a) the unit is otherwise appropriate,
(b) a majority of employees for each employer are members in good standing of the trade union or trade union association making the application, and
(c) a majority of the employers have consented to the representation of the unit by the trade union or trade union association.
Division 3 -- Bargaining Agents
55.3 (1) An employers' organization that claims to represent a majority of the unionized construction employers in a subsector may make an application to the board for an order determining it to be the employer bargaining agent for all unionized construction employers in that subsector.
(2) An application under subsection (1) may be made only during the month of January or February in any year if the application concerns a subsector for which the board has previously determined that another employers' organization is the employer bargaining agent under subsection (1) or designated another employers' organization under section 55.34.
(3) If the board is satisfied that the applicant represents a majority of the unionized construction employers in a subsector and that those employers employ a majority of the unionized construction employees in that subsector during the time frame that the board considers appropriate, the board must make an order determining the applicant to be the employer bargaining agent for all unionized construction employers in that subsector.
(4) For the purposes of making a determination under this section, the board may direct a vote to be taken of all unionized construction employers eligible to vote to determine the question.
(5) In determining eligibility for the vote under subsection (4), the board may disqualify those employers that the board feels have not had an active and ongoing involvement in the subsector during the time frame referred to in subsection (3).
55.31 (1) A trade union association that claims to represent a majority of trade unions with a majority of unionized construction employees within a subsector may make an application to the board for an order determining it to be the employee bargaining agent for all trade unions in the subsector.
(2) An application under subsection (1) may be made only during the month of January or February in any year if the application concerns a subsector for which the board has previously determined that another employees' organization is the employee bargaining agent under subsection (1).
(3) If the board is satisfied that the applicant represents a majority of the trade unions representing a majority of the unionized construction employees in a subsector, the board must make an order determining the applicant to be the employee bargaining agent for all unionized construction employees in that subsector.
(4) For the purposes of making a determination under this section, the board may direct a vote to be taken of all trade unions eligible to vote to determine the question.
(5) The vote conducted under subsection (4) must be weighted in a manner that the board considers will best reflect each trade union's share of the unionized construction employees in the subsector during a time frame that the board considers appropriate.
55.32 (1) All trade unions whose bargaining rights are affected by a determination under section 55.31 have the right to join and participate in the trade union association determined to be the employee bargaining agent.
(2) All employers whose bargaining rights are affected by a determination under section 55.3 or a designation under section 55.34 have the right to join and participate in the employers' organization determined or designated to be the employer bargaining agent.
55.33 (1) In order to achieve the purposes of this Part, the minister may direct the board to consider, despite other provisions of this Code,
(a) whether one or more subsectors of the construction industry should be designated as requiring multi employer collective bargaining on behalf of all unionized construction employers in the subsector, and
(b) whether an employers' organization exists that is representative of the interests of employers in the subsector.
(2) Before making a direction under subsection (1), the minister may conduct or cause to be conducted any inquiry or consultation that the minister considers necessary.
(3) The minister may consider a request by an employers' organization to make a direction under subsection (1).
55.34 (1) If a direction is made by the minister under section 55.33, the board must determine the matters referred to it under that section.
(2) After a determination under subsection (1), the board may designate an employers' organization as the employer bargaining agent.
(3) An employers' organization that wishes to be designated by the board under subsection (2) must file with the board
(a) a notice stating that it wishes to be so designated, and
(b) a copy of its constitution and bylaws.
(4) In considering which employers' organization to designate as the employer bargaining agent under subsection (2), the board
(a) may conduct or cause to be conducted any inquiry or consultation with unionized construction employers, employers' organizations and trade unions that the board considers necessary, and
(b) must consider the representative character of any employers' organization that has given notice that it wishes to be designated.
55.35 (1) If an employers' organization is determined or designated to be the employer bargaining agent for a subsector,
(a) all of the rights, duties and obligations of unionized construction employers in a subsector vest in the employer bargaining agent to the extent that is necessary to give effect to this Part,
(b) the employer bargaining agent is the exclusive agent to bargain collectively on behalf of all unionized construction employers in the subsector,
(c) a trade union or an employee bargaining agent representing unionized construction employees in the subsector must bargain collectively with the employer bargaining agent with respect to those unionized construction employees, and
(d) subject to section 55.5, a collective agreement that is made after the determination or designation is void if it is made with any person or organization other than the employer bargaining agent.
(2) If an employers' organization is determined or designated to be the employer bargaining agent, the provisions of this Code that relate to employers apply to that employer bargaining agent.
(3) If an employers' organization is determined or designated to be the employer bargaining agent for more than one subsector, only the unionized construction employers in one subsector are entitled to make decisions with respect to negotiating and concluding a collective agreement on behalf of the unionized construction employers in that subsector.
