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Statutes of Newfoundland 1991


CHAPTER 47

AN ACT TO AMEND THE LABOUR RELATIONS ACT, 1977 (NO.2)

(Assented to December 11, 1991)

Analysis

1. S.6 Amdt.
Labour Relations Board

2. S.9 Amdt.
Panels of board

3. Ss.9.1 and 9.2 Added
9.1 Jurisdictional umpire
9.2 Membership
continued

4. S.70 Amdt.
Special projects

5. Sections Added
70.1 Application
70.2 Conflict
70.3 Employers'
organization
70.4 Results of
accreditation
70.5 Additional employers
70.6 Collective agreement
binding
70.7 Resolution, etc. to
dissolve organization
70.8 Council of trade
unions
70.9 Effect of approval of
council
70.10 Rights, etc. vested in
council
70.11 Council sole
bargaining agent
70.12 Additional trade
unions
70.13 Selective strikes or
lockouts prohibited
70.14 Resolution, etc. to
dissolve council
70.15 No automatic
recognition
70.16 Agreements void
70.17 Review of process
70.18 Non-application to
special projects

6. S.88.1 Added
Where business under common control

7. S.89 Amdt.
Where businesses transferred etc.

8. Commencement

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


1977 c.64
as amended

1. (1) Subsection 6(2) of The Labour Relations Act, 1977 is amended by striking out the words and figures "Subject to subsections (3) to (7)" and substituting the words and figures "Subject to subsections (3) to (7.2)".

(2) Paragraph 6(2)(a) of the Act is repealed and the following substituted:

(a) a chairman, who holds office for 5 years;

(3) Subsection 6(4) of the Act is repealed and the following substituted:

(4) The Lieutenant-Governor in Council shall appoint 1 or more persons to be vice-chairmen of the Board who, subject to subsection (7.2), hold office for 5 years, and shall, in accordance with the regulations that may be made in that behalf, act in the place of the chairman during the absence of the chairman and that vice-chairman is a member of the Board while he or she is so acting.

(4) Subsections 6(5), (6) and (7) of the Act are repealed and the following substituted:

(5) The Lieutenant-Governor in Council may appoint as many persons as he or she considers appropriate but in number equally representative of employees and employers in the province to serve as alternate members of the board and as members of a panel of the board and the persons appointed hold office for 2 years.

(6) A person appointed under subsection (5) as a representative of employers may serve on the board in the absence of a person appointed under paragraph (2)(b) or where that person has an undue interest.

(7) A person appointed under subsection (5) as a representative of employees may serve on the board in the absence of a person appointed under paragraph (2)(c) or where that person has an undue interest.

(7.1) The persons appointed under subsection (5) shall be considered to be members of the board only while serving on the board or on a panel of the board.

(7.2) Persons appointed under subsections (3), (4) and (5) hold office during pleasure and are eligible for reappointment.

2. (1) Subsection 9(1) of the Act is repealed and the following substituted:

Panels of board

9. (1) The chairman may establish 1 or more panels of the board and in respect of matters referred to a panel by the chairman a panel has and shall exercise the power and authority of the board, and 2 or more panels may proceed with separate matters at the same time.

(2) Subsection 9(3) of the Act is repealed and the following substituted:

(3) A panel consists of the chairman, or the vice-chairman, if appointed by the chairman, and 1 member representative of employers and 1 member representative of employees selected by the chairman from among the group of persons appointed under subsection 6(2) or (5).

(3) Subsection 9(4) of the Act is amended by striking out the words "Lieutenant-Governor in Council" and by substituting the word "chairman".

3. The Act is further amended by adding immediately after section 9 the following:

Jurisdictional umpire

9.1 (1) The Lieutenant-Governor in Council may, after consulting unionized employers and trade unions, appoint as a member of the board, a person to act as a jurisdictional umpire, in this section referred to as the "umpire".

(2) The umpire shall be appointed upon the terms and conditions that the Lieutenant-Governor in Council may establish.

(3) A unionized employer, employers' organization, a trade union or council of trade unions may apply to the board for a determination of a jurisdictional dispute between unions in relation to which an employer for which the union is certified or has voluntarily recognized the union and the umpire shall, after giving all interested parties an opportunity to make submissions, give a decision in the matter.

