Third Session, 45th General Assembly
55 Elizabeth II, 2006
AN ACT TO AMEND THE
Received and Read the First Time...................................................................................................
HONOURABLE PAUL SHELLEY
Minister of Human Resources, Labour and Employment
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Labour Relations Act.
Clause 1 of the Bill would amend the Act to provide that the appointment of a member of the Labour Relations Board continues until he or she is reappointed or replaced.
Clause 2 of the Bill would amend the Act to provide for circumstances in which the chairperson or the vice-chairperson of the Labour Relations Board may hear a matter referred to the board, instead of a panel of the board.
Clause 3 of the Bill would amend the Act to permit the board to expand the use of pre-hearing procedures by the board.
Clause 4 of the Bill would amend the Act to impose a time limit within which an application may be made to the board for a reconsideration of a matter decided by the board. The board would have discretion to extend the time period.
Clause 5 of the Bill would amend the Act to give the board the authority to review the composition of a bargaining unit.
Clause 6 of the Bill would amend the Act to provide that a party to a proceeding before the board may file a copy of the board's directive with the Trial Division to facilitate its enforcement. Currently subsection 123(6) of the Act provides for the filing of a directive by the board. Clause 12 of the Bill would repeal subsection 123(6).
Clauses 7, 9 and 10 of the Bill would amend the Act to provide that the board has discretion whether to hold a hearing in circumstances where the board is currently required by the Act to hold a hearing.
Clause 8 of the Bill would amend the Act to require the board to conduct a vote where an application is made to it to terminate the bargaining rights of a bargaining agent that was voluntarily recognized by an employer. Currently the board is only required to conduct such a vote where a bargaining agent has been certified for a bargaining unit.
The clause would also provide that the board may dispense with a vote where the parties concerned jointly request that a vote not be taken.
Clause 11 of the Bill would amend the Act to provide that a complaint may be made to the board by a party to collective bargaining alleging that another party has been bargaining in bad faith notwithstanding a collective agreement currently covering the parties has expired. Currently the board is not authorized to hear such a complaint.
Clause 12 of the Bill would amend the Act to repeal subsection 123(6). This amendment has already been discussed in the note relating to the amendment contained in clause 6.
Clause 13 of the Bill would amend the Act to clarify the board's jurisdiction with respect to complaints that may be made to it that a trade union or representative of a trade union has been acting in a manner that is arbitrary or discriminatory or in bad faith towards an employee in a bargaining unit that it represents. Currently only a complaint of failure to act in good faith may be entertained by the board.
AN ACT TO AMEND THE LABOUR
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
1. Section 6 of the Labour Relations Act is amended by adding immediately after subsection (8) the following:
(9) Where the term of office of a person appointed under subsection (3) or (4) expires, he or she continues to be a member of the board until he or she is reappointed or replaced.
2. (1) Section 9.3 of the Act is amended by adding immediately after subsection (1) the following:
(1.1) The chairperson, or the vice-chairperson, when the matter is referred to him or her by the chairperson, may alone determine a matter that comes before the board with respect to
(a) an uncontested application or question;
(b) notwithstanding the reference to the board in subsection 47(5) or 51.1(4), a request for an extension of time for taking a vote; and
(c) preliminary questions of evidence or procedure.
(2) Section 9.3 of the Act is amended by striking out the brackets and the word and number "subsection (1)" in subsections (2), (3), (4) and (5) and substituting the words, numbers and brackets "subsection (1) or (1.1)".
3. Section 18 of the Act is amended by adding immediately after paragraph (a) the following:
(a.1) order pre-hearing procedures, including pre-hearing conferences;
(a.2) compel, at any stage of a proceeding, a person to provide information or produce the documents or things that may be relevant to a matter before it, after providing the parties an opportunity to make representations;
4. Section 19 of the Act is amended by adding immediately after subsection (2) the following:
(3) An application to the board for the review, rescission, amendment, alteration or variation of an order or decision of the board or a panel under subsection (2) shall be made within 6 months of the making of the original order or decision or the longer period the board considers appropriate in the circumstances.
5. The Act is amended by adding immediately after section 19 the following:
Review of bargaining unit
19.1 (1) On application by an employer or a bargaining agent, the board may review the structure or composition of a bargaining unit to determine whether the bargaining unit continues to be appropriate for collective bargaining or whether it is appropriate to include or exclude positions from the bargaining unit.
