37

 

 

First Session, 47th General Assembly

61 Elizabeth II, 2012

BILL 37

AN ACT TO AMEND THE LABOUR RELATIONS ACT

Received and Read the First Time............................................................................ June 18, 2012

Second Reading.......................................................................................................... June 19, 2012

Committee.............................................................................................. Amendment June 21, 2102

Third Reading.............................................................................................................. June 21, 2012

Royal Assent......................................................................................................................................

HONOURABLE TERRY FRENCH

Minister of Environment and Conservation and
Minister Responsible for the Labour Relations Agency

Ordered to be printed by the Honourable House of Assembly

 

EXPLANATORY NOTES

This Bill would amend the Labour Relations Act in response to the Voisey’s Bay Industrial Inquiry Commission. In particular, this Bill would

·         allow the board to limit the scope of a hearing;

·         require that parties to a collective agreement establish a labour management committee where one of the parties makes a written request;

·         provide additional powers to the board to address the consequences of failure to bargain in good faith; and

·         allow the Lieutenant-Governor in Council to make regulations in response to the recommendations of an industrial inquiry.

This Bill would also amend the Act in response to the James Oakley Report on the special project order provisions of the Act. In particular, this Bill would

·         redefine "special project" to reduce the construction period required from 3 years to 2 years and remove the requirement of a geographic site from the definition;

·         allow the Lieutenant-Governor in Council to prescribe the geographic site or scope of work to be included or excluded from a special project order;

·         clarify that special project orders may overlap temporally and geographically;

·         remove the board's authority to issue special project orders; and

·         allow the minister to refer certain questions to the board both before and after a special project order declaration.


This Bill would also

·         clarify the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence;

·         amend the certification process regarding the requirement for a representation vote;

·         require that the minister appoint a first collective agreement mediator where the parties have failed to conclude a first collective agreement;

·         impose time frames for the board in relation to the imposition of first collective agreements;

·         clarify that the Labour Management Arbitration Committee applies to this Act and the Public Service Collective Bargaining Act;

·         remove the Lieutenant-Governor in Council’s authority to order that a trade union take a secret ballot of the employees to determine their wishes with respect to resumption of work where the continuance of a strike or lockout poses a threat to an industry or geographic area of the province; and

·         allow either party during collective bargaining to request that a vote be taken to accept or reject the most recent offer.

A BILL

AN ACT TO AMEND THE LABOUR
RELATIONS ACT

Analysis


        1.   S.2 Amdt.
Interpretation

        2.   S.6 Amdt.
Continuation of board

        3.   S.15.1 Added
Protection from liability

        4.   S.17 Amdt.
Reference or application to board

        5.   S.18 Amdt.
Powers of board

        6.   S.25 Amdt.
Prohibitions relating to employers

        7.   S.47 R&S
47.   Certification,
        representation vote or
        dismissal
47.1 Representation vote

        8.   S.50 Amdt.
Exclusive authority

        9.   S.51 Amdt.
Revocation of certification

      10.   S.69 Rep.
Determination of special project

      11.   S.70 R&S
Declaration of special projects

      12.   S.81 R&S
First collective agreement

      13.   S.83.1 Added
Vote on offer

      14.   S.85 R&S
85.   Voluntary agreement
85.1 Labour management committee

      15.   S.91.1 Amdt.
Arbitration committee

      16.   S.91.3 Amdt.
Powers and duties of the committee

      17.   S.91.5 R&S
Action barred

      18.   S.102 Rep.
Danger to industry

      19.   S.123 Amdt.
Directive of board re complaints

      20.   S.147 Amdt.
Regulations

      21.   RSNL1990 cF-18 Amdt.

      22.   Commencement


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

RSNL1990 cL-1
as amended

        1. Paragraph 2(l)(u) of the Labour Relations Act is repealed and the following substituted:

             (u)  "special project" means an undertaking for the construction of works designed to develop a natural resource or establish a primary industry that is planned to require a construction period exceeding 2 years, and includes all ancillary work, services and catering relating to the undertaking or project;

 

        2. Section 6 of the Act is amended by adding immediately after subsection (9) the following:

           (10)  Where the term of office of a person appointed under subsection (5) expires, he or she continues to be an alternate member of the board until he or she is reappointed or replaced.

