22

 

 

Third Session, 47th General Assembly

63 Elizabeth II, 2014

BILL 22

AN ACT TO AMEND THE LABOUR RELATIONS ACT

Received and Read the First Time.................................................................................................

Second Reading.................................................................................................................................

Committee..........................................................................................................................................

Third Reading.....................................................................................................................................

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

HONOURABLE DAN CRUMMELL

Minister of Service Newfoundland and Labrador 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 to

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

·         remove the requirement for parties to collective bargaining to request a conciliation board in order to advance the collective bargaining process; and

·         reorder the provisions relating to conciliation proceedings and strikes and lockouts.

A BILL

AN ACT TO AMEND THE LABOUR
RELATIONS ACT

Analysis


        1.   S.19.1 Amdt.
Review of bargaining unit

        2.   S.29 Amdt.
Organized slow-down

        3.   Ss.47 & 47.1 R&S
Taking of votes and ballot

        4.   S.74 Amdt.
Time limit

        5.   S.75 Amdt.
Time limit

        6.   Ss.79 & 80 Rep.
79. Conciliation officer
80. Appointment of mediator

        7.   S.81 Amdt.
First collective agreement

        8.   S.92 Amdt.
Settlement by arbitration

        9.   Parts V & VI R&S

                      PART V
        CONCILIATION
        PROCEEDINGS

              98.    Appointment of
         conciliation officer
99.    Conciliation officer’s
         report to minister
100. Appointment of conciliation board
101. Conciliation board
         appointment
102. Removal and
         replacement of
         members
103. Oath of office
104. Terms of reference
105. Conciliation
106. Witnesses and
         documents
107. Entry and inspection
108. Report to minister
109. Copy and publication
110. Parties to
         acknowledge receipt
111. Filing of evidence
         with minister
112. Evidential value of
         report
113. Parties bound
114. Failure to report
115. Appointment of
         mediator

                      PART VI
        STRIKES AND
        LOCKOUTS

              116. Conditions precedent
117. No strikes while
         agreement in force
118. Conditions precedent
         to strikes and lockouts
119. Strike vote mandatory
120. Condition precedent
         to strike on platform
121. Liability of employees
121.1 Suspension or
         discontinuance of
         operations

      10.   Transitional

      11.   RSNL1990 cF-18
Amdt.

      12.   RSNL1990 cI-18
Amdt.

      13.   RSNL1990 cP-42
Amdt.

      14.   CNLR 746/96
Amdt.



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

RSNL1990 cL-1
as amended

        1. Paragraph 19.1(2)(e) of the Labour Relations Act is amended by deleting the reference "section 98" wherever it occurs and substituting the reference "section 116".

 

        2. Section 29 of the Act is amended by deleting the reference "subsection 99(2)" and substituting the reference "subsection 117(2)".

 

        3. Sections 47 and 47.1 of the Act are repealed and the following substituted:

Taking of votes and ballot

      47. (1) Where an application for certification is supported by not less than 40% of the employees in the unit to which the application relates, the board shall take a vote of the employees in the unit to determine their wishes with respect to the certification of the applicant trade union as their bargaining agent.

             (2)  Notwithstanding subsection (1), 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.

             (3)  A vote taken as required by this section shall be taken at the time and place, or by mail, as the board determines.

             (4)  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.

             (5)  Notwithstanding subsection (4), the board may in exceptional circumstances extend the time for the taking of the vote by the number of days which it considers appropriate.

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

             (7)  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.

             (8)  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.

             (9)  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.

 

        4. Paragraph 74(b) of the Act is repealed and the following substituted:

             (b) except with the prior written approval of the board, the employer shall not alter rates of wages or other terms or conditions of employment of employees in the unit without the prior consent of the bargaining agent that was certified in respect of that unit, until

                      (i)  a collective agreement has been concluded,

                     (ii)  a conciliation officer has been appointed to try to bring about an agreement between the parties, and 15 days have elapsed from the date on which the report of the conciliation officer was received by the minister and a conciliation board has not been appointed, or

                    (iii)  a conciliation board has been appointed to try to bring about agreement between the parties and 7 days have elapsed from the date on which the report of the conciliation board was received by the minister,

whichever first occurs.

