INFORMATION BULLETIN
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INFORMATION BULLETIN |
The
Labour Relations
Code authorizes the Board to make common employer declarations, often
called "spin-off" declarations.
See: Sections 47, 192.
The Code
contains one provision for the non-construction industry and a second provision
for the construction industry. The construction industry provision has some
distinct features that apply only to that industry.
This
Information Bulletin sets out the requirements for filing such an application.
It also outlines the procedures the Board will use when processing
applications.
Parts I and
II of this bulletin apply to both the construction and non-construction
industries. Part III applies only to construction.
Trade
unions or employers seeking a declaration must submit an application to the
Board. Parties can apply by letter which must include:
·
the name, address and telephone number of the
applicant;
·
the name and phone number of a contact person
of the applicant;
·
the names, addresses and telephone numbers of
all associated or related corporations, partnerships or persons involved in the
application as far as that information is available;
·
details of any relationships existing or
alleged to exist between the trade union and one or more of the corporations,
partnership or persons involved in the application. Include any certificate numbers and
details of any collective agreements;
·
details of the activities, business or
undertakings involved. Describe the role of each corporation, partnership or
person named in the application in these activities. Identify specific projects
and describe when the work occurred. Include information about equipment use and
ownership, supervision of employees, and job locations. Also, include
information on payroll arrangements and the payment of wages and
benefits;
·
any other facts supporting the allegation of
common control or direction. These should include, where appropriate, corporate
records from public registries;
·
a statement of whether the applicant is
alleging avoidance of a collective bargaining relationship, and the reasons in
support of that allegation;
·
any other supporting information that the
applicant wishes to rely upon; and
·
any reasons important for labour relations
purposes and the administration of the Code for the Board to grant the
declaration.
·
a statement in a form prescribed by the Board,
confirming the application has been served in a manner approved by the Board, on
any parties known to be affected by the proceeding or subsequently added by the
Board.
See: Rules of
Procedure, Rules 5.1, 6; Bulletin
2.
The
application, in its entirety, must set out allegations of fact which may result
in a declaration. It need not prove the case, but must set out enough details to
show genuine grounds for the application. The information must be enough to
advise the respondent of the matters in dispute. See:
U.A. Local 488
v. Vikon Technical Services [1985] Alta.L.R.B. 85-073.
The
Director of Settlement reviews all applications for completeness. The Director
may refuse to process any application lacking sufficient information. In that
event, the Director asks the applicant to provide further particulars or
refers it to panel with a recommendation to dismiss it. See: Bulletin
2.
The
applicant must serve a copy of the filed application on the employer and any
other affected persons. Once served, the applicant must provide proof of the
service to the Board on the form provided. The Board will direct how the
employees will be notified, usually by posting of a notice at the worksite.
A
respondent must file and serve a reply to the application unless the Director of
Settlement waives the requirement. A reply must admit the facts that are not in
dispute and state any different version of the facts that is relied on. See:
Rules of
Procedure, Rule 8.
No
Objections
If no one
contests the application, the Director of Settlement forwards it to a Board
panel for review. The panel may
issue a declaration without conducting a hearing.
Objections
If a party
contests the application, the Director of Settlement will decide whether to
recommend the matter go directly to hearing or whether pre-hearing procedures
are required.
The
Director may direct an Officer to attempt to settle the matter or conduct an
investigation into some or all of the matters that remain in dispute. An
investigation may be appropriate where, following the application and
reply, it is necessary to more fully define the facts and issues in
dispute. See: Rules of
Procedure, Rule 22(1)(g); Bulletin
3.
After the
investigation, the officer issues a report. The report outlines the facts in
dispute. It does not include any recommendations.
If
pre-hearing procedures fail to resolve the matter, the Director of Settlement
schedules a hearing.
Board
Hearing
Where the
application proceeds to hearing, the applicant must establish the four statutory
conditions in section 47(1). They are that:
·
the applicant is an affected employer or trade
union;
·
the activities are associated or
related;
·
there is common control or direction;
and
·
there is more than one
entity.
The Board
must then decide whether these activities are carried on in order to avoid a
collective bargaining relationship.
If they are, the Board:
·
must issue a common employer
declaration;
·
may give a remedy effective retroactively, but
only as far back as the date of the application.
See: Sections 47(2), 192(2); Labourers 1111 v.
Sie-Mac [1991] Alta. L.R.B.R. 847; Carpenters Locals v.
Urban Scaffolding [1997] Alta. L.R.B.R. 516.
If the
Board does not find avoidance, then it must decide, based on the circumstances,
whether to issue a common employer declaration, which would not be
retroactive.
The general
provisions outlined above also apply to common employer declarations in the
construction industry.
However,
there is one additional provision, limiting the Board's discretion, that only
applies to parties in the construction industry:
Non-employers
Section
192(3) prevents the Board making a common employer declaration involving
a corporation, partnership, person or association of persons in the construction
industry that does not employ employees who perform work of the kind performed
by members of the applicant trade union. In UA 488 v. Midwest Pipeline Contractors Ltd. et
al. [1990]
Alta.L.R.B.R. 579 the Board set out the way it applies section
192.
This process involves:
Step 1 - Review the 4 statutory requirements which
are the same as under section 47(1).
Step 2 - If the 4 requirements are met, then
decide if there is evidence of activities to avoid a collective
bargaining relationship.
Step 3 - If the applicant is a trade union, examine
whether the related corporate entity employs employees doing work of the kind
performed by members of the trade union. If not, refuse the application.
Step 4 - If there is proof of avoidance under Step 2,
make a declaration as required by section 192(2) and consider the appropriate
relief and the effective date (retroactivity) of the
order.
Step 5 - If there is insufficient proof of
avoidance under Step 2, but the other requirements are met, decide whether to
exercise the discretion, under section 192(1), to grant a declaration.
See also:
Information Bulletins 2, 3 and
4
Rules of Procedure
For further information or answers to any questions regarding this or any other Information Bulletin please contact:
Director of Settlement
Labour Relations Board
501, 10808 99 Avenue
Telephone: (780)
422-5926
Manager of Settlement
Labour Relations Board
308, 1212 31 Avenue NE
Telephone: (403)
297-4334
Email: alrbinfo@gov.ab.ca
Website: alrb.gov.ab.ca