(4) In giving a decision with respect to a jurisdictional dispute the umpire shall consider existing agreements, decisions of the board and other adjudicative bodies and, in the absence of existing agreements, decisions of the board and other adjudicature bodies, past and area practices.

(5) In this section "jurisdictional dispute" means a dispute in which a trade union alleges that work which would, taking into consideration an existing agreement, decisions in previous disputes or local and area practice, ordinarily have been assigned to its members has been assigned to members of another union and the union to which the work has been assigned contends that the assignment of work is a proper one.

(6) A decision of the umpire has the same effect as a decision of the board and is final and binding and not subject to review.

(7) Where a unionized employer, employers' organization, a trade union or council of trade unions agree or have agreed, either before or after the commencement of this section, as part of a collective agreement, to a dispute resolution mechanism for jurisdictional disputes, this section shall not apply unless the parties to the collective agreement mutually agree on its application.

Membership continued

9.2 Where a matter has been referred to the board or a panel or a proceeding before it begun and the appointment of a member, who has been participating in the board's or panel's consideration of the matter referred to it or in the proceeding, expires, or the member resigns, before the board or panel concludes its consideration of the matter or gives a decision, the member, for the purpose of the board's or panel's concluding its consideration of the matter or giving its decision, shall be considered to continue to be a member of the board or panel.

4. Section 70 of the Act is amended by adding immediately after subsection (4) the following:

(5) Where an undertaking is declared a special project or where an agreement is declared to be an agreement relating to a special project, employees who work under the provisions of that agreement or under a collective agreement in relation to the work at the site of the special project, may not be included as members in good standing of the trade union or employees in a unit for purposes of a vote under section 37 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).

5. The Act is further amended by adding immediately after section 70, the following:

DIVISION IV
MULTI-TRADE BARGAINING

Application

70.1 (1) This Division applies only to the industrial and commercial sector of the construction industry (referred to in this Division as "the sector").

(2) Notwithstanding subsection (1), the minister may, by order, extend the application of this Division to another or all of the other sectors of the construction industry referred to in paragraph 54(1)(c).

(3) In this Division the words "construction industry", "unionized employee" and "unionized employer" have the meaning given to them in subsection 54(1).

Conflict

70.2 Where there is a conflict between the provisions of this Division and the other provisions of this Act, the provisions of this Division prevail.

Employers' organization

70.3 (1) All unionized employers engaged in the industrial and commercial sector of the construction industry in the province shall, within 90 days following the date of coming into force of this section, form an organization for the purpose of bargaining collectively with the council of trade unions established under section 70.8 and shall file with the board a constitution setting up the organization.

(2) Notwithstanding subsection (1), where, on the commencement of this section, there is an accreditation by the board under section 61 of an employers' organization for the sector, the employers' association shall be considered to be an organization accredited under this section and no application for revocation of that accreditation may be made under section 65.

(3) The constitution filed with the board under subsection (1) shall include

(a) provisions authorizing the employers' organization to negotiate and to enter into collective agreements;

(b) provisions for the election or appointment of officers of the employers' organization;

(c) a formula for reaching decisions of the employers' organization 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 the council of trade unions established under section 70.8 and a time limit within which ratification must take place.

(4) Where the unionized employers referred to in subsection (1) fail or refuse to comply with subsection (1) or if the board does not approve the constitution agreed to by the unionized employers, the board may, after a hearing if one is requested, by order, amend the constitution as it considers necessary or prescribe the terms of a constitution for the employers' organization.

(5) Where a hearing is requested under subsection (4), the board shall hold a hearing within 30 days from the date when the request is received by the board.

(6) An order of the board under subsection (4) is binding upon each of the unionized employers in the sector.

(7) Where the board approves the constitution filed with it under subsection (1) or prescribes a constitution under subsection (4), it shall issue an accreditation to the employers' organization.

Results of accreditation

70.4 (1) Upon accreditation of the employers' organization under section 70.3, all rights, duties and obligations under this Act of unionized employers for whom the employers' organization is or becomes the bargaining agent with respect to bargaining collectively are vested in the employers' organization.