 

        5. Paragraph 75(b) of the Act is repealed and the following substituted:

             (b)  where a renewal or revision of the agreement or a new collective agreement has not been concluded before expiry of the term or termination of the collective agreement, then, unless he or she receives the prior written approval of the board, the employer shall not, without the written consent of the bargaining agent certified or recognized in respect of the appropriate unit, decrease rates of wages or alter other terms or conditions of employment in effect immediately before the expiry or termination provided for in the agreement, until

                      (i)  a renewal or revision of the agreement on a new collective agreement has been concluded,

                     (ii)  a conciliation officer has been appointed to try to bring about an agreement between the parties, and 15 days have elapsed from the date on which the report of the conciliation officer was received by the minister and a conciliation board has not been appointed, or

                    (iii)  a conciliation board has been appointed to try to bring about an agreement between the parties and 7 days have elapsed from the date in which the report of the conciliation board was received by the minister,

whichever first occurs.

 

        6. Sections 79 and 80 of the Act are repealed.

 

        7. (1) Subsection 81(3) of the Act is amended by deleting the reference "section 98" and substituting the reference "section 116".

             (2)  Subsection 81(11) of the Act is amended by deleting the reference "section 98" and substituting the reference "section 116".

 

        8. Subsection 92(3) of the Act is amended by deleting the reference "section 98" and substituting the reference "section 116".

 

        9. Parts V and VI of the Act are repealed and the following substituted:

PART V
CONCILIATION PROCEEDINGS

Appointment of conciliation officer

      98. (1) Where notice to begin collective bargaining has been given under this Act and

             (a)  collective bargaining has not begun within the time prescribed by this Act; or

             (b)  collective bargaining has begun,

and either party requests the minister in writing to instruct a conciliation officer to confer with the parties to help them in concluding a collective agreement or a renewal or revision of it and the request is accompanied by a statement of the difficulties that have been encountered before the beginning or in the course of the collective bargaining, or where, in another case, the minister considers it desirable to do so, the minister may instruct one or more conciliation officers to confer with the parties engaged in collective bargaining.

             (2)  Except with the consent of the minister and notwithstanding a law to the contrary, a conciliation officer or a member of the staff of the board 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 conciliation officer or as a member of the staff of the board.

Conciliation officer’s report to minister

      99. Where a conciliation officer has, under this Act, been instructed to confer with parties engaged in collective bargaining or parties to a dispute, he or she shall, within 14 days after being so instructed or within the period that the minister may allow, make a report to the minister setting out

             (a)  the matters upon which the parties have agreed;

             (b)  the matters upon which the parties cannot agree; and

             (c)  a statement as to the advisability of appointing a conciliation board with a view to effecting an agreement.

Appointment of conciliation board

   100. (1) The minister may appoint a conciliation board for the purpose of trying to bring about an agreement between the parties where

             (a)  a conciliation officer fails to bring about an agreement between the parties engaged in collective bargaining; or

             (b)  before or after the commencement of a legal strike or lockout, the minister considers it desirable to do so.

             (2)  Following the commencement of a legal strike or lockout, either party may request the appointment of a conciliation board and the minister may appoint a conciliation board in accordance with this Act.

Conciliation board appointment

   101. (1) A conciliation board appointed under this Act shall consist of a chairperson and 2 members appointed in the manner provided in this section.

             (2)  Where the minister decides to appoint a conciliation board, he or she shall, immediately by written notice, require each of the parties to nominate, within 7 days after receipt of notice, one person to be a member of the board, and, upon receipt of the nominations within 7 days, the minister shall appoint those persons members of the board.

             (3)  Where either of the parties to whom notice is given under this section fails or neglects to nominate a person within 7 days after receipt of notice, the minister shall appoint as a member of the conciliation board a person he or she considers appropriate for the purpose and the person shall be considered to have been appointed on the recommendation of the party who did not respond to the notice.

             (4)  The 2 members appointed under subsections (2) and (3) shall, within 5 days after the day on which the second of them is appointed, nominate a third person who is willing and ready to act to be a member and chairperson of the conciliation board and the minister shall appoint him or her a member and chairperson of the conciliation board.

             (5)  Where the 2 members appointed under subsection (2) or (3) fail or neglect to make a nomination within 5 days after the appointment of the second member, the minister shall immediately appoint, as the third member and chairperson of the conciliation board, a person who in his or her opinion is qualified and who has consented to so act.

             (6)  A person who has a monetary interest in the matters referred to the conciliation board or who is acting, or has within a period of 6 months preceding the date of his or her appointment acted, in the capacity of solicitor, legal adviser, counsel or paid agent of either of the parties shall not be appointed to or act as a member of a conciliation board.

             (7)  The members of a conciliation board shall be paid the remuneration that may be fixed by the Lieutenant-Governor in Council and those actual and reasonable expenses that are incurred by them in the discharge of their duties.

             (8)  When a conciliation board has been appointed, the minister shall immediately notify the parties of the names of the members of the board.

