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St. John's, Newfoundland and Labrador, Canada

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Statutes of Newfoundland and Labrador 2006


CHAPTER 1

AN ACT TO AMEND THE FISHING INDUSTRY COLLECTIVE BARGAINING ACT

(Assented to February 24, 2006)

Analysis


        1.   S.2 Amdt.
Definitions

        2.   S.2.1 R&S
Application of certain provisions

        3.   Ss.13.1 & 13.2 R&S
13.1 Accreditation as
        bargaining agent
13.2 Membership in
        accredited processor's
        organization

        4.   S.13.3 Amdt.
Expedited accreditation process

        5.   S.13.7 Amdt.
Revocation

        6.   S.15.1 Added
Notice to panel

        7.   Ss.16 & 17 R&S
16.   Time limits to begin
        bargaining
17.   Parties not to delay
        bargaining

        8.   Ss.19.1 to 19.14 Added
19.1   Appointment of panel
19.2   Duties of the panel
19.3   Matters beyond
          panel's authority
19.4   Procedure of the
          panel
19.5   Powers of the panel
19.6   Decision of the panel
19.7   Costs
19.8   Time limit for
          agreement
19.9   Panel to establish
          agreement
19.10 Where no collective
          bargaining occurs
19.11 Final offer selection
19.12 No cessation or
          lockout
19.13 Facilitator not
          compellable
19.14 Sections apply

        9.   S.20 R&S
Conciliation officer

      10.   S.21.1 Added
Agreement or decision binding

      11.   Ss.22.1 & 22.2 Added
22.1 Single arbitrator
22.2 Enforcement of
        arbitration award

      12.   S.23.1 Added
Costs of collective bargaining

      13.   Ss.26 to 28 Rep.
26.   Stoppage of business
        dealings, lockouts
27.   No actions during
        agreements
28.   Prohibited actions

      14.   S.29 R&S
Association constrained

      15.   S.31 R&S
Suspension of operations not affected

      16.   S.32.1 R&S
Enforcement of board's order

      17.   Ss.33 to 35 R&S
Labour Relations Act

      18.   S.38 Amdt.
Illegal lockout

      19.   S.40 Rep.
Prohibited acts

      20.   S.41 Amdt.
Reference to board

      21.   S.41.1 Added
Application of Labour Relations Act

      22.   S.43 R&S
Labour Relations Act

      23.   S.45 R&S
Labour Relations Act

      24.   S.48 Amdt.
Powers of board


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

RSNL1990 cF-18
as amended

        1. (1) Paragraph 2(1)(g) of the Fishing Industry Collective Bargaining Act is repealed.

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

       (m.01)  "majority percentage of a fish species" means the majority percentage of a fish species as measured by the round weight equivalent based upon the previous calendar year's production 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 for the calendar year previous to the application;

             (3)  Subsection 2(1) of the Act is further amended by adding immediately after paragraph (n) the following:

          (n.1)  "panel" means the Standing Fish Price-Setting Panel established under section 19.1;

             (4)  Paragraph 2(1)(q) of the Act is repealed.

             (5)  Section 2 of the Act is further amended by adding immediately after subsection (4) the following:

             (5)  In this Act, except in paragraphs 2(1)(a) and (i) and section 24, a reference to the province does not include the Labrador Inuit Land Claims Area as shown in Schedule 1-A of the Schedule to the Labrador Inuit Land Claims Agreement Act.

 

        2. Section 2.1 of the Act is repealed and the following substituted:

Application of certain provisions

      2.1 Sections 13.1 to 13.9, 19.1 to 19.14 and 35.1 to 35.5 apply only where fishers are represented by a certified bargaining agent.

 

        3. Sections 13.1 and 13.2 of the Act are repealed and the following substituted:

Accreditation as bargaining agent

   13.1 (1) Subject to the rules of the board, a processors’ organization whose members produce the majority percentage of a fish species may apply to the board to be accredited as the sole collective bargaining agent for all processors in the province of that species.

             (2)  Where as a result of an application under subsection (1) the board issues an accreditation order to a processors' organization with respect to a species of fish, a previously issued accreditation order with respect to that species is revoked.

Membership in accredited processors’ organization

   13.2 An accredited processors’ organization

             (a)  shall offer membership to processors who process the fish species for which the organization is accredited 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 processors’ organization as a condition of acquiring or retaining membership in the organization.

 

        4. (1) Subsection 13.3(1) of the Act is amended by adding immediately after the word "processors" the phrase "who process the fish species for which the applicant has applied for accreditation".

