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This is an official version. Copyright © 2000: Queen's Printer, Important Information
Statutes of Newfoundland 1998 CHAPTER 11 AN ACT TO AMEND THE FISHING INDUSTRY COLLECTIVE BARGAINING ACT (Assented to June 5, 1998) Analysis 1. S.13 Amdt. 2. Ss. 13.1 to 13.7 Added 3. Ss. 35.1 to 35.12 Added 4. Abeyance and commencement Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows: RSN1990 cF-18 1. Subsection 13(1) of the Fishing Industry Collective Bargaining Act is amended by deleting the number "1" immediately after the word "where" and substituting the word "one". 2. The Act is amended by adding immediately after section 13 the following: Accreditation as bargaining agent 13.1 Subject to the rules of the board, an operators' organization that claims to represent the operators in a geographic area may make application in a form approved under the Labour Relations Act to be accredited as the sole collective bargaining agent for all operators in that geographic area.Representation vote of employers in a sector, etc. 13.2 (1) Where an operators' organization referred to in section 13.1 makes application under that section, the board shall ascertain the number of operators in the geographic area applied for or the weight of fish purchased by those operators and the number of them who were members of the operators' organization at the time the application was made, and where it considers it desirable to do so, the board may hold a representation vote of operators in that area.(2) When an application is made under section 13.1 the board (a) shall determine the geographic area that is appropriate for accreditation; (b) may designate the whole or a part of the province as an appropriate geographic area; and (c) may, before accreditation, where it considers it appropriate to do so, include or exclude additional operators from the unit. (3) An accredited operators' organization, and a person acting on behalf of an accredited operators' organization, shall not deny membership to an operator 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 operators' organization as a condition of acquiring or retaining membership in the organization. Accreditation 13.3 (1) Where an application is made under section 13.1 and the board is satisfied that the operators' organization has met all of the requirements prescribed under this Act and(a) has as members a majority of the operators in the geographic area determined by the board to be appropriate for accreditation; or (b) has as members those operators who buy more than one-half of the total weight of fish landed in the geographic area determined by the board to be appropriate for accreditation by fishers in a unit certified under section 10, the board may accredit the operators' organization as the sole collective bargaining agent to bargain on behalf of all operators with an association or council of associations in the area determined by the board as an appropriate unit. (2) Where the board receives 2 applications, one of which meets the test in paragraph (1)(a) and the other that meets the test in paragraph (1)(b), the board shall choose the applicant which purchased fish from the majority of inshore fishers in the appropriate unit. RSN1990 cL-1 Application 13.4 Sections 60, 62, 63, 64 and 65 of the Labour Relations Act apply, with the necessary changes, to all matters within the ambit of this Act and in applying those sections,(a) "council of trade unions" shall be replaced by the phrase "council of associations"; (b) "employee" shall be replaced by the word "fisher"; (c) "employer" shall be replaced by the word "operator"; and (d) "trade union" shall be replaced by the word "association". Revocation 13.5 (1) Where an application is made by an operator or a unit of operators for a declaration that the accreditation under section 13.3 be revoked the board shall ascertain the number of operators in the unit of operators who, within a 2 month period immediately preceding the date of the making of the application, have voluntarily indicated in writing that they no longer wish to be represented by the accredited operators' organization.(2) Where the board is satisfied (a) that a majority of the operators ascertained in accordance with subsection (1) have voluntarily indicated in writing that they no longer wish to be represented by the accredited operators' organization; and (b) that this majority of operators are those who buy more than one-half of the total weight of the fish landed, in the geographic area applied for, by fishers in a unit certified under section 10, the board may declare the accreditation of the operators' organization revoked. (3) Where an application is made by an operator or unit of operators for a declaration that the accreditation under section 13.3 is revoked and the operators' organization informs the board that it does not desire to continue to represent the operators in the unit of operators, the board may declare the accreditation of the operators' organization revoked. Result of revocation 13.6 Upon the board making a declaration