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|
Amendments
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| Parties may
amend
|
118. Nothing in this Part prohibits parties
from amending any provision of a collective
agreement, other than a provision relating to
its term.
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| Application of
Division
|
119. This Division applies to the employer
and the bargaining agent for a bargaining unit
when the process for the resolution of a
dispute applicable to the bargaining unit is
conciliation.
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| Employer
determines
levels of
service
|
120. The employer has the exclusive right
to determine the level at which an essential
service is to be provided to the public, or a
segment of the public, at any time, including
the extent to which and the frequency with
which the service is to be provided. Nothing in
this Division is to be construed as limiting that
right.
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| Proportion of
duties may
vary during
strike
|
121. (1) For the purpose of identifying the
number of positions that are necessary for the
employer to provide an essential service, the
employer and the bargaining agent may agree
that some employees in the bargaining unit
will be required by the employer to perform
their duties that relate to the provision of the
essential service in a greater proportion during
a strike than they do normally.
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| Determination
of number of
necessary
employees
|
(2) For the purposes of subsection (1), the
number of employees in the bargaining unit
that are necessary to provide the essential
service is to be determined
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|
(a) without regard to the availability of
other persons to provide the essential
service during a strike; and
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|
(b) on the basis that the employer is not
required to change, in order to provide the
essential service during a strike, the manner
in which the employer operates normally,
including the normal hours of work, the
extent of the employer's use of overtime
and the equipment used in the employer's
operations.
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| Obligation to
negotiate
|
122. (1) If the employer has given to the
bargaining agent a notice in writing that the
employer considers that employees in the
bargaining unit occupy positions that are
necessary for the employer to provide
essential services, the employer and the
bargaining agent must make every reasonable
effort to enter into an essential services
agreement as soon as possible.
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| Timing
|
(2) The notice may be given at any time but
not later than 20 days after the day a notice to
bargain collectively is given.
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| Application to
the Board
|
123. (1) If the employer and the bargaining
agent are unable to enter into an essential
services agreement, either of them may apply
to the Board to determine any unresolved
matter that may be included in an essential
services agreement. The application may be
made at any time but not later than
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|
|
|
(a) 15 days after the day a request for
conciliation is made by either party; or
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|
|
(b) 15 days after the day the parties are
notified by the Chairperson under
subsection 163(2) of his or her intention to
recommend the establishment of a public
interest commission.
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| Delay
|
(2) The Board may delay dealing with the
application until it is satisfied that the
employer and the bargaining agent have made
every reasonable effort to enter into an
essential services agreement.
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| Powers of
Board
|
(3) After considering the application, the
Board may determine any matter that the
employer and the bargaining agent have not
agreed on that may be included in an essential
services agreement and make an order
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|
|
(a) deeming the matter determined by it to
be part of an essential services agreement
between the employer and the bargaining
agent; and
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|
|
(b) deeming that the employer and the
bargaining agent have entered into an
essential services agreement.
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| Restriction
|
(4) The order may not require the employer
to change the level at which an essential
service is to be provided to the public, or a
segment of the public, at any time, including
the extent to which and the frequency with
which the service is to be provided.
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|
| Proportion of
duties may
vary during
strike
|
(5) The Board may, for the purpose of
identifying the number of positions that are
necessary for the employer to provide an
essential service, take into account that some
employees in the bargaining unit may be
required by the employer to perform those of
their duties that relate to the provision of the
essential service in a greater proportion during
a strike than they do normally.
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| Determination
of number of
necessary
employees
|
(6) For the purposes of subsection (5), the
number of employees in the bargaining unit
that are necessary to provide the essential
service is to be determined
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|
|
(a) without regard to the availability of
other persons to provide the essential
service during a strike; and
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|
|
(b) on the basis that the employer is not
required to change, in order to provide the
essential service during a strike, the manner
in which the employer operates normally,
including the normal hours of work, the
extent of the employer's use of overtime
and the equipment used in the employer's
operations.
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|
| Application
relating to
specific
position
|
(7) If the application relates to a specific
position to be identified in the essential
services agreement, the employer's proposal
in respect of the position is to prevail, unless
the position is determined by the Board not to
be of the type necessary for the employer to
provide essential services.
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|
| Coming into
force of
agreement
|
124. The essential services agreement
comes into force on the day it is signed by the
parties or, in the case of an essential services
agreement that the employer and the
bargaining agent are deemed to have entered
into by an order made under paragraph
123(3)(b), the day the order was made.
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|
| Duration
|
125. An essential services agreement
continues in force until the parties jointly
determine that there are no employees in the
bargaining unit who occupy positions that are
necessary for the employer to provide
essential services.
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|
| Notice to
negotiate
amendment
|
126. (1) If a party to an essential services
agreement gives a notice in writing to the
other party that the party giving the notice
seeks to amend the essential services
agreement, the parties must make every
reasonable effort to amend it as soon as
possible.
