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Statutes of Newfoundland 2000


Statutes of Newfoundland 2000 Chapter 4

CHAPTER 4

AN ACT TO AMEND THE FISHING INDUSTRY COLLECTIVE BARGAINING ACT

(Assented to May 12, 2000)

Analysis

1. General Amdt.

2. S.2 Amdt.
Definitions

3. S.2.1 Added
Application of certain provisions

4. S.8 R&S
Application for certification

5. S.13 Amdt.
Revocation of certification

6. Ss.13.1 to 13.7 R&S
13.1 Accreditation as
bargaining agent
13.2 Membership in
accredited processorsí
organization
13.3 Expedited
accreditation process
13.4 Prerequisites of
accreditation
13.5 Results of accreditation
13.6 Binding effect
13.7 Revocation
13.8 Result of revocation
13.9 Certain agreements
void

7. S.18 Amdt.
Bargaining committee

8. S.19 Amdt.
Representation of operators

9. S.23 Amdt.
Duration of agreement

10. Ss.35.1 to 35.12 R&S
35.1 Definitions
35.2 Notice of and
schedule for
negotiations
35.3 Committee and
facilitator
35.4 Arbitrator
35.5 Default
35.6 Agreements not to be
altered
35.7 Arbitration
35.8 Memorandum of
Understanding
35.9 Agreement or
decision binding
35.10 Precedence
35.11 Prohibition
35.12 Opting out
35.13 Suspension of
certain provisions

11. S.42 Amdt.
Prosecution

12. S.44 Amdt.
Proceedings under this Act

13. S.49.1 Added
Regulations

14. Commencement

Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:


RSN1990 cF-18
as amended

1. The Fishing Industry Collective Bargaining Act is amended by deleting the words "operator", "an operator", "operators", "operatorsí", "an operatorsí", "operatorís" and "an operatorís" wherever they appear and substituting instead the words "processor", "a processor", "processors", "processorsí", "a processorsí", "processorís" and "a processorís" respectively where appropriate.

 

2. (1) Paragraph 2(1)(a) of the Act is amended by deleting the number "1" and by substituting the word "one".

(2) Paragraph 2(1)(e) of the Act is repealed and the following substituted:

(e) "collective agreement" means an agreement in writing between a processor or a processors' organization acting on behalf of a processor and a bargaining agent for fishers acting on behalf of the fishers containing terms or conditions of the relationship of the processor to the fishers, including provisions with reference to rates of pay for fish supplied to a processor by the fishers concerned, and includes a decision made by an arbitrator;

(3) Paragraph 2(1)(j) of the Act is amended by deleting the number "1" and substituting the word "one".

(4) Subsection 2(1) of the Act is amended by adding immediately after paragraph (m) the following:

(m.1) "Memorandum of Understanding" means a Memorandum of Understanding negotiated by the parties under section 35.8 and subject to this Act, and includes

(i) the guidelines for arbitrations, and

(ii) the processes for arbitrations;

(5) Paragraph 2(1)(n) of the Act is repealed and the following substituted:

(n) "minister" means the minister appointed under the Executive Council Act to administer this Act;

(6) Paragraph 2(1)(p) of the Act is repealed.

(7) Paragraph 2(1)(q) of the Act is amended by deleting the period at the end of that paragraph and substituting a semicolon and the word "and" and by adding immediately after that paragraph the following:

(r) "processor" means a person licensed under the Fish Inspection Act to process or buy fish; and

(s) "processors' organization" means an organization of processors formed for purposes including the regulation of relations between processors and fishers.

(8) Subsection 2(3) of the Act is amended by deleting the number "1" and substituting the word "one".

 

3. The Act is amended by adding immediately after section 2 the following:

Application of certain provisions

2.1 Sections 13.1 to 13.9 and 35.1 to 35.13 apply only where fishers are represented by a certified bargaining agent.

 

4. Section 8 of the Act is repealed and the following substituted:

Application for certification

8. (1) An association claiming to have as members in good standing a majority of fishers supplying fish to one or more processors in a unit that is appropriate for collective bargaining may, subject to the rules of the board and in accordance with this section, make an application to the board to be certified as bargaining agent for fishers in the unit.

