Duties under the Code
Section
2 imposes a number of duties on the Board and other persons who exercise powers and
perform duties under the Code, such as arbitrators. These duties reflect the general
intention of the legislation and include:
·
Recognizing
the rights and obligations of employees, employers and trade unions under the Code;
·
Fostering
the employment of workers in economically viable businesses;
·
Encouraging
the practice and procedures of collective bargaining between employers and trade unions as
the freely chosen representatives of employees;
·
Encouraging
co-operative participation between employers and trade unions in resolving workplace
issues, adapting to changes in the economy, developing workforce skills and developing a
workforce and a workplace that promotes productivity;
·
Promoting
conditions favourable to the orderly, constructive and expeditious settlement of disputes;
·
Minimizing
the effects of labour disputes on persons who are not involved in those disputes;
·
Ensuring
that the public interest is protected during labour disputes; and,
·
Encouraging
the use of mediation as a dispute resolution mechanism.
Structure and
composition
The
Labour Relations Board consists of the chair, a number of vice-chairs and an equal number
of part-time representatives of both employers and unions who are called members.
The chair, vice-chairs and members are all appointed by the Lieutenant Governor in Council
(i.e., the provincial Cabinet) for specific terms of office.
The
Board has two divisions, the Adjudication Division and the Mediation Division. The chair
may appoint one or more vice-chairs as associate chairs to head either or both
divisions. The chair may also designate another vice-chair as registrar of the
Board. Applications and complaints to the Board are addressed to the registrar,
except requests for mediation, which are addressed to the associate chair,
mediation. The Board also has a designated information officer whose job is to
provide information on the Code and its application to labour relations in British
Columbia.
The
Adjudication Division investigates and resolves complaints and applications under the
Code, generally by conducting a hearing or by requesting written submissions through which
all parties affected by the complaint or dispute may present their case. The
adjudication panel makes a decision binding on the parties. It can order a
particular remedy such as directing a party to do (or to refrain from doing) a certain act
or to make a monetary payment.
When
a panel is appointed by the chair of the Board to hear a case it usually consists of the
chair or a vice-chair, one representative (member) from the employer community and one
from the trade union community. A panel may also consist of:
·
The chair or a vice-chair
sitting alone;
·
The chair or a vice-chair
plus two or more vice chairs (or members); or,
·
Three or more vice-chairs
(with or without members).
The
Mediation Division provides assistance to employers and unions in collective bargaining or
in improving their ongoing relationships.
Jurisdiction
The
Board is the decision-maker on any question that arises under the Code and can internally
reconsider its own decisions in certain circumstances. Some of the matters the Board
has jurisdiction to decide are listed in Section 139 of the Code. These include
questions concerning whether:
·
A person is an employer or
an employee;
·
An organization is a union;
·
A collective agreement has
been entered into;
·
A group of employees is a
unit appropriate for collective bargaining;
·
A person is a member in good
standing of a union;
·
A person is included in or
excluded from a bargaining unit; and,
·
An activity constitutes a
strike, lockout or picketing.
This
is not a complete list of the powers exercised by the Board, but it shows that the
Legislature has given the Board the power to decide the vast majority of matters that can
arise in labour relations. The courts retain their jurisdiction to review decisions
of the Board under the Judicial Review Procedure Act. Questions about
administrative fairness of the Board can be brought to the attention of the Office of the
Ombudsman. In most cases all avenues of internal appeal should be exhausted prior to
an issue going to the courts or the Office of the Ombudsman.
Powers of the Board
In
order for the Board to conduct an effective investigation into complaints under the Code,
it has been granted a number of powers by the Legislature. The general powers of the
Board have been set out in Section 140 of the Code and include the following:
·
To
summon witnesses and compel them to give evidence under oath and produce any documents the
Board considers necessary;
·
To enter any workplace during working hours to inspect those
premises and question any person
regarding them;
·
To order
votes to be conducted to determine the wishes of employees or employers in relation to
proceedings under the Code;
·
To
delegate the task of investigation to any person;
·
To add
parties to proceedings at any stage of the proceedings; and
·
To
shorten or extend the time for instituting any proceeding under the Code. (Note: care
should be taken to comply with the time limits established by the Labour Relations Board
Rules.)
The
Board frequently delegates the task of investigation to an Industrial Relations Officer
from the Ministry of Labour and Citizens' Services, who then files a report of his
or her findings with the Board. The information within these reports is provided to
the involved parties unless it relates to an individual's union membership status.