             (9)  Where the minister has given notice to the parties that a conciliation board has been appointed under this Act, it shall be presumed that the board described in the notice has been established in accordance with this Act, and no order may be made or process entered or proceeding taken in a court to question the granting or refusal of that board or to review, prohibit or restrain its establishment or its proceedings.

Removal and replacement of members

   102. Where, in the opinion of the minister, a conciliation board or a member of it is unduly or unnecessarily deferring or delaying or attempting to defer or delay the hearing or determination of a matter pending before that board, the minister

             (a)  may remove the board or a member of the board; and

             (b)  shall serve notice on the party who appointed a member who has been removed or, where the chairperson has been removed, on the remaining members of the board who have not been removed requiring the nomination in accordance with section 101 of a person to be a member of the board to replace the member who has been removed,

and the provisions of that section apply, with the necessary changes, to the appointment of members of a conciliation board required by a notice served under this section.

Oath of office

   103. Each member of a conciliation board shall before so acting take and sign before a person authorized to administer an oath or affirmation, and file with the minister an oath or affirmation in the following form:

"I, A.B., make oath and say (affirm) that I will faithfully, truly and impartially to the best of my knowledge, skill, and ability, execute and perform the office of member of the conciliation board appointed to . . . . . . . . . . . . . . . . . . . . . and will not, except in the discharge of my duties, disclose to a person the evidence or other matter brought before the board." (Where an oath is taken, add "So help me God".)

Terms of reference

   104. (1) Where the minister has appointed a conciliation board, he or she shall immediately deliver to it a statement of the matters referred to it, and may either before or after the board makes its report amend or add to the statement.

             (2)  After a conciliation board has made its report, the minister may direct it to reconsider and clarify or amplify the report or a part of it or to consider and report on a new matter added to the statement of matters referred to it.

             (3)  Where the minister has requested the reconsideration, clarification or amplification of a report or a part of it or the consideration of and report on a new matter under subsection (1) or (2), the report of the conciliation board concerned shall, for the purpose of this Act, be considered not to have been received by the minister until he or she receives the supplementary or additional report requested by him or her under either of those subsections.

Conciliation

   105. (1) A conciliation board shall, immediately after the appointment of the chairperson, try to bring about agreement between the parties in relation to the matters referred to it.

             (2)  Except as otherwise provided in this Act, a conciliation board may determine its own procedure but shall give full opportunity to all parties to present evidence and to make representations.

             (3)  The chairperson may, after consultation with the other members of the board, fix the time and place of sittings of a conciliation board and shall notify the parties as to the time and place so fixed.

             (4)  The chairperson and one other member of a conciliation board constitute a quorum, but in the absence of a member, the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.

             (5)  The decision of a majority of the members present at a sitting of a conciliation board is the decision of that board, and in the event that the votes are equal the chairperson has a second or casting vote.

             (6)  The chairperson shall forward to the minister a detailed certified statement of the sittings of the conciliation board, and of the members and witnesses present at each sitting.

             (7)  The report of the majority of its members is the report of the conciliation board.

Witnesses and documents

   106. (1) A conciliation board has the power of summoning before it witnesses and of requiring them to give evidence on oath or affirmation orally or in writing, and to produce those documents and things that the board considers necessary to the full investigation and consideration of the matters referred to it, but the information so obtained from the documents shall not, except as the board considers expedient, be made public.

             (2)  A member of a conciliation board has the powers that are or may be conferred on a commissioner under the Public Inquiries Act, 2006.

Entry and inspection

   107. A member of a conciliation board or a person who has been authorized for that purpose in writing by the board may, without authority other than this section, enter a building, ship, vessel, factory, workshop, place or premises in the province where work is being or has been done or started by employees or in which an employer carries on business or a matter or thing is taking place or has taken place, concerning the matters referred to that board, and may inspect and view work, material, machinery, appliance or articles there and interrogate persons in or upon the place, matter or thing and a person shall not hinder or obstruct the board or a person, so authorized by it, in the exercise of a power conferred by this section or refuse to answer an interrogation made under this section.

Report to minister

   108. A conciliation board shall, within 14 days after the appointment of the chairperson or within a longer period that may be agreed upon by the parties or that may be allowed by the minister, report its findings and recommendations to the minister.

Copy and publication

   109. On receipt of the report of a conciliation board, the minister shall immediately send a copy to each party and he or she may publish the report in the manner that he or she thinks appropriate.

Parties to acknowledge receipt

   110. Each party to whom a copy of a report is sent in accordance with section 109 shall, within 7 days after the date on which that party receives a copy of the report, notify the minister in writing

             (a)  whether the recommendations contained in the report have been accepted or rejected wholly or partly; and

             (b)  which recommendations have been rejected.