55.36 If a trade union association is determined to be the employee bargaining agent for a subsector,
(a) all of the rights, duties and obligations of construction trade unions in a subsector vest in the employee bargaining agent to the extent that is necessary to give effect to this Part,
(b) the employee bargaining agent is the exclusive agent to bargain collectively on behalf of all trade unions in the subsector,
(c) an employer or an employer bargaining agent representing unionized construction employers in the subsector must bargain collectively with the employee bargaining agent with respect to those unionized construction employers, and
(d) subject to section 55.5, a collective agreement that is made after the determination is void if it is made with any person or organization other than the employee bargaining agent.
55.37 (1) If an employers' organization is determined or designated to be the employer bargaining agent with respect to a subsector, section 55.35 applies to
(a) an employer who subsequently becomes a unionized construction employer in that subsector, or
(b) a unionized construction employer who subsequently becomes engaged in the construction industry in that subsector.
(2) If subsection (1) applies, the unionized construction employer and the unionized construction employees of that employer working in that subsector are bound by the terms and conditions of any collective agreement then in effect between the employer bargaining agent and a trade union or an employee bargaining agent with respect to that subsector.
(3) Despite subsections (1) and (2), the parties to a collective agreement may make special collective agreement arrangements that they consider reasonable for newly unionized construction employers for the purposes of accommodating existing projects of that employer referred to in subsection (1).
55.38 A collective agreement entered into with respect to a subsector remains in force for its term even though another employers' organization becomes the employer bargaining agent or another trade union association becomes the employee bargaining agent with respect to the subsector.
55.39 (1) If an employers' organization is determined or designated to be the employer bargaining agent with respect to a subsector, every unionized construction employer in the subsector must pay to the employer bargaining agent any reasonable contract administration fees that may be set by the employer bargaining agent.
(2) If a trade union association is determined to be the employee bargaining agent in a subsector, every trade union that represents unionized construction employees employed in the subsector must pay to the employee bargaining agent any reasonable contract administration fees that may be set by the employee bargaining agent.
(3) To facilitate collection of contract administration fees, every unionized construction employer and every trade union in a subsector must provide their bargaining agent with any information that is necessary, in the opinion of the bargaining agent, for the calculation of the contract administration fees that are payable by unionized construction employers and affected trade unions in the subsector.
Division 4 -- Collective Bargaining
55.4 (1) If a trade union or employee bargaining agent wishes to cause a strike with respect to an employer bargaining agent, it must cause the strike
(a) with respect to
(i) all unionized construction employers in the subsector represented by the employer bargaining agent, and
(ii) all the work in the subsector being performed by the unionized construction employers referred to in subparagraph (i), and
(b) by all unionized construction employees of the unionized construction employers referred to in paragraph (a) (i).
(2) If an employer bargaining agent wishes to cause a lockout of unionized construction employees employed by unionized construction employers in a subsector, all unionized construction employers in the subsector must participate in the lockout and must lock out all unionized construction employees in the subsector.
(3) Before work begins on a specific project, the bargaining agents may agree that the project will be excluded from the requirements of subsections (1) and (2).
55.41 A collective agreement negotiated in a subsector with respect to which a determination or designation has been made under this Part must be for a term of 3 or more years calculated from April 30 of the first year in which the collective agreement is first negotiated within the subsector.
Division 5 -- Other Provisions
55.5 (1) In this section, "project collective agreement" means a collective agreement negotiated among a trade union or unions, trade union association or employer bargaining agent and a project owner or project owners, that is to be effective during the term of a project.
(2) One or more persons who wish to engage in a major project in a subsector affected by a determination or designation under this Part may apply to the minister for the right to bargain collectively and enter into a project collective agreement for the duration of the project.
(3) An application under subsection (2) must be in the form and contain the information required by the minister.
(4) If the minister is satisfied that the project that is described by the application is of significant importance to the economy of British Columbia, the minister may grant the application.
(5) If the minister allows the establishment of a project collective agreement under this section, the collective agreement negotiated by the parties for that project takes precedence over the collective agreement referred to in section 55.35 or 55.36.
55.51 (1) A collective agreement within the construction industry entered into after this Part comes into force must contain a provision for final and conclusive settlement, without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes related to the assignment or distribution of work to trade union members or to workers of a particular trade or craft.
(2) The provision referred to in subsection (1) must be based on assignments and distribution of work decisions reflecting experience within British Columbia.