 

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

Protection from liability

   15.1 An action or other proceeding does not lie against the board or a member of the board for anything done or omitted to be done in good faith in the course of exercising a power or carrying out a duty under this Act.

 

        4. Section 17 of the Act is amended by adding immediately after subsection (3) the following:

             (4)  An employee may apply to the board, in accordance with section 51 of the Occupational Health and Safety Act, for a determination as to whether the actions of his or her employer or trade union were discrimatory.

             (5)  A person aggrieved by a decision of

             (a)  the assistant deputy minister under sections 27 to 30 of the Occupational Health and Safety Act; or

             (b)  an occupational health and safety officer and confirmed by the assistant deputy minister under section 32 of the Occupational Health and Safety Act

may apply to the board for a variation or revocation of the assistant deputy minister’s decision.

 

        5. (1) Section 18 of the Act is amended by adding immediately after paragraph (a.2) the following:

          (a.3)  limit the scope of a hearing;

             (2)  Section 18 of the Act is amended by adding immediately after paragraph (k) the following:

          (k.1)  make orders upon employers and trade unions in accordance with section 52 of the Occupational Health and Safety Act;

          (k.2)  confirm, revoke or vary a decision of the assistant deputy minister made under sections 27 to 30 of the Occupational Health and Safety Act or confirmed or varied under section 32 of the Occupational Health and Safety Act;

 

        6. Section 25 of the Act is amended by adding immediately after subsection (3) the following:

             (4)  Nothing in this section prevents an employer from expressing his or her views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

 

        7. Section 47 of the Act is repealed and the following substituted:

Certification, representation vote or dismissal

      47. (1) Where an application for certification is supported by at least 65% of the employees in the unit at the time of application and the board is satisfied that the other requirements for certification under this Act have been met, the board shall certify the union as the bargaining agent for the employees in the unit.

             (2)  Where an application for certification is supported by at least 40% but less than 65% of the employees in the unit at the time of application, the board shall take a vote of the employees in the unit, in accordance with section 47.1, to determine their wishes with respect to the certification of the applicant trade union as their bargaining agent.

             (3)  Where an application for certification is supported by less than 40% of the employees in the unit at the time of application, the board shall dismiss the application.

             (4)  Notwithstanding subsection (2), the board is not required to take a vote where the trade union and the employer in the unit to which the application relates jointly request that the board not take a vote.

Representation vote

   47.1 (1) A vote taken as required by subsection 47(2) shall be taken at the time and place, or by mail, as the board determines.

             (2)  Where a vote is taken, it shall be taken no more than 5 days, excluding holidays and weekends, after receipt by the board of the application for certification.

             (3)  Notwithstanding subsection (2), the board may in exceptional circumstances extend the time for the taking of the vote by the number of days which it considers appropriate.

             (4)  Where a vote is taken under subsection (1), the board shall remove and destroy, without counting, the ballots cast by persons who, at the time of application, are not employees in the unit to which the application relates.

             (5)  The board may order costs with respect to the vote under this section against the appropriate person, where, in the opinion of the board, the application was frivolous or vexatious.

             (6)  The board is bound by the outcome of a vote taken under this section except where the board determines that the procedure under this section has been influenced by intimidation, threat of dismissal or other kind of threat or coercion.

             (7)  With respect to an application for certification as a bargaining agent, the board shall adhere to the date of the application as the operative date for determining support on the basis of membership records.

 

 

        8. Paragraph 50(d) of the Act is repealed.

 

        9. Subsection 51(5) of the Act is repealed.

 

      10. Section 69 of the Act is repealed.

 

      11. Section 70 of the Act is repealed and the following substituted:

Declaration of special projects

      70. (1) The Lieutenant-Governor in Council may by order

             (a)  declare an undertaking that is a special project within the meaning of paragraph 2(1)(u) to be a special project under this Act, and the project so declared is a special project for all the purposes of this Act; or

             (b)  notwithstanding paragraph 2(1)(u), declare an undertaking for the construction or fabrication of works at the Bull Arm site, including all ancillary work, services and catering to be a special project and the project so declared is a special project for all the purposes of this Act.