(2) An application under subsection (1) may only be made between September 1 and October 31 inclusive in the time period established in section 35.12.

(3) Notwithstanding subsection (2), where a collective agreement is not in force and an accredited bargaining agent has not been certified under this Act for the unit, the application may be made at any time.

(4) Two or more associations claiming to have as members in good standing of the associations a majority of fishers in a unit that is appropriate for collective bargaining may join in an application under this section and the provisions of this Act relating to an application by one association and all matters or things arising from that application shall apply with respect to the application and the associations as if it were an application by one association.

 

5. Subsection 13(2) of the Act is repealed and the following substituted:

(2) An application under subsection (1) may only be made between September 1 and October 31 inclusive in the time period established in section 35.12.

 

6. Sections 13.1 to 13.7 of the Act are repealed and the following substituted:

Accreditation as bargaining agent

13.1 (1) Subject to the rules of the board, a processorsí organization whose members produce the majority percentage of fish by finished product weight, based on the previous calendar yearís production, may apply to the board to be accredited as the sole collective bargaining agent for all processors in the province.

(2) The processorsí organization whose members produce the majority percentage of fish by finished product weight referred to in subsection (1) shall be determined on the basis of records submitted by processors to the Department of Fisheries and Aquaculture under the requirements of the Fish Inspection Act and the regulations made under that Act and the Fisheries Act in the context of obtaining licence renewal and reporting production for the calendar year previous to the application.

Membership in accredited processorsí organization

13.2 An accredited processorsí organization

(a) shall offer membership to processors on terms that are no less favourable than the terms offered to existing members; and

(b) shall not deny membership to a processor for whom it is the bargaining agent for a reason other than refusal or failure to pay the periodic dues, assessments and initiation fees ordinarily required to be paid by all members of the processorsí organization as a condition of acquiring or retaining membership in the organization.

Expedited accreditation process

13.3 (1) Where an application is made to the board under section 13.1, the board shall, within 5 business days of the making of that application, notify all processors who are required to submit records to the Department of Fisheries and Aquaculture under the Fish Inspection Act and the regulations under that Act and the Fisheries Act in the context of obtaining licence renewal and reporting production of the receipt of that application for accreditation.

(2) A processor who has received notice under subsection (1) may, within 10 business days of receiving that notice, make representations to the board with respect to whether the applicant produces the majority percentage of fish by finished product weight based on the previous calendar yearís production, and subject to the merits of those representations, the board may, in its discretion, hold a hearing with respect to that application for accreditation.

(3) Where an application is made under section 13.1 and the board has fulfilled the requirements of subsections (1) and (2) of this section, and is satisfied that the processorsí organization produces the majority percentage of fish by finished product weight based on the previous calendar yearís production as determined on the basis of records referred to in subsection 13.1(2), the board shall accredit the applicant.

Prerequisites of accreditation

13.4 (1) Before the board accredits a processorsí organization, the board shall satisfy itself that

(a) the processorsí organization is a properly constituted organization controlled by its members; and

(b) each of its members has vested appropriate authority in the organization to enable it to discharge the responsibilities of an accredited bargaining agent.

(2) Where the board is of the opinion that appropriate authority has not been vested in the processorsí organization, the board may dismiss or postpone disposition of the application to enable processors who are member of the processorsí organization to vest in the organization whatever additional or other authority the board considers necessary.

Results of accreditation

13.5 Upon accreditation, all rights, duties and obligations under this Act of processors for whom the accredited processorsí organization is or becomes the bargaining agent apply to the accredited processorsí organization and its members, and a collective agreement between a processor and a certified bargaining agent for fishers that is in force at the date of accreditation of a processorsí organization does not bar a certified bargaining agent for fishers from giving notice to the accredited processorsí organization to start collective bargaining nor does it bar the accredited processorsí organization from giving notice to a collective bargaining agent for fishers to start bargaining.

Binding effect

13.6 (1) Where a collective agreement is negotiated between an accredited processorsí organization and a certified bargaining agent and a processor is not a member of that accredited processorsí organization, that processor is bound by and shall comply with the terms of that collective agreement notwithstanding the fact that he or she is not a member of that accredited processorsí organization.