(3) If a collective agreement entered into after this Part comes into force does not contain a provision referred to in subsection (1), the collective agreement is deemed to contain the following provisions:
(a) the parties recognize and must comply with the Procedural Rules for the Umpire of Jurisdictional Work Assignments in British Columbia and other supplementary rules, agreements and memorandums that are agreed on from time to time by the Construction Labour Relations Association of B.C. and the British Columbia and Yukon Territory Building and Construction Trades' Council (the "Plan");
(b) on request, the employer must make known the proposed work assignments;
(c) the parties agree that they will comply with the decisions and awards of the Umpire of Jurisdictional Work Assignments established by the Plan;
(d) the trade union agrees that the establishment of picket lines and the stoppage of work because of the employer's or umpire's assignment of work are prohibited, and a local union must not institute or post picket lines for jurisdictional purposes;
(e) the parties to this agreement agree to pay reasonable fees set by the Trustees of the Jurisdictional Assignment Plan Fund established by the Plan, and to remit the fees to the Trustees by the 15th day of the month following the month to which the fees relate.
11 Section 68 is amended
(a) by repealing subsection (1) (b) and substituting the following:
(b) who ordinarily works at another of the employer's places of operations that is not directly involved in the dispute, , and
(b) by adding the following subsection:
(4) Subsection (1) does not apply to a person employed to replace a person who has left the employment of the employer and who
(a) performed the functions of a manager or superintendent,
(b) was employed in a confidential capacity in matters relating to labour relations or personnel, or
(c) the parties have previously agreed is excluded from the bargaining unit.
12 Section 104 is amended by adding the following subsection:
(11) Subject to the approval of the minister, the director may make rules governing the practice and procedures of an arbitration under this section, including, without restriction,
(a) prehearing disclosure respecting the facts on which the parties to an arbitration intend to rely at the hearing, and
(b) the overall time frame in which an arbitrator appointed under this section must conduct and conclude a hearing.
13 Section 141 is amended by adding the following subsection:
(6.1) The board on its own motion may reconsider a decision made by it under this Code.
Pension Benefits Standards Act
14 Section 1 (1) of the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, is amended by adding the following definition:
"early retirement pension" means a pension that
(a) is received before pensionable age as specified in section 38 (1), and
(b) is greater than the minimum pension required by section 38 (8); .
15 Section 74 (2) (g) is repealed and the following substituted:
(g) despite sections 25 to 27, respecting
(i) the benefits and membership of a former member who has begun to receive a pension under a plan and restarts work or service in an employment covered by that plan,
(ii) the suspension of benefits of a former member who has begun to receive an early retirement pension under a multi-employer plan and restarts work or service in British Columbia in a trade or industry covered by that plan but with an employer who is not a participant in that plan, and
(iii) the reinstatement of benefits of a former member referred to in subparagraph (ii); .
Skills Development and Fair Wage Act
16 Section 1 of the Skills Development and Fair Wage Act, R.S.B.C. 1996, c. 427, is amended by adding the following definition:
"penalty" means a monetary penalty imposed under section 11.1; .
17 Section 4 (1) is amended
(a) by striking out everything before paragraph (a) and substituting the following:
(1) Subject to subsection (2), a contractor, subcontractor or any other person doing or contracting to do the whole or any part of the construction to which this Act applies must ensure that his or her employees , and
(b) in paragraph (a) by striking out "be registered" and substituting "are registered".
18 The following sections are added:
11.1 (1) If the director is satisfied that a person has contravened a requirement of this Act or the regulations, the director may impose a penalty on the person in accordance with the prescribed schedule of penalties.
(2) If a corporation contravenes a requirement of this Act or the regulations, an employee, officer, director or agent of the corporation who authorizes, permits or acquiesces in the contravention is also liable to the penalty.
(3) A person on whom a penalty is imposed under this section must pay the penalty whether or not the person
(a) has been convicted of an offence under section 12, or
(b) is also liable to pay a fine for an offence under section 12.
(4) A penalty imposed under this section is a debt due to the government and may be collected in the same manner as fair wages under section 8.
11.2 (1) On making a decision to impose a penalty under section 11.1, the director must serve any person named in the decision with a copy of the decision that includes the following:
(a) the reasons for the decision;
(b) the amount of the penalty imposed;
(c) the nature of the contravention;
(d) the date by which the penalty must be paid;
(e) the time limit and process for appealing the decision under section 11.3.
(2) A decision required to be served on a person under subsection (1) is deemed to have been served if
(a) served on the person, or
(b) sent by registered mail to the person's last known address.
(3) If served by registered mail, the decision is deemed to have been served 8 days after the decision is deposited in a Canada Post Office.
(4) At the request of a person on whom a decision is required to be served under subsection (1), the decision may be transmitted to the person electronically or by fax machine.
(5) A decision transmitted under subsection (4) is deemed to have been served when the director receives an acknowledgment of the transmission from the person served.