             (2)  The Lieutenant-Governor in Council may, with respect to an order made under subsection (1), prescribe

             (a)  the geographic site or scope of work to which the declaration relates;

             (b)  that a geographic site or scope of work be excluded from a special project order;

             (c)  the employers, employers' organizations, trade unions and councils of trade unions that may be involved in collective bargaining relating to employment on the special project;

             (d)  the bargaining unit for the purpose of the special project;

             (e)  that a collective agreement is the collective agreement for the purpose of the special project; and

              (f)  those conditions and qualifications with respect to any aspect of the special project that the Lieutenant-Governor in Council considers necessary or desirable.

             (3)  Notwithstanding subsection 64(2), a collective agreement that is prescribed by the Lieutenant-Governor in Council under paragraph (2)(e) is valid.

             (4)  A special project order is not invalid because it overlaps temporally and geographically with another special project order.

             (5)  Where an undertaking is declared a special project, employees who work under the provisions of a collective agreement in relation to the work at the special project site may not be included as members in good standing of the trade union or employees in a unit for the purpose of a vote under section 38 and the board may not consider those employees in determining whether or not a trade union may be certified.

             (6)  Subsection (5) applies in relation to all declarations made under subsection (1) and applies in relation to all applications before the board, whether made before or after the commencement of subsection (5).

             (7)  Where the Lieutenant-Governor in Council has made an order with respect to a special project under paragraph (1)(b),

             (a)  a collective agreement proposed or entered into with respect to that special project shall not contain a provision that authorizes an employee to; and

             (b)  an employee with respect to that special project shall not,

refuse to perform work for his or her employer because other work was or will be performed or was not performed by a person or class of persons who were not or are not members of a trade union or a particular trade union.

             (8)  A provision of a collective agreement with respect to an undertaking to which paragraph (1)(b) applies that authorizes an employee to refuse to perform work for his or her employer because other work was or will be performed or was not performed by a person or class of persons who were not or are not members of a trade union or a particular trade union, is void.

             (9)  An employers' organization that may be prescribed under paragraph (2)(c) shall have a constitution that includes all of the following:

             (a)  the exclusive authority to negotiate, enter into, and administer collective agreements;

             (b)  provisions that provide for the election or appointment of its officers;

             (c)  a formula for reaching decisions that assures that a deadlock cannot occur; and

             (d)  a formula for the ratification by the employers represented by the employers' organization, of collective agreements reached between the organization and a trade union or council of trade unions prescribed as a party to collective bargaining on a special project and a time limit within which ratification shall take place.

           (10)  A council of trade unions that may be prescribed under paragraph (2)(c) shall have a constitution adopted with the agreement of each of the trade unions that are members of that council and that constitution shall include all of the following:

             (a)  provisions that vest the council with the exclusive authority to negotiate, enter into and administer collective agreements;

             (b)  provisions for the election of officers to the council;

             (c)  a formula for reaching council decisions that assures that a deadlock cannot occur;

             (d)  provisions for final, binding and expeditious resolution of jurisdictional disputes without a stoppage of work;

             (e)  provisions requiring bargaining unit employees to be members in good standing of the council; and

              (f)  a formula for the ratification by a majority of the members of the trade unions that comprise the council, of collective agreements reached between the council and an employer or employers' organization prescribed as a party to collective bargaining on a special project and a time limit within which the ratification must occur.

           (11)  Where an undertaking has been declared by order to be a special project under subsection (1), an employer, employers' organization, trade union or council of trade unions may apply to the board for a determination as to whether

             (a)  a person is an employer or an employee;

             (b)  an organization or association is an employers' organization and if so, whether that employers' organization is in compliance with subsection (9);

             (c)  an organization or association is a trade union or a council of trade unions and if it is a council of trade unions, whether that council is in compliance with subsection (10); and

             (d)  a collective agreement has been entered into.

           (12)  The minister may apply to the board for determination under subsection (11) before and after an undertaking has been declared by order to be a special project.

           (13)  The board may, with respect to an undertaking declared by order to be a special project under subsection (1), hear and decide upon complaints made to it with respect to or under sections 18.1, 30 and 130.

           (14)  This section does not apply to a special project order declared before this section comes into force.