             (2)  Subsections 13.3(2) and (3) of the Act are repealed and the following substituted:

             (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 a fish species, 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 processors’ organization produces the majority percentage of a fish species, the board shall accredit the applicant.

 

        5. Paragraph 13.7(3)(a) of the Act is repealed and the following substituted:

             (a)  processors processing the majority percentage of a fish species have voluntarily indicated in writing that they no longer wish to be represented by the accredited processors’ organization; and

 

        6. The Act is amended by adding immediately after section 15 the following:

Notice to panel

   15.1 Where a notice is given under section 14 or 15, a copy of the notice shall at the same time be given to the panel.

 

        7. Sections 16 and 17 of the Act are repealed and the following substituted:

Time limit to begin bargaining

      16. Where notice to commence collective bargaining has been given under section 14,

             (a)  the certified bargaining agent and the processor, or a processors' organization representing the processor shall, without delay, but within 20 clear days after the notice was given or the further time that the parties may agree upon, meet and commence or authorize representatives on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude a collective agreement; and

             (b)  the processor shall not, without consent by or on behalf of the fishers affected, alter rates of pay for fish or alter other terms or conditions respecting the purchase of fish then in force in respect to fishers in the unit for which the bargaining agent is certified until

                      (i)  a collective agreement has been concluded that is binding on all the processors who process the species of fish to which the agreement relates, or

                     (ii)  the matters in dispute between the processor and the certified bargaining agent have been decided on by the panel and an agreement imposed that is binding on all the processors who process the species of fish to which the agreement relates,

whichever is earlier.

Parties not to delay bargaining

      17. Where a party to a collective agreement has given notice under section 15 to the other party to the agreement,

             (a)  the parties shall, without delay, but in any case within 20 clear days after the notice was given, or the further time that the parties may agree upon, meet and commence or authorize representatives on their behalf to meet and commence to bargain collectively and make every reasonable effort to conclude a renewal or revision of the agreement or a new collective agreement; and

             (b)  where a renewal or revision of the agreement or a new collective agreement has not been concluded before expiry of the term of, or termination of, the agreement, the processor shall not, without the consent of or on behalf of the fishers affected, alter rates of pay for fish or alter other terms or conditions respecting the purchase of fish in effect immediately prior to that expiry or termination provided for in the agreement, until

                      (i)  a renewal or revision of the agreement or a new collective agreement has been concluded that is binding on all the processors who process the species of fish to which the agreement relates, or

                     (ii)  the matters in dispute between the processor and the bargaining agent have been decided on by the panel and an agreement imposed that is binding on all the processors who process the species of fish to which the agreement relates,

whichever is earlier.

 

        8. The Act is amended by adding immediately after section 19 the following:

Appointment of panel

   19.1 (1) The Standing Fish Price-Setting Panel is established consisting of 3 members appointed by the Lieutenant-Governor in Council.

             (2)  The Lieutenant-Governor in Council shall appoint one of the members of the panel as chairperson.

             (3)  A member of the panel shall serve for a period of 3 years and is eligible to be reappointed.

             (4)  Where a member of the panel resigns or, due to absence, incapacity or other cause, is unable to carry out his or her duties as a member, the Lieutenant-Governor in Council shall appoint a person in his or her place who shall serve for the remainder of the term of the member being replaced.

             (5)  The members of the panel shall be paid remuneration and expenses related to carrying out their duties at a rate set by the Lieutenant-Governor in Council.

             (6)  The members of the panel shall elect one of their number to be vice-chairperson and during the absence or incapacity of the chairperson or during a vacancy in the office of the chairperson the vice-chairperson has and may exercise the powers of the chairperson and shall perform his or her duties.

             (7)  The Lieutenant-Governor in Council may appoint as many persons as he or she considers appropriate to serve as alternate members of the panel and the persons appointed hold office for 3 years and are eligible for reappointment.

             (8)  The persons appointed under subsection (7) shall be considered to be members of the panel only while serving on the panel.

             (9)  Notwithstanding subsection (3), a person continues to be and may serve as a member of the panel until he or she is reappointed or replaced.

           (10)  Notwithstanding subsection (3), of the members of the panel first appointed

             (a)  the chairperson shall be appointed for a term of 3 years;

             (b)  one member shall be appointed for a term of 2 years; and

             (c)  one member shall be appointed for a term of one year,

and are eligible for re-appointment.

