Definition
73.2  (1) In this section, “specified replacement worker” means a person who is described in subsection 73.1 (5) or (6) as one who must not be used to perform the work described in paragraphs 2 and 3 of subsection 73.1(5). Permitted use of specified replacement workers (2) Despite section 73.1, specified replacement workers may be used in the circumstances described in this section to perform the work of employees in the bargaining unit that is on strike or is locked out but only to the extent necessary to enable the employer to provide the following services: 1. Secure custody, open custody or the temporary detention of persons under a law of Canada or of the Province of Ontario or under a court order or warrant. 2. Residential care for persons with behavioural or emotional problems or with a physical, mental or developmental handicap. 3. Residential care for children who are in need of protection as described in subsection 37(2) of the Child and Family Services Act. 4. Services provided to persons described in paragraph 2 or 3 to assist them to live outside a residential care facility. 5. Emergency shelter or crisis intervention services to persons described in paragraph 2 or 3. 6. Emergency shelter or crisis intervention services to victims of violence. 7. Emergency services relating to the investigation of allegations that a child may be in need of protection as described in subsection 37(2) of the Child and Family Services Act. 8. Emergency dispatch communication services, ambulance services or a first aid clinic or station. Idem (3) Despite section 73.1, specified replacement workers may also be used in the circumstances described in this section to perform the work of employees in the bargaining unit that is on strike or is locked out but only to the extent necessary to enable the employer to prevent, (a) danger to life, health or safety; (b) the destruction or serious deterioration of machinery, equipment or premises; or (c) serious environmental damage. Notice to trade union (4) An employer shall notify the trade union if the employer wishes to use the services of specified replacement workers to perform the work described in subsection (2) or (3) and shall give particulars of the type of work, level of service and number of specified replacement workers the employer wishes to use. Time for giving notice (5) The employer may notify the trade union at any time during bargaining but, in any event, shall do so promptly after a conciliation officer is appointed. Idem, emergency (6) In an emergency or in circumstances which could not reasonably have been foreseen, the employer shall notify the trade union as soon as possible after determining that he, she or it wishes to use the services of specified replacement workers. Consent (7) After receiving the employer’s notice, the trade union may consent to the use of bargaining unit employees instead of specified replacement workers to perform some or all of the proposed work and shall promptly notify the employer as to whether it gives its consent. Use of bargaining unit employees (8) The employer shall use bargaining unit employees to perform the proposed work to the extent that the trade union has given its consent and if the employees are willing and able to do so. Working conditions (9) Unless the parties agree otherwise, the terms and conditions of employment and any rights, privileges or duties of the employer, the trade union or the employees in effect before it became lawful for the trade union to strike or the employer to lock out continue to apply with respect to bargaining unit employees who perform work under subsection (8) while they perform the work. Priority re replacement workers (10) No employer, employers’ organization or person acting on behalf of either shall use a specified replacement worker to perform the work described in subsection (2) or (3) unless, (a) the employer has notified the trade union that he, she or it wishes to do so; (b) the employer has given the trade union reasonable opportunity to consent to the use of bargaining unit employees instead of the specified replacement worker to perform the proposed work; and (c) the trade union has not given its consent to the use of bargaining unit employees. Exception re emergency (11) In an emergency, the employer may use a specified replacement worker to perform the work described in subsection (2) or (3) for the period of time required to give notice to the trade union and determine whether the trade union gives its consent to the use of bargaining unit employees. Application for directions (12) On application by the employer or trade union, the Board may, (a) determine, during a strike or a lock-out, whether the circumstances described in subsection (2) or (3) exist and determine the manner and extent to which the employer may use specified replacement workers to perform the work described in those subsections; (b) determine whether the circumstances described in subsection (2) or (3) would exist if a strike or lock-out were to occur and determine the manner and extent to which the employer may use specified replacement workers to perform the work described in those subsections; (c) give such other directions as the Board considers appropriate. Reconsideration (13) On a further application by either party, the Board may modify any determination or direction in view of a change in circumstances. Idem (14) The Board may defer considering an application under subsection (12) or (13) until such time as it considers appropriate. Burden of proof (15) In an application or a complaint relating to this section, the burden of proof that the circumstances described in subsection (2) or (3) exist lies upon the party alleging that they do. Agreement re specified replacement workers (16) The employer and the trade union may enter into an agreement governing the use, in the event of a strike or lock-out, of striking or locked-out employees and of specified replacement workers to perform the work described in subsection (2) or (3). Formal requirements (17) An agreement under subsection (16) must be in writing and must be signed by the parties or their representatives. Idem (18) An agreement under subsection (16) may provide that any of subsections (4) to (11) do not apply. Term of agreement (19) An agreement under subsection (16) expires not later than the earlier of, (a) the end of the first strike described in subsection 73.1 (2) or lock-out that ends after the parties have entered into the agreement; or (b) the day on which the parties next make or renew a collective agreement. Prohibited circumstances (20) The parties shall not, as a condition of ending a strike or lock-out, enter into an agreement governing the use of specified replacement workers or of bargaining unit employees in any future strike or lock-out. Any such agreement is void. Enforcement (21) On application by the employer or trade union, the Board may enforce an agreement under subsection (16) and may amend it and make such other orders as it considers appropriate in the circumstances. Filing in court (22) A party to a decision of the Board made under this section may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such. 1992, c.21, s.32, part.