The Board also gives all parties full opportunity to present evidence and make submissions
on a matter before it.
Remedial authority
The
Board has a wide range of remedies available to it. In most cases, the source of the
Board's authority to grant a remedy is either Section 14 or Section 133 of the Code.
If the Board finds that the Code has been violated, it can order the person violating the
Code to, among other things:
·
Refrain
from continuing the breach of the Code (this order is generally referred to as a cease and
desist order); and
·
Rectify
the contravention of the Code by the payment of money or perhaps reinstatement of an
employee who has been discharged in violation of the Code.
The
Board may also:
·
Determine
the value of an injury or loss resulting from a violation of the Code and order the
violator to pay that money; and,
·
Make any
other order it considers appropriate.
The
Board also has the discretion to refuse to make an order if it feels it is proper to do
so.
A
refusal to carry out an order made by the Board under the Code may result in that order
being filed in the Supreme Court of British Columbia. Once the order is filed it has
the same force and is enforceable in the same manner as an order of the Supreme Court.
Filing an application or complaint
The
Labour Relations Board Rules require that every proceeding before the Board be commenced
by the filing of an application or complaint in writing. This application or
complaint should outline the nature of the case and the remedy that is being requested
from the Board. In some instances, the Rules specify the form to be used when filing
an application or complaint. These forms are available at the Board's offices or
from any Employment Standards Branch office of the Ministry of Labour and Citizens'
Services.
Once
an application or complaint is received, the Board will make sure all parties affected are
notified and invited to make submissions. The time limits within which submissions
must be received are set out in the Labour Relations Board Rules.
Depending
on the nature of the specific application, the Board may appoint an Industrial Relations
Officer to investigate the application or complaint. Once the officer has completed
the investigation, a detailed report is filed with the Board. These reports are made
available to involved parties unless they contain information about whether or not a
person is a member of a union. Such information is confidential.
Since
the Board may make its decision on the basis of the submissions of the parties and the
officer's report, that report is a valuable tool in the Board's decision-making
process. For that reason, the cooperation of the parties in providing the officer
with all relevant information is of great assistance to the Board in the resolution of
disputes.
Do all applications made to the Board require a hearing?
No. The nature of the application and
evidence will determine if an oral hearing is needed. If the
Board feels an oral hearing is necessary, it will notify all
concerned parties of the time and place for the hearing.
Hearings are usually
held at the Board's offices in Vancouver but, a hearing can also be
held at some other location closer to the matter under
consideration. If someone who has been given notice of the
hearing fails to attend, the Board may proceed with the hearing in
the absence of that person.
Is a Board hearing like a trial?
Board hearings are less formal
than court trials. The Board may be able to assist the parties
to reach an agreement between themselves during the hearing process
without requiring a Board ruling. Parties involved in a hearing can
use a lawyer or they can represent themselves. Evidence is
given under oath (or affirmation) and witnesses may be
cross-examined. The Board is not strictly bound by the formal
rules of evidence that apply in court
Applications
to the Board frequently result in the parties reaching a voluntary settlement. In fact,
the Board attempts to assist the parties in settling their own disputes rather than having
the Board determine the matter.
Once
the Board has made a decision, it may inform the parties of its decision by letter, and
may also provide them with a formal written decision containing detailed reasons for its
ruling.
Reconsideration of decisions
If
a party to a decision believes that the Board is mistaken, it can request the Board to
grant leave to reconsider its decision. The grounds on which a reconsideration will be
granted are fairly narrow and decisions will not be reconsidered more than once. One
of the purposes of a reconsideration is to ensure that different Board panels properly
interpret the Labour Relations Code and consistently apply the principles developed
by the Board. An application for leave to apply for reconsideration must be made
within 15 calendar days of the publication of the original reasons and must set out the
grounds for making the application.
Role of the Minister of Labour and
Citizens' Services
The
Minister of Labour and Citizens' Services has an important role under the Labour
Relations Code.For example, the Minister has the authority to:
·
Direct
the Board to consider whether a council of unions would be an appropriate bargaining agent
for the purposes of bargaining with an employer or an employers' organization;
·
Direct
the Board to designate servicesas essential which means that the employer is required to
provide those services and the union is required to allow its members to provide those
services in the event of a strike or lockout;
·
Make
appointments of mediators, industrial inquiry commissions, and/or special officers to
assist parties in resolving their labour relations disputes; and,
·
Order a vote on the final offer received from the other party
during a strike or lockout