Duties of the panel

   19.2 The duties of the panel are

             (a)  to facilitate access by parties to collective bargaining to market information relating to the sale of fish;

             (b)  to establish criteria that are not inconsistent with this Act relating to collective bargaining under this Act;

             (c)  to provide assistance to parties engaged in collective bargaining under this Act;

             (d)  to set prices and conditions of sale for a fish species where parties have engaged in collective bargaining and have been unable to agree or where parties have refused to engage in collective bargaining;

             (e)  to review and report on  matters related to the price and conditions of sale of a fish species that may be referred to it by the minister responsible for fisheries and aquaculture; and

              (f)  to make recommendations on matters falling within its mandate to the minister responsible for fisheries and aquaculture and the minister responsible for fisheries in the Government of Canada.

Matters beyond panel's authority

   19.3 The panel shall not have authority with respect to

             (a)  raw material shares; or

             (b)  production limits.

Procedure of the panel

   19.4 The panel may establish rules and procedures for the purpose of carrying out its duties under this Act.

Powers of the panel

   19.5 The panel has all the powers that are or may be conferred on a commissioner under the Public Inquiries Act.

Decision of the panel

   19.6 A decision of a majority of the members of the panel is a decision of the panel.

Costs

   19.7 Each party to a proceeding before the panel shall assume its own costs.

Time limit for agreement

   19.8 (1) The panel shall annually set a date by which a bargaining agent and a processor or processors organization shall conclude a collective agreement in relation to a fish species that is binding on all processors that process that fish species.

             (2)  Where parties to collective bargaining in relation to a fish species conclude a collective agreement in relation to that fish species that is binding on all processors who process that fish species prior to the date set for it by the panel under subsection (1), the parties shall so inform the panel.

             (3)  Where the panel does not set a date under subsection (1) for a fish species, a certified bargaining agent or a processor or processors' organization referred to in section 14 or a party to a collective agreement referred to in section 15 may apply to the panel for a date to be set.

             (4)  A party to collective bargaining with respect to a fish species may refer a matter other than price to the panel prior to the date set under subsection (1) and the panel may consider and give a decision with respect to the matter.

             (5)  A party referring a matter to the panel under subsection (4) shall, at the same time, give notice to the other party of that referral.

             (6)  The panel may refuse to consider a matter referred to it.

Panel to establish agreement

   19.9 (1) Where a bargaining agent and a processor or processors' organization have failed to conclude a collective agreement in relation to a fish species that is binding on all processors that process that fish species by the date set for it by the panel under subsection 19.8(1), all the matters in dispute between them relating to price and conditions of sale for a fish species shall be considered to have been referred to the panel for decision.

             (2)  The panel shall hold a hearing in relation to the matters considered to have been referred to it under subsection (1) at which the bargaining agent and processor or processors' organization may make submissions.

             (3)  Immediately after the conclusion of the hearing referred to in subsection (2) but, in any event, not later than 3 days before the normally scheduled opening date of the fishery concerned, the panel shall decide on the matters in dispute between the parties relating to price and conditions of sale for the fish species and the decision of the panel is final and binding on the parties and on all other processors that process that species of fish to which the panel's decision relates and constitutes a collective agreement or part of a collective agreement between them.

Where no collective bargaining occurs

19.10 Where a date has been set by the panel under subsection 19.8(1) and parties do not engage in collective bargaining with a view to concluding a collective agreement relating to price and conditions of sale for a fish species, the panel, following the holding of a hearing at which the bargaining agent and a processor or processors' organization may make submissions, shall set a price and conditions of sale for the fish species that are binding on the parties and on all other processors that process that fish species and that decision constitutes a collective agreement or part of a collective agreement between them.

Final offer selection

       19.11  (1) Notwithstanding subsection 19.9(3), where the parties to collective bargaining are a certified bargaining agent and an accredited processors' organization or a processors' organization that represents processors that process the majority percentage of a fish species and those parties appear before the panel under subsection 19.9(2), the panel shall hear and consider their positions on price and conditions of sale and shall make a decision with respect to those submissions and that decision shall be in accordance with one of the positions on price and conditions of sale submitted to the panel by the parties at the hearing.

             (2)  The panel shall notify the parties of its decision not later than 3 days before the normally scheduled opening date of the fishery concerned and the decision of the panel is final and binding on the parties and on all other processors that process that species of fish to which the panel's decision relates and constitutes a collective agreement or part of a collective agreement between them.

