: Client Update - First contract bill introduced for N.S. unions, employers

November 18, 2011

On Thursday, November 17, 2011 the government introduced Bill No. 102, “An Act to prevent unnecessary labour disruptions and protect the economy”.  If passed, Bill No. 102 would provide for first contract arbitration (FCA) in Nova Scotia.

Prior to introducing Bill No. 102, the government sought input from the labour management review committee (LMRC).  After hearing representations from both unionized and non-unionized employers in Nova Scotia, the LMRC reported a lack of consensus on the need for first contract legislation.  Despite the lack of recommendation from the LMRC, government has elected to proceed with first contract legislation.

Model proposed

In large part, Bill No. 102 follows the Manitoba Labour Relations Act, the only model in Canada which does not require a determination that a party has bargained in bad faith or that there is a dysfunctional bargaining relationship before FCA is available.  As proposed, Bill No. 102 would provide:

  • Either party can apply for the appointment of a conciliator within 21 days from the date of certification (existing Section 37).

  • The conciliator has between 90 days and 120 days from the date of appointment to assist the parties in concluding a first collective agreement.

  • If the conciliator is unable to assist the parties in concluding a first collective agreement and so advises the Labour Board (board) (or 120 days have expired since the conciliator’s appointment) and 90 days have expired since the certification, either party can apply to the board to settle the first collective agreement.

  • Within 60 days from date of application an arbitrator (agreed upon by the parties) will settle the first collective agreement or it will be determined by the board (the board can extend that period a further 30 days).

  • Any strike or lockout ongoing at the time of application must end immediately unless the parties otherwise agree and employees will be reinstated on the basis of seniority (subject to the board otherwise providing to allow a totally shutdown workplace to resume normal operations).

  • In settling the first collective agreement the board or arbitrator may take into account:
    (a)terms and conditions in negotiated collective agreements for employees performing the same or similar functions in the same or similar circumstances; and
    (b)such other matters as the board or arbitrator considers fair and reasonable in the circumstances.

  • A first collective agreement will last for one year from the date it is settled.
The only substantive change in Bill No. 102 from the Manitoba legislation is that a conciliator will contact the parties within 14 days after certification to provide information and education on the collective bargaining process.

Other models in Canada
As noted above, Manitoba is the only jurisdiction in Canada which does not provide for some form of “fault” before FCA can be invoked.  By way of summary:

  1. No legislation:  Currently there are no FCA provisions in Nova Scotia, New Brunswick, Prince Edward Island and Alberta;

  2. Dysfunctional bargaining – apply to labour board:   Legislation in Ontario and Saskatchewan requires evidence of “dysfunctional bargaining” before the board can either settle the collective agreement or appoint an arbitrator by agreement of the parties.  By way of example, the Ontario legislation requires a finding that bargaining was unsuccessful because of:

    (a)The employer’s refusal to recognize the union’s bargaining authority;
    (b)The uncompromising nature of a bargaining position adopted by a party without reasonable justification;
    (c)The failure of a party to make reasonable or expeditious efforts to conclude a collective agreement; or
    (d)Any other reason considered relevant by the board;
  3. Dysfunctional bargaining – apply to minister of labour:  The Canada Labour Code (federal) and the Provinces of Quebec and Newfoundland and Labrador require evidence that the parties are at a bargaining impasse, bargaining is not productive or there has been bad faith bargaining before an application for FCA can be made; and

  4. Mediation supported:  In British Columbia either party can apply for mediation where there is a bargaining impasse and a strike vote has been passed.  The mediator then works with the parties to reach an agreement.  If an agreement is not reached an Arbitrator can decide to refer the matter to binding arbitration, resolve small issues or allow a work stoppage to take place.

What does this mean for you?

The reality of FCA is that a third party can decide the terms and conditions that will govern the workplace, including wages.  With its good labour relations climate, Nova Scotia has no need for FCA.  The current provisions in the Trade Union Act continue to be effective in resolving issues with both first contract negotiations and subsequent collective bargaining.  FCA will create risks and uncertainty for existing and future employers in Nova Scotia.

Next steps

Bill No. 102 will now proceed to second reading in the house of assembly.  It is anticipated that given its majority, the government will ensure that the legislation is then referred to the law amendments committee.  Members of the public can then make formal submissions on the form and specifics of the binding arbitration model in Bill No. 102.  If you have any questions about this bill or would like our assistance at law amendments, please call one of the members of our Labour & Employment practice group.

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