Filing of evidence with minister

   111. (1) A conciliation board shall, when reporting its findings and recommendations to the minister under section 108, file with the minister in a sealed package the record of proceedings before the board and documents and exhibits received by the board in evidence or filed with the board during the proceedings, other than documents or exhibits that are returned to a person who filed them with the board for the purpose of the proceedings.

             (2)  A person shall not break the seal affixed to a package filed with the minister in accordance with subsection (1), except under a written order of the minister for the purpose of obtaining documents or exhibits that are returnable to a person who filed them with the board for the purpose of its proceedings.

             (3)  Notwithstanding anything to the contrary contained in the Management of Information Act, the contents of a package filed with the minister in accordance with subsection (1) may be destroyed after the expiration of 3 years from the date it was filed under that subsection.

Evidential value of report

   112. A report of a conciliation board and testimony or proceedings before a board is not receivable in evidence in a court in the province except in the case of a prosecution for perjury.

Parties bound

   113. Where a conciliation board has been appointed, the parties may before or after the board makes its report, by a written agreement, bind themselves to adopt the recommendations of the board, and where an agreement is made, the parties to it shall give effect to the recommendations.

Failure to report

   114. Failure of a conciliation officer or conciliation board to report to the minister within the time provided in this Act does not invalidate the proceedings of the officer or the board nor does it terminate the authority of the board or officer under this Act.

Appointment of mediator

   115. (1) The minister may, instead of appointing a conciliation board, appoint a person from within or outside the public service as a mediator to endeavour to bring about an agreement between the parties.

             (2)  The minister may, after notice to begin collective bargaining has been given under this Act, appoint a person, whether or not he or she is an employee in the public service, as a mediator to confer with the parties to the collective bargaining, where the minister is of the opinion that the appointment is likely to contribute to more harmonious industrial relationships between the parties.

             (3)  Where the minister has appointed a mediator after a conciliation officer has been appointed, the appointment of the conciliation officer is terminated.

             (4)  Sections 102 to 108 and 111 to 114 apply, with the necessary changes, to and in respect of a mediator appointed under this section as if he or she were a conciliation board.

             (5)  When in respect of a dispute the conditions prescribed in sections 116 and 117 have been fulfilled and the dispute has not been settled, or where the minister considers it necessary, he or she may appoint as a conciliator or mediator a person, whether or not he or she is an employee in the public service, designated by him or her who shall attempt to secure a settlement of a difference between the parties to the dispute and make a report within the time that the minister may indicate and prescribe in the appointment.

PART VI
STRIKES AND LOCKOUTS

Conditions precedent

   116. Where a trade union or a council of trade unions, on behalf of a unit of employees, is entitled by notice under this Act to require an employer or an employers' organization to begin collective bargaining, with a view to the conclusion or renewal or revision of a collective agreement, the bargaining agent shall not take a strike vote or authorize or participate in the taking of a strike vote of employees in the unit or declare or authorize a strike of the employees in the unit, and no employee in the unit shall strike, and the employer or the employers' organization shall not declare or cause a lockout of the employees in the unit, until the bargaining agent and the employer or employers' organization or representatives, authorized by them in that behalf, have bargained collectively in good faith and have failed to conclude a collective agreement, and

             (a)  a conciliation officer has been appointed to try to bring about an agreement between the parties, and 15 days have elapsed from the date on which the report of the conciliation officer was received by the minister and a conciliation board has not been appointed; or

             (b)  a conciliation board has been appointed to try to bring about an agreement between the parties and 7 days have elapsed from the date on which the report of the conciliation board was received by the minister.

No strikes while agreement in force

   117. (1) Except in respect of a dispute that is subject to subsection (2),

             (a)  an employer or employers' organization that is bound by or that is a party to a collective agreement shall not declare or cause a lockout with respect to an employee bound by the collective agreement or on whose behalf the collective agreement was entered into; and

             (b)  during the term of the collective agreement, an employee, who is bound by a collective agreement or on whose behalf a collective agreement has been entered into, shall not go on strike and a bargaining agent that is a party to the agreement shall not declare or authorize a strike of that employee.