             (3)  Final offer selection, the process referred to in subsection (1), shall be the form of arbitration used by the parties referred to in subsection (1) unless the parties referred to in subsection (1) agree that another form of arbitration is acceptable to them.

No cessation or lockout

19.12 (1) A fisher shall not engage in a cessation of business dealings and a bargaining agent representing the fisher shall not take a vote as to cessation of business dealings between fishers and processors or authorize or participate in taking a vote or declare or authorize a cessation by that fisher.

             (2)  A processor or a processors' organization shall not lock out a fisher.

Facilitator not compellable

19.13 Except with the consent of the minister, and notwithstanding a law to the contrary, a person appointed by the panel as a facilitator shall not be required to give evidence before a court, board or other body or provide information that he or she has received in the course of carrying out his or her duties.

Sections apply

19.14 Where there is a conflict between the other provisions of this Act and sections 19.1 to 19.13, sections 19.1 to 19.13 apply.

 

        9. Section 20 of the Act is repealed and the following substituted:

Conciliation officers

      20. Section 79 of the Labour Relations Act with respect to conciliation officers applies to all matters within the scope of this Act.

 

      10. The Act is amended by adding immediately after section 21 the following:

Agreement or decision binding

   21.1 (1) Where, in the absence of an accredited processors’ organization 

             (a)  a certified bargaining agent negotiates a collective agreement for a fish species on price and conditions of sale; and

             (b)  that collective agreement is binding upon the processors who process the majority percentage of the fish species

the terms of that collective agreement is binding upon all processors in the province who process that fish species.

             (2)  Where a processor referred to in subsection (1) fails to comply with a provision of a collective agreement referred to in that subsection, the processors' organization affected by the failure to comply may apply to the board for a determination on the matter and the board may make that determination.

 

      11. The Act is amended by adding immediately after section 22 the following;

Single arbitrator

   22.1 (1) Where a party to a collective agreement requests, the minister shall appoint a single arbitrator instead of an arbitration board, and where a single arbitrator is appointed under this section, the arbitrator has the powers and duties conferred and imposed on an arbitration board under the Labour Relations Act.

             (2)  An arbitrator's decision shall be given within 48 hours of his or her appointment unless the parties to the collective agreement agree to a different time.

Enforcement of arbitration award

   22.2 Where an association, fisher, processor or processors' organization or other person has failed to comply with the terms of the decision of an arbitration board or of a single arbitrator made under a collective agreement or this Act a person affected by the decision may after 48 hours of the date on which the decision was made, or the date provided in it for compliance, whichever is earlier, file at the Registry of the Supreme Court a copy of the decision, exclusive of the reasons for it, and the decision shall be entered in the same way as a judgment of or order of that court and is enforceable as such.

 

      12. The Act is amended by adding immediately after section 23 the following:

Costs of collective bargaining

   23.1 A processors' organization whose members produce the majority percentage of a fish species, or an accredited processor's organization, that engages in collective bargaining is entitled to recover its costs that are directly attributable to the collective bargaining proportionately from all the processors to which the collective agreement resulting from the collective bargaining applies.

 

      13. Sections 26 to 28 of the Act are repealed.

 

      14. Section 29 of the Act is repealed and the following substituted:

Association constrained

      29. An association that is not entitled to bargain collectively under this Act on behalf of a unit of fishers shall not declare or authorize a cessation of business dealings in respect to fishers in that unit.

 

      15. Section 31 of the Act is repealed and the following substituted:

Suspension of operations not affected

      31. Nothing in this Act shall be interpreted to prohibit the suspension or discontinuance of operations in a processor's establishment, in whole or in part, not constituting a lockout or a cessation of business dealings.

 

      16. Section 32.1 of the Act is repealed and the following substituted:

Enforcement of board's order

   32.1 (1) Where a person, fisher, processor, processors' organization or an association has failed to comply with an order or decision of the board, a person, fisher, processor, processors' organization or an association affected may, after 48 hours of the date which the order or decision was made, or the date provided in it for compliance, whichever is earlier, file a copy of the order or decision, exclusive of the reasons, with the Registrar of the Supreme Court.

             (2)  Once an order or decision of the board is filed with the Registrar of the Supreme Court under subsection (1), that order or decision is enforceable as a judgment or order of that court.

             (3)  Notwithstanding subsection (1), where a directive made by the board under section 18.1 of the Labour Relations Act is not complied with, a person, association, processor or processors' organization, and their officers, officials or agents affected by that directive may file a copy of the directive, exclusive of reasons, with the Registrar of the Supreme Court and, once filed with the Registrar, that directive is enforceable as a judgment or order of the Supreme Court.