 

      12. Section 81 of the Act is repealed and the following substituted:

First collective agreement

      81. (1) Where a trade union certified as a bargaining agent and an employer have been engaged in collective bargaining to conclude a first collective agreement and have failed to do so within 60 days after the date notice to bargain was served in accordance with section 72, the minister shall appoint a first collective agreement mediator to assist the parties in concluding a first collective agreement.

             (2)  With the agreement of the parties, the period referenced in subsection (1) may be extended to 75 days.

             (3)  Where the parties have failed to conclude a first collective agreement within 30 days after the appointment of the first collective agreement mediator or after the conditions prescribed in section 98 have been satisfied, either party may make application to the board to inquire into the dispute and where the board considers it advisable, to settle the terms and conditions for the first collective agreement.

             (4)  The board shall consider and make its decision on an application under subsection (3) within 30 days of receiving the application.

             (5)  Where the board decides to settle the terms and conditions of a first collective agreement the board shall

             (a)  appoint a date for and commence a hearing within 21 days of the decision being made;

             (b)  determine all matters in dispute; and

             (c)  release its decision within 45 days of the commencement of the hearing.

             (6)  Where the board settles the terms and conditions of a first collective agreement, those terms and conditions shall be considered to constitute the collective agreement between the trade union and the employer and to be binding on them and the employees, except to the extent that the trade union and employer agree in writing to vary those terms and conditions.

             (7)  Where an application is made under subsection (3), and upon the date the board advises the parties that it will impose a first collective agreement, an employee shall not strike or continue to strike, and the employer shall not lock out or continue to lock out the employees.

             (8)  Notwithstanding subsection (1), the parties may agree in writing, and upon notice to the minister and the board, to make application to the board to settle a first collective agreement and the board shall settle the first collective agreement.

             (9)  Notwithstanding subsection (1), the parties may agree to settle a first collective agreement through private interest arbitration.

           (10)  The appointment of a first collective agreement mediator terminates on the appointment of a conciliation officer, mediator or conciliation board.

           (11)  Nothing in this section limits the ability of a trade union or employer from fulfilling the conditions precedent under section 98 of the Act.

           (12)  Except with the consent of the minister and notwithstanding a law to the contrary, a first collective agreement mediator shall not be required to give in evidence before a court, tribunal, board, commission or conciliation board, or before another body or person, information that he or she has received in the course of his or her duty as a first collective agreement mediator.

 

      13. The Act is amended by adding immediately after section 83 the following:

Vote on offer

   83.1 (1) During collective bargaining, including after the commencement of a strike or lockout, the employer of the employees in the unit affected or an employers’ organization representing the employer may request that a vote of the employees in the affected unit be taken as to the acceptance or rejection of the offer last received by the trade union in respect of all matters remaining in dispute between the parties.

             (2)  During collective bargaining, including after the commencement of a strike or lockout, the bargaining agent of the employees in the affected unit may, if more than one employer is represented in the dispute by an employers’ organization, request that a vote of those employers be taken as to the acceptance or rejection of the offer last received by the employers’ organization in respect of all matters remaining in dispute between the parties.

             (3)  A request under subsection (1) or (2) shall be made in writing to the board.

             (4)  The board shall take a vote by secret ballot as soon as practicable after receipt of a request under subsection (1) or (2) and report the results of the vote to the parties.

             (5)  Where a majority of the employees or employers, as the case may be, participating in the vote, accept the offer last received the parties are bound by that offer and shall, without delay, enter into a collective agreement that incorporates the terms of that offer.

             (6)  Only one vote in respect of the same dispute may be held under subsection (1) and only one vote in respect of the same dispute may be held under subsection (2).

             (7)  A request that a vote be taken, or the taking of a vote, under this section does not extend any time limits or periods provided in this Act.

             (8)  The board shall determine a question that arises under this section, including a question relating to the taking of the vote or the determination of its result.

 

      14. Section 85 of the Act is repealed and the following substituted:

Voluntary agreement

      85. In the case of an undertaking declared under this Act to be a special project, an existing or future written agreement between an employer or employers' organization, on the one hand, and a trade union or a council of trade unions, on the other hand, shall be considered to be a collective agreement in force for the purpose of this Act, notwithstanding that the composition of the bargaining committee was not in accordance with section 76 or that there were no employees in the bargaining unit represented by the bargaining agent at the time of the negotiation or execution of the agreement.