(2) For the purpose of subsection (1) the board may
(a) determine which trade union shall be the bargaining agent for the employees in each bargaining unit that results from the review;
(b) amend a certification order or description of a bargaining unit contained in a collective agreement;
(c) where more than one collective agreement applies to employees in a bargaining unit, decide which collective agreement is in force;
(d) amend, to the extent that the board considers necessary, the provisions of collective agreements;
(e) where the conditions of section 98 have been met with respect to some of the employees in a bargaining unit, decide which terms and conditions of employment apply to those employees until the time that a collective agreement becomes applicable to the unit or the conditions of section 98 are met with respect to that unit; and
(f) authorize a party to a collective agreement to give notice to bargain collectively.
(3) Subsection 19(3) does not apply to an application under this section.
6. Subsection 21(3) of the Act is amended by adding immediately after the word and figure "section 18.1" the words and figure "or section 123".
7. Subsection 30(4) of the Act is repealed and the following substituted:
(4) The board shall investigate complaints made to it under subsection (3), and may give to the trade union and the employee concerned an opportunity to be heard and to cross-examine all witnesses not called by him or her.
8. Subsection 51.1(1) of the Act is repealed and the following substituted:
51.1 (1) Where an application
(a) to revoke the certificate of a bargaining agent under paragraph 51(1)(a); or
(a) to terminate the bargaining rights of the bargaining agent under paragraph 51(1)(b)
is supported by not less than 40% of the employees in the unit to which the application relates, the board shall take a vote to determine the wishes of the employees in the unit.
(1.1) Notwithstanding subsection (1), the board is not required to take a vote where the applicant, trade union and the employer in the unit to which the application relates jointly request that the board not take a vote.
9. Section 82 of the Act is repealed and the following substituted:
Presentation of evidence
82. In settling terms and conditions under section 81, the board may give the parties an opportunity to present evidence and make representations, and may take into account
(a) the extent to which the parties have, or have not, bargained in good faith in an effort to conclude a first collective agreement;
(b) terms and conditions of employment negotiated through collective bargaining for comparable employees performing the same or similar functions in the same or related circumstances; and
(c) other matters that the board considers will help it in arriving at terms and conditions that are fair and reasonable in the circumstances.
10. Subsection 89(1) of the Act is repealed and the following substituted:
Questions referred to board
89. (1) Where a question arises in connection with a matter that has been referred to an arbitration board relating to the existence of a collective agreement, or the identification of the parties or employees bound by a collective agreement, the arbitration board may refer the question to the board for a hearing and determination and the board may hold a hearing.
11. Paragraph 122(3)(b) of the Act is repealed and the following substituted:
(b) that a party to collective bargaining is in contravention of section 75.
12. Subsection 123(6) of the Act is repealed.
13. Section 130 of the Act is repealed and the following substituted:
Complaints of employees to board
130. (1) An employee in a bargaining unit, who claims to be aggrieved because his or her bargaining agent has acted in a manner that is arbitrary or discriminatory or in bad faith in the handling of a grievance that he or she has filed or attempted to file with that bargaining agent in accordance with a procedure that has been established by the bargaining agent may make a written complaint to the board.
(2) A complaint made under subsection (1) shall be made within 90 days from the date on which the complainant knew or, in the opinion of the board, ought to have known, of the action or circumstances, giving rise to the complaint.
(3) The board shall investigate a complaint made to it under subsection (1) and determine whether the bargaining agent acted in a manner that was arbitrary or discriminatory or in bad faith.
(4) A provision in this Act or a collective agreement that limits the time in which a grievance or arbitration proceeding shall begin or a decision made does not apply where a matter is referred to the board under this section.
(5) Where, on investigation of a complaint in accordance with subsection (3), the board finds that the bargaining agent acted in a manner that was arbitrary or discriminatory or in bad faith, the board shall direct that bargaining agent to take those steps that the board thinks appropriate in the circumstances.
(6) Where a collective agreement expires before a complaint is made to the board under subsection (1), or where a collective agreement expires before the board completes its investigation, the board may order the bargaining agent to compensate the employee to a reasonable extent that the board may prescribe.
ŠEarl G. Tucker, Queen's Printer