under subsection 13.5(2) or (3), all rights, duties and obligations of the operators' organization under this Act and under an unexpired collective agreement revert to the individual operators represented by the operators' organization.Certain agreements void 13.7 An association or council of associations that has bargaining rights for fishers who sell fish to operators represented by an accredited operators' organization and an operator or person acting on behalf of the operator, association or council of associations shall not, as long as the accredited operators' organization continues to be entitled to represent the operators in a unit of operators, enter into an agreement or understanding, oral or written, that provides for the selling of fish during a legal strike or lockout, and where that agreement or understanding is entered into, it is void.3. The Act is amended by adding immediately after section 35 the following: Definitions 35.1 In sections 35.2 to 35.9(a) "arbitrator" means an arbitrator appointed under section 35.4 or 35.5; and (b) "party" and "parties", notwithstanding paragraph 2(1)(q), means a fisher, association or certified bargaining agent and an operator or an operators' organization, who may or may not be bound by a collective agreement. Schedule 35.2 (1) The parties to a collective agreement shall, before February 1 in a year establish a negotiation schedule with respect to each fish species which will be subject to a collective agreement during that year.(2) When a schedule has been established for a fish species under subsection (1), the parties shall, in writing, notify the minister of that schedule not later than 60 days before the expected opening date of the fishery for that species. Committee and facilitator 35.3 (1) Where parties commence negotiations with respect to a fish species, those parties shall, not later than 60 days before the expected opening date of the fishery for that species(a) establish a joint technical committee composed of persons who represent the interests of each party; and (b) recommend to the minister, in writing, a person to be a facilitator for the negotiations. (2) When a person is recommended to the minister as a facilitator under paragraph (1)(b), the minister shall, immediately upon receiving that recommendation, appoint that person as the facilitator. (3) A joint technical committee established under this section shall compile factual material and identify issues with respect to the negotiations which gave rise to the establishment of that committee. Arbitrator 35.4 (1) Where parties commence negotiations with respect to a fish species, those parties shall, not later than 60 days before the expected opening date of the fishery for that species recommend to the minister, in writing, a person to be an arbitrator to, where called upon, arbitrate a matter under negotiation.(2) Where a person is recommended to the minister as an arbitrator under subsection (1), the minister shall immediately upon receiving that recommendation, appoint that person as the arbitrator. (3) An arbitrator appointed under subsection (2) shall not be a party to the negotiations or, where there is a collective agreement in place, a party to the collective agreement from which an issue arose to give rise to the negotiations. (4) When an arbitrator is appointed under this section, the facilitator shall inform the arbitrator of the facts and issues that pertain to the negotiations. Default 35.5 (1) Where parties to negotiations fail to recommend a facilitator under section 35.3 or fail to recommend an arbitrator under section 35.4, those parties shall, not later than 60 days before the expected opening date of the fishery to which those negotiations apply, agree upon and appoint a person who is not a party to the negotiations to make those recommendations to the minister.(2) A person appointed under subsection (1) shall make the recommendations to the minister under sections 35.3 and 35.4 that are required by the parties under those sections. (3) Where the parties to negotiations fail to make the appointment required under subsection (1), the minister shall appoint a facilitator under section 35.3 and an arbitrator under section 35.4 where the required recommendations for a facilitator and an arbitrator had been made by the parties under those sections. (4) Where the parties fail to establish a negotiation schedule under section 35.2 within the time required under that section, the minister shall establish a negotiation schedule as required by that section. Agreements not to be altered 35.6 Where parties are engaged in collective bargaining or have entered into a collective agreement under this Act, those parties shall not alter(a) the rates of pay for a fish species; and (b) other terms or conditions of a collective agreement, in place for that fishing season or a previous fishing season, except in accordance with sections 35.1 to 35.9 and where (c) a new collective agreement; or (d) a decision of an arbitrator appointed under section 35.4 or 35.5, is made with respect to the rates of pay and terms or conditions referred to at paragraphs (a) and (b). Arbitration 35.7 (1) Where there are negotiations between parties with respect to the fishery for a fish species and agreement is not reached by those parties not later than 14 days before the expected commencement of that fishery, those parties shall each submit a final position on prices for a fish species and on other matters to the arbitrator appointed with respect to those negotiations.