Labour management committee

   85.1 (1) Where a party to a collective agreement makes a written request to the other party that the collective agreement contain a provision requiring a labour management committee to be established, the parties shall include such a provision in the collective agreement within 6 months of the date of the request.

             (2)  Where a provision establishing a labour management committee has not been included in the collective agreement within 6 months of the date of the request, the collective agreement shall be considered to contain the following provision:

At the request of either party the parties shall meet at least once every 2 months for the purpose of discussing issues relating to the workplace in order to promote effective communication between the parties bound by this agreement.

 

      15. Subsection 91.1(2) of the Act is repealed and the following substituted:

             (2)  The arbitration committee shall promote the establishment and the maintenance of a high quality and effective arbitration process for arbitrations conducted under collective agreements and under this Act and the Public Service Collective Bargaining Act.

 

      16. Paragraphs 91.3(1)(b) and (c) of the Act are repealed and the following substituted:

             (b)  oversee qualification and training processes for arbitrators who conduct arbitrations under this Act and the Public Service Collective Bargaining Act, including ongoing qualification assessment and training processes;

             (c)  establish and maintain a roster of persons who, in the opinion of the arbitration committee, are qualified to conduct arbitrations under collective agreements and this Act and the Public Service Collective Bargaining Act; and

 

      17. Section 91.5 of the Act is repealed and the following substituted:

Action barred

   91.5 An action or other proceeding does not lie against the arbitration committee or a member of the arbitration committee for anything done or omitted to be done in good faith in the course of exercising a power or carrying out a duty under this Act or the Public Service Collective Bargaining Act.

 

      18. Section 102 of the Act is repealed.

 

      19. (1) Subsection 123(5) of the Act is repealed and the following substituted:

             (5)  Where the board is satisfied after an inquiry that an employer, employers' organization, trade union, council of trade unions, employee or other person has failed to comply with subsections 122(1) and (2), the board

             (a)  shall issue a directive to the employer, employers’ organization, trade union, council of trade unions, employee or other person concerned to do or stop doing the act in respect of which the complaint was made; and

             (b)  may, in the same or a later directive, require the employer, employers' organization, trade union, council of trade unions, employee or other person concerned, as the circumstances may require,

                      (i)  to reinstate an employee suspended or discharged contrary to those provisions,

                     (ii)  to pay to an employee or former employee suspended or discharged contrary to those provisions compensation not exceeding the amount that, in the opinion of the board, would have been paid by the employer to the employee,

                    (iii)  to rescind a disciplinary action or monetary or other penalty taken or imposed contrary to those provisions,

                    (iv)  to pay a person compensation not exceeding the amount that in the opinion of the board is equivalent to the monetary or other penalty imposed on a person contrary to those provisions, or

                     (v)  to pay to an employee in respect of a failure to comply with the provisions referred to in subsection 122(1) compensation not exceeding the amount that, in the opinion of the board, is equivalent to the remuneration that would have been paid to the employee by the employer if the employer had complied with the provision referred to in subsection (1) of that section.

          (5.1)  Where the board is satisfied after an inquiry that an employer, employers' organization, trade union, council of trade unions, employee or other person has failed to comply with subsection 122(3) the board

             (a)  shall issue a directive to the employer, employers’ organization, trade union, council of trade unions, employee or other person concerned to do or stop doing the act in respect of which the complaint was made; and

             (b)  may, in the same or a later directive, require the employer, employers' organization, trade union, council of trade unions, employee or other person concerned, as the circumstances may require, to do any act or thing which the board considers necessary and which is appropriate in the circumstances.

 

      20. Section 147 of the Act is amended by adding immediately after paragraph (a) the following:

          (a.1)  in response to the recommendations of an industrial inquiry commission;

RSNL1990 cF-18
Amdt.

      21. Subsection 41.1(1) of the Fishing Industry Collective Bargaining Act is amended by adding a comma and the words and comma "except paragraph (5.1)(b)," immediately after the reference to "section 123".

Commencement

      22. Section 13 of this Act comes into force on a day to be proclaimed by the Lieutenant-Governor in Council.