Enforcement where collective agreement
64.5(1) If an employer enters into a collective agreement, the Act is enforceable against the employer with respect to the following matters as if it were part of the collective agreement: 1. A contravention of or failure to comply with the Act that occurs when the collective agreement is in force. 2. A contravention of or failure to comply with the Act that occurs while the operation of the collective agreement is continued as described in subsection 58 (2) of the Labour Relations Act, 1995. 3. A contravention of or failure to comply with the Act that occurs during the period described in subsection 86 (1) of the Labour Relations Act, 1995 during which the employer and the trade union are prohibited from changing terms and conditions of employment without each other’s consent. Complaint not permitted (2) An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is not entitled to file or maintain a complaint under the Act. Exception (3) Despite subsection (2), the Director may permit an employee to file or maintain a complaint under the Act if the Director considers it appropriate in the circumstances. Employee bound (4) An employee to whom a collective agreement applies (including an employee who is not a member of the trade union) is bound by a decision of the trade union with respect to the enforcement of the Act under the collective agreement, including a decision not to seek the enforcement of the Act. 1996, c. 23, s. 18. Same (5) Subsection (4) does not prevent an employee from making a complaint to the Board that a decision of the trade union with respect to the enforcement of this Act contravenes section 74 of the Labour Relations Act, 1995. 1996, c. 23, s. 18; 1998, c. 8, s. 35 (1). Powers of arbitrator (6) An arbitrator, a board of arbitration or the Board acting under section 133 of the Labour Relations Act, 1995 may make the following orders when determining a grievance alleging a contravention of this Act or failure to comply with it: 1. Any order that an employment standards officer is authorized to make under subsection 13.1 (14) or section 45, 48, 51, 56.2, 58.22, 58.23 or 65. 2. An order that the Board is authorized to make under subsection 69 (2) or 70 (2). However, an order under this paragraph may be made only if the grievance alleges that subsection 33 (2) has been contravened or that an act, agreement, arrangement or scheme is intended to defeat or defeats the true intent and purpose of this Act either directly or indirectly. 1996, c. 23, s. 18; 1998, c. 8, s. 35 (2-4). Same, directors of employer (7) If a director of the employer to whom the collective agreement applies is liable under Part XIV.2 for wages owing under the agreement, an order authorized by subsection (6) may be made against the director. However, no order may be made against a director unless he or she has been given reasonable notice of the arbitration proceedings and an opportunity to participate in them. Restriction re directors (8) An order shall not require a director to pay an amount or take or refrain from taking an action under the collective agreement that the director could not be ordered to pay, take or refrain from taking under the Act in the absence of the collective agreement. Same (9) An order authorized by subsection (6) may be made for an amount greater than is permitted under subsection 65 (1.3) or less than is permitted under subsection 65 (1.5). Exception (10) An order authorized by subsection (6) must not require that payment be made to the Director in trust. 1996, c. 23, s. 18. No review (11) An order or a refusal to issue an order authorized by subsection (6) is not subject to review under section 68. 1998, c. 8, s. 35 (5). Notice to Director (12) The arbitrator, board of arbitration or Ontario Labour Relations Board shall give a copy of his, her or its decision to the Director. Service on directors of employer (13) Subsections 58.26 (2) and (3) do not apply with respect to the service of an order on a director of the employer. 1996, c. 23, s. 18. Status of order (14) An order authorized by subsection (6) shall be deemed, for the purposes of section 58.2, to have been made by an employment standards officer. 1997, c. 21, s. 3 (5). Non-application (15) This section does not apply with respect to a complaint relating to a contravention of the Act or a failure to comply with the Act that occurs before the day on which section 20 of the Employment Standards Improvement Act, 1996 comes into force. 1996, c. 23, s. 18.