             (2)  Where a collective agreement is in force and a dispute arises between the parties to it with reference to the revision of a provision of the agreement that by virtue of the agreement is subject to revision during the term of the agreement, the employer who is bound by it or who is a party to it shall not declare or cause a lockout with respect to an employee bound by it or on whose behalf the collective agreement has been entered into, and no employee shall strike and no bargaining agent that is a party to the agreement shall declare or authorize a strike of the employee until the bargaining agent of the employees and the employer or representatives authorized by them on their behalf have bargained collectively and have failed to conclude an agreement on the matters in dispute, and

             (a)  a conciliation officer has been appointed to try to bring about an agreement between the parties, and 15 days have elapsed from the date on which the report of the conciliation officer was received by the minister and a conciliation board has not been appointed; or

             (b)  a conciliation board has been appointed to try to bring about an agreement between the parties and 7 days have elapsed from the date on which the report of the conciliation board was received by the minister.

Conditions precedent to strikes and lockouts

   118. (1) An employee in a unit shall not strike and an employer or employers' organization shall not declare or cause a lockout of employees, until a bargaining agent has become entitled on behalf of the unit of employees to require their employer by notice under this Act to begin collective bargaining with a view to the conclusion or renewal or revision of a collective agreement and the provisions of section 116 or 117 have been complied with.

             (2)  A trade union that is not entitled to bargain collectively under this Act on behalf of a unit of employees shall not declare or authorize a strike of employees in that unit.

Strike vote mandatory

   119. (1) Notwithstanding another provision of this Part, a trade union or person shall not declare or authorize a strike and an employee shall not strike until after a vote has been taken by secret ballot of the employees in the unit affected as to whether to strike and a majority of the employees voting have voted in favour of a strike.

             (2)  Notwithstanding another provision of this Part, a council of trade unions formed under section 70.8 shall not declare or authorize a strike and an employee shall not strike until each trade union forming the council of trade unions has taken a vote under subsection (1) and a majority of those trade unions have been given a mandate by the employees who they represent to declare or authorize a strike.

             (3)  The strike vote required by subsection (1) or (2) is in addition to the other conditions precedent to a strike contained in this Part.

             (4)  A strike vote taken as required by this section shall be conducted in such a manner, whether by mail or otherwise, that those employees entitled to vote have ample opportunity to cast their ballots.

Condition precedent to strike on platform

   120. (1) Notwithstanding another provision of this Part, a trade union, or a council of trade unions, or person shall not declare or authorize a strike and an employee shall not strike, and an employer shall not lockout its employees, until the parties to a collective agreement in relation to an offshore petroleum production platform have entered into an agreement setting out work force requirements and procedures necessary to ensure the orderly and safe shutdown and maintenance of the platform in the event of a strike or lockout of employees employed on the platform.

             (2)  Where the parties to which subsection (1) applies have not reached an agreement required under subsection (1) 90 days prior to the expiry of a collective agreement between the parties, either party may apply to the board and after the examination that the board considers necessary the board may settle the terms and conditions of the agreement.

             (3)  An agreement entered into under subsection (1) or settled by the board under subsection (2) is binding on the parties to it or affected by it, notwithstanding the expiry of the collective agreement between the parties.

             (4)  In this section

             (a)  "employees" means employees employed on an offshore petroleum production platform other than construction and start up employees; and

             (b)  "employer" means an employer who is a member of the employers' organization formed under section 56.1.

Liability of employees

   121. Where an employee is on a strike that is not contrary to this Act, no action lies against that employee or against a bargaining agent acting on behalf of that employee in respect of damages in contract for which the employer has become liable to another person as a result of the strike, but nothing contained in this section exempts an employee or bargaining agent from liability for a tortious act.

Suspension or discontinuance of operations

121.1 Nothing in this Act prohibits the suspension or discontinuance of operation in an employer's establishment, in whole or in part, not constituting a lockout or strike.

Transitional

      10. Where, before the coming into force of this Act, an application for certification was received by the board, sections 47 and 47.1 as they existed before the coming into force of this Act shall apply to that application.

RSNL1990 cF-18
Amdt.

      11. (1) Section 20 of the Fishing Industry Collective Bargaining Act is amended by deleting the reference "section 79" and substituting the reference "section 98".

             (2)  Section 33 of the Act is amended by deleting the reference "Section 106" and substituting the reference "Section 99".

             (3)  Section 45 of the Act is amended by deleting the reference "Section 121" and substituting the reference "Section 114".

RSNL1990 cI-18
Amdt.

      12. Section 47 of the Interns and Residents Collective Bargaining Act is amended by deleting the number and comma "112,".

RSNL1990 cP-42
Amdt.

      13. Section 48 of the Public Service Collective Bargaining Act is amended by deleting the number and comma "112,".

CNLR 746/96
Amdt.

      14. Section 6 of the Labour Relations Regulations is amended by

             (a)  deleting the reference "section 79" and substituting the reference "section 98"; and

             (b)  deleting the reference "section 80" and substituting the reference "section 100".