(2) Where a processor referred to in subsection (1) or a member of an accredited processorsí organization fails to comply with a provision of a collective agreement referred to in that subsection, the accredited processorsí organization may apply to the board for a determination on the matter and the board may make that determination.

Revocation

13.7 (1) Between September 1 and October 31 inclusive in the time period established in section 35.12

(a) an accredited processorsí organization; or

(b) one or more members of an accredited processorsí organization

may apply to the board for a declaration that the accreditation of that organization is revoked.

(2) Where an application is made under paragraph (1)(a), the board shall declare the accreditation of that processorsí organization revoked.

(3) Where an application is made under paragraph (1)(b), the board shall ascertain the processors in the accredited processorsí organization who, within a 2 month period immediately preceding the date of the making of the application, have voluntarily indicated in writing that they no longer wish to be represented by that organization and where the board is satisfied that

(a) processors processing the majority percentage of fish by finished product weight based on the previous calendar yearís production have voluntarily indicated in writing that they no longer wish to be represented by the accredited processorsí organization; and

(b) it can be shown that the accredited processorsí organization no longer fulfils the requirements of section 13.1 as determined on the basis of records submitted by processors to the Department of Fisheries and Aquaculture under the requirements of the Fish Inspection Act and the regulations made under that Act and the Fisheries Act in the context of obtaining licence renewal and reporting production from the previous calendar year,

the board shall declare the accreditation of the processorsí organization revoked.

Result of revocation

13.8 Upon the board making a declaration under subsection 13.7(2) or (3), all rights, duties and obligations of the processorsí organization under this Act and under an unexpired collective agreement revert to the individual processors to whom the collective agreement or the bargaining agentís certification order applies.

Certain agreements void

13.9 A certified bargaining agent for fishers which has bargaining rights for fishers who sell fish to processors represented by an accredited processorsí organization and a processor or person acting on behalf of the processor, shall not, as long as the accredited processorsí organization continues to be entitled to represent the processors in an accredited processorsí organization, enter into an agreement or understanding, oral or written, that provides for the selling of fish contrary to the terms of a collective agreement, and, where that agreement or understanding is entered into, it is illegal.

 

7. (1) Subsection 18(1) of the Act is amended by deleting the number "1" wherever it appears and by substituting the word "one".

(2) Paragraph 18(2)(a) of the Act is amended by deleting the number "1" and by substituting the word "one".

 

8. Section 19 of the Act is amended by deleting the number "1" and by substituting the word "one".

 

9. Subsection 23(1) of the Act is amended by deleting the number "1" wherever it appears and by substituting the word "one".

 

10. Sections 35.1 to 35.12 of the Act are repealed and the following substituted:

Definitions

35.1 In sections 35.2 to 35.13

(a) "arbitrator" means an arbitrator appointed under section 35.4 or under section 35.5; and

(b) "party" and "parties", notwithstanding paragraph 2(1)(q), means an association of fishers or a certified bargaining agent for fishers, and a processorsí organization, or an accredited processorsí organization who may or may not be bound by a collective agreement.

Notice of and schedule for negotiations

35.2 (1) Where a certified bargaining agent intends to negotiate price for a fish species, that agent shall notify the accredited processorsí organization, or in the absence of an accredited processorsí organization, a processorsí organization or a processor of that intention.

(2) The parties to collective bargaining shall, before February 1 in a year, establish a negotiation schedule with respect to each fish species which will be subject to collective bargaining during that year and the parties shall negotiate according to that schedule unless modified under subsection (4).

(3) Where a schedule has been established for a fish species under subsection (2), the parties shall, in writing, notify the minister of that schedule not later than 60 days before the expected opening date of the fishery for that species.

(4) Subject to subsection (2), the parties to collective bargaining may, by mutual consent, amend the negotiation schedule established under that subsection and shall notify the minister immediately of those changes.

Committee and facilitator

35.3 (1) Where parties commence negotiations with respect to a fish species, those parties, not later than 60 days before the expected opening date of the fishery for that species

(a) may, by mutual consent, establish a joint technical committee composed of persons who represent the interests of each party; and

(b) shall recommend to the minister, in writing, a person to be a facilitator for the negotiations.