(2) A collective agreement between a unionized employer and a trade union or council of trade unions that is in force at the date of accreditation of the employers' organization remains in force until the expiry date contained in the collective agreement and is binding upon the employers' organization.

Additional employers

70.5 Where, after the employers' organization has been accredited under section 70.3, a trade union is certified for or voluntarily recognized by another employer in the sector, the employer is considered to have become a member of the employers' organization and the rights, duties and obligations of that employer to bargain collectively are vested in the employers' organization and the employer is bound by a collective agreement in effect or subsequently negotiated between the employers' organization and the council of trade unions established under section 70.8.

Collective agreement binding

70.6 (1) A collective agreement entered into between the employers' organization accredited under section 70.3 and the council of trade unions established under section 70.8 is binding upon the employers' organization, unionized employers in the sector, trade unions, the council of trade unions and every employee within the scope of the collective agreement.

(2) No collective agreement shall be individually negotiated between, or a revision, amendment or renewal of a collective agreement be entered into by, a unionized employer in the sector and a trade union or the council of trade unions established under section 70.8 after the employers' organization has been accredited under section 70.3 and if such a collective agreement or revision, amendment or renewal is entered into it is void.

Resolution, etc. to dissolve organization

70.7 No resolution, by-law or other action by the constituent unionized employers of the employers' organization to dissolve the organization or by a unionized employer to withdraw from the organization has effect.

Council of trade unions

70.8 (1) All trade unions that have been certified by the board or voluntarily recognized by an employer to represent employees in the industrial and commercial sector of the construction industry in the province shall, within 90 days following the date of coming into force of this section, form a council of trade unions for the purpose of bargaining collectively with the employers' organization accredited under section 70.3 and shall file with the board a constitution setting up the council.

(2) The constitution filed with the board under subsection (1) shall include

(a) provisions authorizing the council to negotiate and to enter into collective agreements;

(b) provision for the election or appointment of officers of the council;

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

(d) a formula for the ratification, by the employees represented by the trade unions that are members of the council, of collective agreements reached between the council and the employers' organization accredited under section 70.3 and a time limit within which a ratification vote must take place.

(3) Where the trade unions referred to in subsection (1) fail or refuse to comply with subsection (1) or if the board does not approve of the constitution agreed to by the trade unions the board may, after a hearing if one is requested, by order, amend the constitution as it considers necessary or prescribe the terms of a constitution for the council of trade unions.

(4) Where a hearing is requested under subsection (3) the board shall hold a hearing within 30 days from the date when the request is received by the board.

(5) An order of the board under subsection (3) is binding upon each of the trade unions representing unionized employees in the sector.

(6) Where the board approves the constitution filed with it under subsection (1) or prescribes a constitution under subsection (3), it shall authorize the council to act as the bargaining agent for the unionized employees in the sector.

(7) Membership in a trade union that forms part of the council of trade unions established under this section is considered to be membership in the council.

Effect of approval of council

70.9 Upon the establishment of the council of trade unions under section 70.8

(a) the council and each trade union forming the council is bound by a collective agreement entered into by the council and the employers' organization accredited under section 70.3; and

(b) this Act applies to the council as if the council were a trade union.

Rights, etc. vested in council

70.10 Upon the establishment of the council of trade unions under section 70.8, the rights, duties and obligations of the trade unions composing the council with respect to bargaining collectively are vested in the council.

Council sole bargaining agent

70.11 When the council of trade unions is established under section 70.8 to act as the bargaining agent of employees in the sector

(a) the council immediately replaces another bargaining agent representing a unit of employees in the sector and has exclusive authority to conduct collective bargaining on behalf of all unionized employees in the sector and to bind them to a collective agreement; and

(b) if, at the time of certification, a collective agreement binding on or entered into on behalf of employees in a unit in the sector is in force, then the council is substituted as a party to the agreement in place of the bargaining agent that was a party to that collective agreement on behalf of employees in the unit immediately before the authorization.

Additional trade unions

70.12 Where, after the establishment of the council of trade unions under section 70.8, a trade union is certified or voluntarily recognized by an employer to represent a unit of employees in the sector, the trade union is considered to be a member of the council for the purposes of this Division.