 

      17. Sections 33, 34 and 35 of the Act are repealed and the following substituted:

Labour Relations Act

      33. Section 106 of the Labour Relations Act applies to all matters within the scope of this Act to the extent of the reference to a conciliation officer.

 

      18. (1) Subsection 38(1) of the Act is amended by striking out the amount "$250" and substituting "$1,000".

             (2)  Subsection 38(2) of the Act is amended by striking out the amount "$300" and substituting "$10,000".

             (3)  Subsection 38(3) of the Act is amended by striking out the amount "$150" and substituting "$1,000".

             (4)  Subsection 38(4) of the Act is amended by striking out the amount "$300" and substituting "$10,000".

 

      19. Section 40 of the Act is repealed.

 

      20. Subsections 41(1) and (2) of the Act are repealed and the following substituted:

Reference to board

      41. (1) Where a party to collective bargaining believes that another party to the collective bargaining has failed to comply with paragraph 16(a) or with paragraph 17(a), that party may apply to the board for a determination of the matter.

             (2)  Where an application is made to the board under subsection (1), the board shall inquire into the matter and may dismiss the application or may make an order requiring a party to the collective bargaining to do those things that in the opinion of the board are necessary to secure compliance with paragraph 16(a) or paragraph 17(a).

 

      21. The Act is amended by adding immediately after section 41 the following:

Application of Labour Relations Act

   41.1 (1) Section 18.1, section 122, except subparagraph (1)(b)(iii), paragraphs (1)(d) and (e) and paragraphs (2)(b) and (c) of section 122, and sections 123 and 124 of the Labour Relations Act apply to matters within the scope of this Act with

             (a)  the words "trade union" replaced by the word "association";

             (b)  the word "strike" replaced by the words "cessation of business dealings";

             (c)  the word "employee" replaced by the word "fisher";

             (d)  the word "employer" replaced by the word "processor"; and

             (e)  the words "employers' organization" replaced by the words "processors' organization".

             (2)  In section 122 of the Labour Relations Act, the following references to provisions of that Act shall be read as the following references to provisions of this Act:

             (a)  subsection 23(1) - subsection 6(1);

             (b)  paragraph 24(1)(a) - paragraph 6(2)(a);

             (c)  paragraph 24(1)(b) - paragraph 6(2)(b);

             (d)  subsection 25(1) - subsection 6(3);

             (e)  section 26 - subsection 6(4);

              (f)  subsection 28(1) - subsection 6(6);

             (g)  section 45 - subsection 10(6);

             (h)  section 74 - section 16; and

              (i)  section 75 - section 17.

 

      22. Section 43 of the Act is repealed and the following substituted:

Labour Relations Act

      43. Sections 129, 130, with the necessary changes, and 133 of the Labour Relations Act apply to all matters within the scope of this Act.

 

      23. Section 45 of the Act is repealed and the following substituted:

Labour Relations Act

      45. Section 121 of the Labour Relations Act applies to the extent of its reference to a conciliation officer and sections 136, 137 and 139 of that Act apply to all matters within the scope of this Act.

 

      24. Subsection 48(1) of the Act is repealed and the following substituted:

Powers of board

      48. (1) An association, a processor or processors' organization may apply to the board for a determination of a matter referred to in subsection (1.1).

          (1.1)  Where

             (a)  in a proceeding before the board under this Act a question arises as to; or

             (b)  on the application of an association, processor or processor's organization to the board or a referral by the minister to the board to determine

whether,

             (c)  a person is a processor or a fisher;

             (d)  an organization or association is a processors' organization or an association;

             (e)  a processors' organization is an accredited processors' organization;

              (f)  a collective agreement has been entered into and the terms of the agreement and the persons who are parties to or are bound by the collective agreement or on whose behalf the collective agreement was entered into;

             (g)  a collective agreement is by its terms in effect;

             (h)  a party to collective bargaining has failed to comply with paragraph 16(a) or with paragraph 17(a);

              (i)  a group of fishers is a unit appropriate for collective bargaining;

              (j)  a processors' organization is appropriate to bargain collectively; or

             (k)  a person is a member in good standing of an association,

the board shall decide the question and its decision is final and conclusive for all the purposes of this Act.

          (1.2)  The minister may refer a matter set out in subsection (1.1) to the board for a determination.