(2) When a person is recommended to the minister as a facilitator under paragraph (1)(b), the minister shall, immediately upon receiving that recommendation, appoint that person as the facilitator.

(3) A joint technical committee established under this section shall compile factual material and identify issues with respect to the negotiations which gave rise to the establishment of that committee.

Arbitrator

35.4 (1) Where parties commence negotiations with respect to a fish species, those parties shall, not later than 60 days before the expected opening date of the fishery for that species recommend to the minister, in writing, a person to be an arbitrator to, and where called upon, arbitrate a matter under negotiation.

(2) Where a person is recommended to the minister as an arbitrator under subsection (1), the minister shall immediately upon receiving that recommendation, appoint that person as the arbitrator.

(3) An arbitrator appointed under subsection (2) shall not be a party to the negotiations or, where there is a collective agreement in place, a party to the collective agreement from which an issue arose to give rise to the negotiations.

(4) Where, due to absence, incapacity or other cause an arbitrator appointed under this section is unable to act within the time required by this Act, a Memorandum of Understanding, or in the absence of a Memorandum of Understanding, the regulations, the parties may, by mutual consent, recommend another person to be an arbitrator to, and where called upon, arbitrate the matter under negotiation, and upon receiving that recommendation the minister shall immediately appoint that other person as the arbitrator.

(5) When an arbitrator is appointed under this section, the facilitator shall inform the arbitrator of the facts and issues that pertain to the negotiations.

Default

35.5 (1) The parties shall, every calendar year, agree upon and appoint a person who is not a party to the negotiations who shall, where the parties fail to appoint

(a) a facilitator under section 35.3; or

(b) an arbitrator under section 35.4,

make the recommendations to the minister that are required by sections 35.3 and 35.4 within the time required by those sections.

(2) Where the parties to negotiations fail to make the appointment required under subsection (1), the minister shall, 15 days from the expiry of the time period referred to in sections 35.3 and 35.4, appoint a facilitator under section 35.3 or an arbitrator under section 35.4 where the required recommendations for a facilitator or an arbitrator have not been made by the parties under those sections.

(3) Where the parties fail to establish a negotiation schedule under section 35.2 within the time required under that section, the minister shall establish a negotiation schedule as required by that section.

Agreements not to be altered

35.6 Where parties are engaged in collective bargaining or have entered into a collective agreement under this Act, those parties shall not alter, except by mutual consent,

(a) the negotiated or arbitrated prices for a fish species; or

(b) other terms or conditions of a collective agreement,

in place for that fishing season or a previous fishing season, except in accordance with sections 35.1 to 35.11 or a new collective agreement.

Arbitration

35.7 (1) Where there are negotiations between parties with respect to the fishery for a fish species and a collective agreement is not reached by those parties at least 14 days before the expected commencement of that fishery, those parties shall each submit a final position on price and other matters to the arbitrator appointed with respect to those negotiations.

(2) Where final positions on price and other matters have been submitted to an arbitrator under subsection (1), he or she shall hear and consider those positions and shall make a decision with respect to those submissions and that decision shall be in accordance with one of the final positions on price and other matters submitted under subsection (1) unless the parties who submitted those positions have agreed to another form of arbitration.

(3) Final offer selection, the process referred to in subsections (1) and (2), shall be the form of arbitration used by the parties unless, at the commencement of the negotiations, the parties to the negotiations determine by agreement that another form of arbitration is acceptable to them.

(4) The arbitrator shall notify all parties to the negotiations of his or her decision not later than 7 days after receiving the final positions submitted under subsection (2).

(5) Where a decision of an arbitrator made under subsection (2) is an interim decision on price and other matters, or provides for an interim price schedule for a fish species rather than a final decision or a full season price, the parties in negotiation over that price and other matters shall continue to attempt to reach an agreement with respect to the full season price and other matters until not later than 14 days before the expiry date specified in the decision for the interim price and other matters or interim price schedule at which time the parties shall submit their final positions on the matter to the arbitrator who shall decide upon the matter and shall notify the parties of his or her decision not later than 7 days before the expiry date specified in the decision for the interim price and other matters or interim price schedule.