Selective strikes or lockouts prohibited

70.13 (1) Where the council of trade unions established under section 70.8 declares or authorizes a strike, it shall declare or authorize the strike

(a) in respect of all the members of the employers' organization accredited under section 70.3; and

(b) in respect of all the work being performed by the members of the employers' organization accredited under section 70.3

by all unionized employees in the sector.

(2) Where the employers' organization accredited under section 70.3 declares or causes a lockout of unionized employees employed by unionized employers in the sector, all unionized employers in the sector shall participate in the lockout and shall lock out all unionized employees.

Resolution, etc. to dissolve council

70.14 No resolution, by-law or other action by the constituent trade unions of the council of trade unions established under section 70.8 to dissolve the council or by a constituent union of the council to withdraw from the council has effect.

No automatic recognition

70.15 Notwithstanding the accreditation of an employers' organization in the sector, an employer in the sector is bound by a collective agreement entered into between the employers' organization accredited under section 70.3 or 61 and the council of trade unions established under section 70.8 only in respect of a trade union for which the employer has been certified or which he or she has voluntarily recognized.

Agreements void

70.16 Section 68 applies with respect to an employers' organization accredited under section 70.3 or 61 and to a council of trade unions established under this Division and an employer, trade union or council of trade unions that contravenes the section is guilty of an offence and liable to the fine that the Lieutenant-Governor in Council may, by regulation, prescribe, not exceeding $5,000 for each day that employees are supplied.

Review of process

70.17 Where after the commencement of this Division an employers' organization accredited under section 70.3 or 61 and a council of trade unions established under section 70.8 have negotiated a collective agreement, the minister shall undertake a review of the multi-trade bargaining process as provided for in this Division and shall report to the Lieutenant-Governor in Council on those amendments that may be necessary or advisable in relation to the process.

Non-application to special projects

70.18 Where before or after the commencement of this section, the Lieutenant-Governor in Council has made an order relating to a special project under section 70, the provisions of this Division have no application in relation to the special project, and an employers' organization accredited under section 70.3 or 61 and a council of trade unions established under 70.8 may or may not be parties to a collective agreement relating to employment on the special project, subject to terms of the order prescribed under section 70.

6. The Act is further amended by adding immediately after section 88 the following:

Where businesses under common control

88.1 (1) Where, in the opinion of the board, associated or related activities or businesses are carried on, whether or not simultaneously, by or through more than 1 corporation, partnership, person, syndicate or association of persons, under common control or direction, the board may, upon the application of a person, trade union or council of trade unions and where, in the opinion of the board, there is a labour relations purpose for the application, declare the corporations, partnerships, persons, syndicates or associations of persons to be 1 employer for the purposes of this Act.

(2) Where, in an application or order under subsection (1), it is alleged that more than 1 corporation, partnership, person, syndicate or association of persons is under common control or direction, a respondent to the application shall, when ordered to do so by the board, adduce all facts within his or her knowledge that are material to the allegation.

(3) Where a corporation, partnership, person, syndicate or association of persons is the subject of a declaration under subsection (1), the declaration shall not apply to the corporation, partnership, person, syndicate or association of persons in relation to obligations under a contract entered into prior to the coming into force of this section.

(4) The board shall not declare more than 1 corporation, partnership, person, syndicate or association of persons to be 1 employer unless, in the opinion of the board it is necessary

(a) to preserve from infringement bargaining rights held by a trade union; or

(b) to prevent an employer from avoiding the provisions of this Act.

(5) This section applies only to the construction industry as defined in paragraph 54(1)(b).

7. Section 89 of the Act is amended by adding immediately after subsection (5) the following:

(6) Where, as a result of an application to the board under subsection (2), it is alleged that a sale, lease, transfer or other disposition of a business or the operations of a business, or a part of either of them has occurred, an employer, a purchaser, lessee or transferee shall, when ordered to do so by the board, adduce all facts within his or her knowledge that are material to the allegation.

Commencement

8. (1) Sections 1, 2, 3 and 4 come into force on Royal Assent.

(2) Sections 5, 6 and 7 come into force on a day or days to be proclaimed by the Lieutenant-Governor in Council.

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