(2) Where final positions have been submitted to an arbitrator under subsection (1), he or she shall hear and consider those positions and shall make a decision with respect to the matter and that decision shall be in accordance with one of the final positions submitted under subsection (1) unless the parties who submitted those positions have agreed to another form of arbitration. (3) Parties to negotiations shall determine by agreement at the commencement of those negotiations whether or not final offer selection, the process referred to in subsections (1) and (2), is to be the form of arbitration used or if another form of arbitration is acceptable. (4) The arbitrator shall notify all parties to the negotiations of his or her decision not later than 7 days after receiving the final positions submitted under subsection (2). (5) Where a decision of an arbitrator made under subsection (2) provides for an interim price for a fish species rather than a full season price, the parties in negotiation over that price shall continue to attempt to reach an agreement with respect to the full season price until not later than 14 days before the expiry date for the interim price at which time the parties shall submit their final positions on the matter to the arbitrator who shall decide upon the matter and shall notify the parties of his or her decision not later than 7 days before the expiry of the interim price. (6) A decision of an arbitrator made under this section shall be considered to be a decision made in accordance with a collective agreement. Auction 35.8 (1) Where an auction system is established for the sale of fish species by fishers the sale price achieved by the auction process for a fish species shall be considered to be the price agreed upon for that fish species by the fisher who sells the fish and the buyer of that fish by collective agreement.(2) A fish species offered for auction under subsection (1) may be offered for a price other than a price agreed upon by collective agreement or a price decided upon by an arbitrator under section 35.7. (3) Where a fish species is auctioned in accordance with this section, the auctioneer shall deduct from the money received for the sale of that fish an amount equivalent to the dues owing to the appropriate certified bargaining agent and shall remit that amount of money to that agent. Binding where majority 35.9 (1) Where, under a collective agreement, a certified bargaining agent intends to negotiate a price for a fish species, that agent shall notify operators in the province which process that species of the intended negotiations.(2) Where a certified bargaining agent enters into a collective agreement with respect to the price of a fish species or where the price of a fish species is decided upon by an arbitrator under section 35.7 and that collective agreement or decision is binding upon the operators who processed more than one-half of the total weight of that fish species in the previous year, the terms of the collective agreement entered into or an arbitrator's decision with respect to that fish species shall apply to and is binding upon all operators in the province who process that fish species. (3) Notwithstanding subsection (2), an operator who is not bound by a collective agreement and is not subject to an arbitrator's decision with respect to the price of a fish species may negotiate with a certified bargaining agent to establish a price for a fish species which is not the same as the price for that fish species established under subsection (2). Precedence 35.10 Sections 35.1 to 35.9 shall have precedence over a term of a collective agreement or another provision of this Act which conflicts with one or more of sections 35.1 to 35.9.Prohibition 35.11 Notwithstanding another section of this Act, there shall not be a stoppage or cessation of business dealings between fishers and operators and operators shall not declare a lockout of fishers while sections 35.1 to 35.12 are in force.Review 35.12 Sections 13.1 to 13.7 and 35.1 to 35.11 and negotiations and arbitration carried out under those sections shall be reviewed by the minister and persons whom the minister considers appropriate who are involved in negotiations and arbitration under those sections by not later than December 31, 1998.Abeyance and commencement 4. (1) Sections 23, 26, 27 and 28 of the Fishing Industry Collective Bargaining Act shall be considered not to be in force from January 1, 1998 until December 31, 1999. (2) Section 3 of this Act is considered to have come into force on January 1, 1998 and shall cease to be in force on January 1, 2000. ©Earl G. Tucker, Queen's Printer |