(6) Where an arbitrator makes a decision under this section, a collective agreement is considered to be in place with respect to that species according to the arbitratorís decision.

(7) An arbitrator acting under this section shall comply with the guidelines for arbitration and the processes for arbitration agreed to by the parties in a Memorandum of Understanding, or, where no Memorandum of Understanding exists or where it exists but is silent on those issues, an arbitrator shall comply with the regulations prescribed by the Lieutenant Governor in Council under section 49.1.

Memorandum of Understanding

35.8 (1) The parties shall, by December 31 in every calendar year, file with the minister a Memorandum of Understanding for the upcoming year, and

(a) an arbitrator appointed under section 35.4 or 35.5 shall comply with that Memorandum of Understanding; and

(b) that Memorandum of Understanding is binding upon the parties to it.

(2) A Memorandum of Understanding negotiated under subsection (1) may be changed over the course of the year to which it applies by mutual consent of the parties to it, and changes made to it shall be filed with the minister immediately.

(3) Where the parties fail to file a Memorandum of Understanding by December 31 in every calendar year as required under subsection (1), on application of one of the parties the minister shall, not later than 7 days after that date, appoint an arbitrator to consider the matter, and the parties shall, not later than 7 days from the appointment of that arbitrator, each submit a final position on the matter to him or her.

(4) Where final positions are submitted under subsection (3), the arbitrator shall hear and consider those positions and shall make a decision with respect to the matter and that decision shall be in accordance with one of the final positions submitted under subsection (3).

(5) The arbitrator shall notify all parties to the negotiations of his or her decision not later than 7 days after receiving the final positions submitted under subsection (3).

(6) A decision by an arbitrator under this section shall determine the content of the Memorandum of Understanding between the parties for the upcoming year and shall be binding upon the parties as if it had been agreed to by the parties under subsection (1).

(7) Where there is a conflict between a provision of a Memorandum of Understanding and this Act, this Act prevails.

Agreement or decision binding

35.9 Where, in the absence of an accredited processorsí organization

(a) a certified bargaining agent negotiates a collective agreement for fish species on price and other matters, or where price and other matters are determined by an arbitrator under section 35.7; and

(b) that collective agreement or decision by an arbitrator is binding upon the processors who process the majority percentage of fish by finished product weight based upon the previous calendar yearís production of that fish species

the terms of that collective agreement or that determination by an arbitrator under section 35.7 are binding upon all processors in the province who process that fish species.

Precedence

35.10 Sections 35.1 to 35.9 shall have precedence over another provision of this Act which conflicts with one or more of sections 35.1 to 35.9.

Prohibition

35.11 Notwithstanding another section of this Act, there shall be no strike, stoppage, lockout or cessation of business dealings between fishers and processors while sections 35.1 to 35.10 are in force.

Opting out

35.12 Commencing September 1, 2002 and every 2 years after that date, a party may, between September 1 and October 31 inclusive, signal its intention to opt out of the requirements of sections 35.1 to 35.11 by writing a letter to the minister stating that intention, and that letter shall, unless revoked, effect the opting out of that party on December 31 of that year.

Suspension of certain provisions

35.13 (1) The operation of sections 23, 26, 27 and 28 of this Act shall be considered to be suspended and those sections are of no effect unless a party has opted out of the requirements of sections 35.1 to 35.11 under section 35.12.

(2) Where, after December 31 in the year referred to in section 35.12, a party has opted out under that section, sections 23, 26, 27 and 28 shall no longer be considered to be suspended and shall be of full effect but sections 35.1 to 35.11 shall be considered to be suspended and shall be of no effect.

 

11. Subsection 42(2) of the Act is amended by deleting the number "1" and substituting the word "one".

 

12. Paragraph 44(c) of the Act is amended by deleting the number "1" wherever it appears and substituting the word "one".

 

13. The Act is amended by adding immediately after section 49 the following:

Regulations

49.1 The Lieutenant Governor in Council may make regulations

(a) setting the guidelines for arbitrations;

(b) outlining the arbitration processes; and

(c) generally, to give effect to the purpose of this Act.

Commencement

14. This Act shall come into force on July 1, 2000.

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