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| Timing
|
(2) If a collective agreement or arbitral
award is in force, the notice may be given at
any time except that, if a notice to bargain
collectively has been given with a view to
renewing or revising the collective
agreement, the notice may only be given
during the 60 days following the day the notice
to bargain collectively was given.
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|
| Application to
Board
|
127. (1) If the employer and the bargaining
agent are unable to amend the essential
services agreement, either of them may apply
to the Board to amend the essential services
agreement. The application may be made at
any time but not later than
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|
|
(a) 15 days after the day a request for
conciliation is made by either party; or
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|
|
(b) 15 days after the day the parties are
notified by the Chairperson under
subsection 163(2) of his or her intention to
recommend the establishment of a public
interest commission.
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|
| Delay
|
(2) The Board may delay dealing with the
application until it is satisfied that the
employer and the bargaining agent have made
every reasonable effort to amend the essential
services agreement.
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|
| Amendment
by Board
|
(3) The Board may, by order, amend the
essential services agreement if it considers
that the amendment is necessary for the
employer to provide essential services.
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|
| Restriction
|
(4) The order may not require the employer
to change the level at which an essential
service is to be provided to the public, or a
segment of the public, at any time, including
the extent to which and the frequency with
which the service is to be provided.
|
|
| Proportion of
duties may
vary during
strike
|
(5) The Board may, for the purpose of
identifying the number of positions that are
necessary for the employer to provide an
essential service, take into account that some
employees in the bargaining unit may be
required by the employer to perform their
duties that relate to the provision of the
essential service in a greater proportion during
a strike than they do normally.
|
|
| Determination
of number of
necessary
employees
|
(6) For the purposes of subsection (5), the
number of employees in the bargaining unit
that are necessary to provide the essential
service is to be determined
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|
|
|
(a) without regard to the availability of
other persons to provide the essential
service during a strike; and
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|
|
(b) on the basis that the employer is not
required to change, in order to provide the
essential service during a strike, the manner
in which the employer operates normally,
including the normal hours of work, the
extent of the employer's use of overtime
and the equipment used in the employer's
operations.
|
|
| Application
relating to
specific
position
|
(7) If the application relates to a specific
position to be identified in the essential
services agreement, the employer's proposal
in respect of the position is to prevail, unless
the position is determined by the Board not to
be of the type necessary for the employer to
provide essential services.
|
|
| Coming into
force of
amendment
|
128. An amendment to an essential services
agreement comes into force on the day the
agreement containing the amendment is
signed by the parties or, in the case of an
amendment made by order of the Board under
subsection 127(3), the day the order was
made.
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|
| Replacement
positions
|
129. (1) If, at any time while an essential
services agreement is in force, a position
identified in it becomes vacant, the employer
may identify a position of the same type as a
replacement position. If the employer does so,
the employer must file a notice of replacement
with the Board and provide a copy to the
bargaining agent.
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|
| Effect of
notice
|
(2) On the filing of the notice, the
replacement position is deemed to be a
position identified in the essential services
agreement and the position it replaced is
deemed to be no longer identified.
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|
| Notification
of employees
|
130. (1) The employer must provide every
employee who occupies a position that has
been identified in an essential services
agreement as being a position that is necessary
for the employer to provide essential services
with a notice informing the employee that the
employee occupies such a position.
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|
| Notification
of change
|
(2) A notice given under this section
remains valid so long as the employee
continues to occupy the position unless the
employer notifies the employee that the
position occupied by the employee is no
longer necessary for the employer to provide
essential services.
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|
| Emergency
application
|
131. Despite any provision in this Division,
if either the employer or the bargaining agent
is of the opinion that a temporary amendment
to an essential services agreement, or its
suspension, is necessary because of an
emergency but the parties are unable to agree
to do so, either of them may, at any time, apply
to the Board for an order temporarily
amending, or suspending, the agreement.
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|
| Duty to
observe terms
and
conditions
|
132. Unless the parties otherwise agree,
every term and condition of employment
applicable to employees in a bargaining unit in
respect of which a notice to bargain
collectively is given that may be included in
a collective agreement and that is in force on
the day the notice is given remains in force in
respect of any employee who occupies a
position that is identified in an essential
services agreement and must be observed by
the employer, the bargaining agent for the
bargaining unit and the employee until a
collective agreement is entered into.
|
|
| Extension of
time
|
133. The Board may, on the application of
either party, extend any period referred to in
this Division.
|
|
| Filing of
essential
services
agreement
|
134. Either party to an essential services
agreement may file a copy of it with the Board.
When filed, it has the same effect as an order
of the Board.
