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Special thanks to our articling student Viesakan Sivaraj for contributing to this update.

1. Negotiating a First Collective Agreement in Ontario

Once a union is certified, the employer must immediately turn their attention to negotiating a first collective agreement. The Ontario Labour Relations Act, 1995, (the “Act”) prescribes the timelines and rules for negotiating a collective agreement. Understanding these rules can assist employers with navigating negotiations and ensuring compliance with the Act during bargaining.

General Guidelines

Once a union is certified or voluntarily recognized, it must give written notice to the employer to begin bargaining for a collective agreement (Section 16). The employer and union must meet within 15 days of receiving notice, unless they agree otherwise, and bargain in good faith, making every reasonable effort to reach an agreement (Section 17). Either party may request that the Minister of Labour appoint a conciliation officer to help resolve differences and assist both sides in reaching an agreement (Section 18). Any agreement reached must be ratified by a vote of the bargaining unit employees, with limited exceptions, such as in the construction industry.

The agreement must be filed with the Ontario Ministry of Labour, Immigration, Training and Skills Development and all collective agreements that are filed with the Ministry are published on the Ontario government’s Collective Agreements e-Library Portal website. If the union fails to give notice to bargain within 60 days of certification or fails to start bargaining, the Ontario Labour Relations Board (the “Board”) may terminate its bargaining rights (Section 65), though this is extremely rare. Generally, once a union is certified, they are here to stay.

Key Timelines

There is no fixed deadline for finalizing the first agreement, but the Act provides mechanisms to address delays, impasse, or bad faith bargaining. Under section 43(1) of the Act, where the parties are unable to reach a first collective agreement and either a conciliation board will not be appointed or the conciliation board report has been released, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration.

The Board must issue a decision on whether to arbitrate within 30 days of receiving the application. Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board must appoint a date for and commence a hearing within 21 days of receiving notice and must determine all matters in dispute and release a decision within 45 days of the commencement of the hearing.

A first collective agreement settled under Section 43 of the Act is effective for 2 years from the date of settlement. If no agreement is reached within one year of certification, employees may apply to decertify the union (Section 63), though again, this is rare.

Options When Negotiations Stall

  • Conciliation – At any time, either party may request the Minister to appoint a conciliation officer. Most parties must go through conciliation before a strike, lockout, or interest arbitration.
  • If conciliation fails, the Minister may issue a “No Board Report”, which is notice to the parties that a board of conciliation will not be appointed. Release of a No Board Report begins the countdown to the date on which either the employer or the union could begin a legal work stoppage.
  • Other settlement options include the employer initiating a last-offer vote, the parties voluntarily entering into mediation, and the parties voluntarily agreeing to interest arbitration.
  • Either party may apply to the Board for first agreement arbitration. The Board will direct arbitration if it finds that bargaining has failed due to:
    • The Employer’s refusal to recognize the union’s authority;
    • Uncompromising bargaining positions without sufficient justification;
    • Failure to make reasonable efforts to conclude an agreement; or
    • Any other relevant reason.

Key Takeaways for Employers

  • Respond quickly to union certification and bargaining notices – statutory timelines are strict.
  • Maintain an open channel of communication with the union, negotiate in good faith, and document your efforts to reach an agreement.
  • Consult with legal counsel to understand your options and any remedies that may be available.

2. Negotiating a Renewal Collective Agreement in Ontario

The Act outlines the process, timelines, and procedural options available when negotiating a renewal agreement. Understanding these rules can help employers manage negotiations effectively and navigate disputes.

Under Section 59 of the Act, either party to a collective agreement may give written notice to bargain for a renewal agreement. This notice must be given within 90 days of the agreement expiring, or during any other period specified in the agreement. Once notice is given, both parties must meet within 15 days, unless they agree otherwise, and bargain in good faith, making every reasonable effort to reach a new agreement.

A notice to bargain may be followed by requests for information. Employers should carefully review union requests and focus on understanding the underlying issues, not just the union’s proposals. Asking clarifying questions can help identify solutions that work for both sides. Under Section 58 of the Act, the parties may agree to continue the operation of the collective agreement or any of its provisions for a period of less than one year while bargaining for a renewal agreement. Once a renewal agreement is reached, it must be filed with the Ministry.