11.3 The decision to impose a penalty under section 11.1 may be appealed to the Employment Standards Tribunal in accordance with Part 13 of the Employment Standards Act as if the decision were a determination under that Act.
19 The following section is added at the end of Part 3:
12.1 (1) The director may compile information relating to contraventions of this Act or the regulations, including information identifying the persons who, according to a decision under section 11.1 or an order of the Employment Standards Tribunal, committed the contraventions.
(2) Despite the Freedom of Information and Protection of Privacy Act, the director may
(a) publish information compiled under subsection (1), and
(b) make that information available for public inspection during regular business hours at offices of the Employment Standards Branch.
20 Section 13 is amended
(a) in subsection (2) by adding the following paragraph:
(e.1) prescribing a schedule of penalties for the purposes of section 11.1; , and
(b) by adding the following subsection:
(4) The penalties prescribed under subsection (2) (e.1) may vary according to
(a) the number of employees affected by a contravention of this Act or the regulations, or
(b) the nature or frequency of the contraventions.
21 (1) Subject to subsection (2), this Act comes into force by regulation of the Lieutenant Governor in Council.
(2) Section 5 comes into force on December 1, 1997.
[This Bill amends the Revised Statutes of British Columbia, 1996. The Revised Statutes of British Columbia, 1996 came into force on April 21, 1997.]
Labour Relations Code
SECTION 1: [Labour Relations Code, adds section 14 (4) (b.1)] gives the board the power to waive the requirements of section 55 (1) (b) of the Code to remedy an unfair labour practice.
SECTION 2: [Labour Relations Code, amends section 18 (2)] extends the time frame for displacement of a bargaining agent.
SECTION 3: [Labour Relations Code, adds section 19 (1.1)] provides that with respect to the construction industry, the open period, during which employees may change bargaining agents, will occur during the months of July and August.
SECTION 4: [Labour Relations Code, amends section 21 (1)] allows for a unit of employees to consist of a single person within a "craft unit" for certification purposes, to be consistent with 1993 changes which allowed for certification of an individual employee in other areas.
SECTION 5: [Labour Relations Code, enacts section 35.1] provides for successorship for contracted services in the areas of building cleaning services, food services and security services.
SECTION 6: [Labour Relations Code, amends section 37 (1)] makes changes to the provisions respecting mergers and amalgamations of trade unions.
SECTION 7: [Labour Relations Code, repeals section 40 (2)] deletes the provision dealing with coordinated trade union votes.
SECTION 8: [Labour Relations Code, amends section 45 (1) (b) (i)] extends the statutory freeze on conditions for a newly certified bargaining unit.
SECTION 9: [Labour Relations Code, adds section 55 (9)] provides that certain arbitration provisions apply in the case of an arbitration established under section 55 of the Code.
SECTION 10: [Labour Relations Code, enacts Part 4.1] introduces Part 4.1 into the Code to recognize the unique characteristics of the construction industry and to allow for the establishment of new bargaining structures for subsectors of the unionized industry.
SECTION 11: [Labour Relations Code, amends section 68] amends section 68
(a) to allow an employer who is involved in a labour relations dispute to move management personnel from one location to another location for operational purposes, so long as both of these operations are involved in the same dispute, and
(b) to allow an employer to replace management personnel who retire or quit during an ongoing dispute.
SECTION 12: [Labour Relations Code, adds section 104 (11)] allows the director to make rules respecting arbitrations under section 104 of the Code.
SECTION 13: [Labour Relations Code, adds section 141 (6.1)] allows the board to reconsider a decision on its own motion.
Pension Benefits Standards Act
SECTION 14: [Pension Benefits Standards Act, amends section 1 (1)] adds a definition.
SECTION 15: [Pension Benefits Standards Act, repeals and replaces section 74 (2) (g)] adds a provision to empower the Lieutenant Governor in Council to make regulations that allow a pension plan to suspend benefits received by a pensioner who took an early retirement pension and is subsequently re-employed in the same trade or industry with an employer who is not a participant in that plan.
Skills Development and Fair Wage Act
SECTION 16: [Skills Development and Fair Wage Act, amends section 1] adds definition of "penalty".
SECTION 17: [Skills Development and Fair Wage Act, amends section 4 (1)] clarifies that the duty imposed applies to employers and not to individual employees.
SECTION 18: [Skills Development and Fair Wage Act, enacts sections 11.1, 11.2 and 11.3]
SECTION 19: [Skills Development and Fair Wage Act, enacts section 12.1] permits the Director of Employment Standards to compile and publish information relating to contraventions of the Act or regulations.
SECTION 20: [Skills Development and Fair Wage Act, amends section 13]
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