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|
|
|
|
|
|
|
|
|
|
|
Application of Division
|
|
| Application
|
135. This Division applies to the employer
and the bargaining agent for a bargaining unit
whenever
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|
|
|
(a) the process for the resolution of a dispute
applicable to the bargaining unit is
arbitration; and
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|
|
(b) the parties have bargained in good faith
with a view to entering into a collective
agreement but are unable to reach
agreement on a term or condition of
employment that may be included in an
arbitral award.
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|
|
|
Request for Arbitration
|
|
| Request for
arbitration
|
136. (1) Either party may, by notice in
writing to the Chairperson, request arbitration
in respect of any term or condition of
employment that may be included in an
arbitral award.
|
|
| When request
may be made
|
(2) The request may be made
|
|
|
|
(a) at any time, if the parties have not
entered into a collective agreement and no
request for arbitration has been made by
either party since the commencement of the
bargaining; or
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|
|
|
(b) not later than seven days after a
collective agreement is entered into by the
parties, in any other case.
|
|
| Contents of
notice
|
(3) The party requesting arbitration must
|
|
|
|
(a) specify in the notice every term or
condition of employment in respect of
which it requests arbitration and its
proposals concerning the award to be made
in respect of that term or condition; and
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|
|
|
(b) annex to the notice a copy of the most
recent collective agreement entered into by
the parties.
|
|
| Notice to
other party
|
(4) On receiving the notice, the Chairperson
must send a copy to the other party.
|
|
| Request for
arbitration of
additional
matters
|
(5) The other party may, within seven days
after receiving the copy, by notice in writing
to the Chairperson, request arbitration in
respect of any other term or condition of
employment that may be included in an
arbitral award and that remained in dispute
when the first request for arbitration was
made.
|
|
| Notice to
include
proposal
|
(6) The party making the request under
subsection (5) must specify in the notice its
proposal concerning the award to be made in
respect of every term or condition of
employment in respect of which it requests
arbitration.
|
|
|
|
Establishment of Arbitration Board
|
|
| Establishment
|
137. (1) On receiving a request for
arbitration, the Chairperson must establish an
arbitration board for arbitration of the matters
in dispute.
|
|
| Delay
|
(2) The Chairperson may delay establishing
an arbitration board until he or she is satisfied
that the party making the request has
bargained sufficiently and seriously with
respect to the matters in dispute.
|
|
| Constitution
|
138. The arbitration board consists of either
a single member or three members, appointed
in accordance with section 139 or 140, as the
case may be.
|
|
| Board with
single
member
|
139. If the parties jointly recommend the
appointment of a person to be an arbitration
board consisting of a single member, the
Chairperson must appoint the person to be the
arbitration board.
|
|
| Board with
three
members
|
140. (1) If either party requests that an
arbitration board consisting of three members
be established, the Chairperson must, by
notice, require each of the parties, within
seven days after receipt of the notice, to
nominate a person to be a member of the
arbitration board, and on receipt of the
nominations, the Chairperson must appoint
the nominated persons as members of the
arbitration board.
|
|
| Failure to
nominate
|
(2) If a party fails to nominate a person
within the time provided for in subsection (1)
or nominates a person who is not eligible for
appointment, the Chairperson must appoint as
a member of the arbitration board a person
whom he or she considers suitable, and that
person is deemed to have been appointed on
the nomination of that party.
|
|
| Appointment
of chairperson
nominated by
parties
|
(3) Within five days after the day on which
the second member is appointed, the two
members must nominate a third person who is
eligible for appointment and ready and willing
to act, to be chairperson and third member of
the arbitration board, and the Chairperson
must appoint that person as the chairperson
and third member of the arbitration board.
|
|
| Failure to
nominate
|
(4) If the two members fail to make a
nomination under subsection (3) or they
nominate a person who is not eligible for
appointment, the Chairperson must, without
delay, appoint as the chairperson and third
member of the arbitration board a person
whom he or she considers suitable.
|
|
| Eligibility
|
141. No person may act as a member of an
arbitration board in respect of a matter
referred to arbitration if the person has, at any
time during the six months before the person's
date of appointment, acted in respect of any
matter concerning employer-employee
relations as counsel or agent of the employer
or of any employee organization that has an
interest in the matter referred to arbitration.
|
|
| Notification
of
establishment
|
142. (1) The Chairperson must, without
delay, notify the parties of the establishment
of the arbitration board and of the name or
names of its member or members, as the case
may be.
|
|
| Effect of
notification
|
(2) The notification constitutes conclusive
proof that the arbitration board has been
established in accordance with this Part and,
after it is given, no order may be made or
process entered into, and no proceedings may
be taken in any court, to question the
establishment of the board or to review,
prohibit or restrain any of its proceedings.
|
|
| Death,
incapacity or
resignation of
single
member
|
143. (1) In the event of the death, incapacity
or resignation of the member of an arbitration
board that consists of a single member before
the arbitration board makes an arbitral award,
the Chairperson must appoint another person
in accordance with section 139. That person
must recommence the arbitration proceedings
from the beginning.
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|