If a “No Board Report” is issued by the Minister, 16 days must pass before a legal strike or lockout can occur. If a Conciliation Board Report is issued, 9 days must pass.

Key Takeaways for Employers

  • Track agreement expiry dates and be prepared to move quickly after the union files its notice to bargain.
  • Meet statutory deadlines and make every reasonable effort to reach a renewal agreement.
  • Consult legal counsel if negotiations stall or if you face complex bargaining issues.

3. Interest Arbitration in Ontario Labour Relations

Interest arbitration is a key process for resolving collective bargaining disputes when negotiations reach an impasse. For employers, understanding when and how interest arbitration applies and what it means for workplace operations is essential. Interest arbitration is when a neutral third party (an arbitrator or arbitration board) hears arguments from both the employer and the union about unresolved bargaining issues and then makes a binding decision.

  • Mandatory Interest Arbitration: Required to achieve collective agreements for sectors where strikes or lockouts are not permitted by law, such as hospitals, firefighters, police, and correctional officers.
  • Voluntary Interest Arbitration: In sectors where strikes or lockouts are allowed, both parties can agree to interest arbitration instead of a work stoppage.

Interest Arbitration Before the Ontario Labour Relations Board

  • Voluntary Arbitration: For a first collective agreement, if negotiations fail or stall, either party may apply to the Board for interest arbitration. The Board may order arbitration if there is a bargaining impasse, bad faith bargaining, or other qualifying reasons (Section 43). Additionally, under Section 40 of the Act, the parties can voluntarily agree to refer outstanding issues to an arbitrator or board of arbitration.
  • Mandatory Arbitration: If parties are unable or have limited ability to strike or lock out under the Act, the release of a No Board Report enables them to proceed to interest arbitration.

No Strikes or Lockouts during Interest Arbitration

Under Section 43(14) of the Act, strikes and lockouts are prohibited once the Board orders arbitration for a first collective agreement. If a strike or lockout is already in progress, it must end immediately, and employees must be reinstated. Under Section 43(16), existing terms and conditions of employment, including wage rates, must remain in place and unaltered until the arbitration concludes. Employees must continue working while arbitration is underway.

Key Takeaways for Employers

  • Know when arbitration is mandatory: Sectors without the right to strike or lock out must use interest arbitration to resolve disputes.
  • Understand your options: Voluntary interest arbitration can be a practical alternative to a work stoppage.
  • Be prepared for Board intervention: The Board can order interest arbitration in certain circumstances.
  • Maintain operations: Employees must continue working during interest arbitration and strikes or lockouts are prohibited.

4. Government “Back-to-Work” Powers After Strikes

Strikes can significantly impact business operations. While employees have the right to strike, there are circumstances where the federal or provincial government can intervene and order employees back to work. These powers are governed by specific statutory provisions.

When Can Governments “Force” Employees Back to Work?

For federally regulated employers, sections 87.4(6) and 107 of the Canada Labour Code deal with the powers of the Canada Industrial Relations Board and Minister of Labour:

  • Section 87.4(6) allows the Canada Industrial Relations Board to require certain business activities to continue during a strike to protect public safety or health.
  • Section 107 gives the federal Minister of Labour broad powers to maintain or secure industrial peace and promote conditions favourable to settling industrial disputes. The Minister may refer any question to the Canada Industrial Relations Board or direct the Board to take necessary actions. However, this section does not directly compel employees to return to work; instead, it enables the Minister to take steps to resolve disputes, which may include recommending or facilitating back-to-work orders.

In Syndicat des débardeurs du port de Québec (Syndicat canadien de la fonction publique, section locale 2614) c. Canada (Procureur général) 2024 FC 2043, the Federal Court of Canada reviewed a Ministerial Order under s. 107 of the Canada Labour Code, which required employees to resume work and submit to binding arbitration after a 26-month lockout. The union argued that the Order was unconstitutional and violated section 2(d) of the Charter with respect to their right to freedom of association, and sought a stay of the Order until the Federal Court rendered its final judgement on the application for judicial review.

The Court dismissed the union’s motion to stay. The Court found that the Order did not prevent bargaining for a collective agreement or presenting arguments in arbitration. Bald allegations of unconstitutionality and Charter violations are insufficient to establish irreparable harm. The Court emphasized that protecting the public interest can justify government intervention, and temporary loss of the right to strike does not automatically amount to irreparable harm.