| Vacancy -
board with
three
members
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(2) If a vacancy occurs in the membership
of an arbitration board that consists of three
members before the arbitration board makes
an arbitral award, the vacancy must be filled
by the Chairperson by appointment in the
manner provided in section 140 for the
selection of the person in respect of whom the
vacancy arose.
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Referral to Arbitration
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| Referral to
arbitration
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144. (1) Subject to section 150, after
establishing the arbitration board, the
Chairperson must without delay refer the
matters in dispute to the board.
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| Subsequent
agreement
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(2) If, before an arbitral award is made, the
parties reach agreement on any matter in
dispute that is referred to arbitration and enter
into a collective agreement in respect of that
matter, that matter is deemed not to have been
referred to the arbitration board and no arbitral
award may be made in respect of it.
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Duty and Powers
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| Assistance to
parties
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145. As soon as possible after being
established, the arbitration board must
endeavour to assist the parties to the dispute in
entering into or revising a collective
agreement.
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| Procedure
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146. (1) Except as otherwise provided in
this Part, the arbitration board may determine
its own procedure, including the date, time
and place of its proceedings, but both parties
must be given a full opportunity to present
evidence and make representations.
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| Quorum and
absence of
members
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(2) The chairperson of the arbitration board
and one other member constitute a quorum in
the case of an arbitration board consisting of
three members but, in the absence of a
member at any proceedings of the board, the
other members may not proceed unless the
absent member has been given reasonable
notice of the proceedings.
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| Powers
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147. (1) The arbitration board has all the
powers of the Board set out in paragraphs
40(1)(a), (d), (e) and (h) to (j).
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| Delegation
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(2) The arbitration board may authorize any
person to exercise any of its powers set out in
paragraphs 40(1)(d), (e), (i) and (j) and require
that person to report to it on the exercise of
those powers.
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| Factors to be
considered
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148. In the conduct of its proceedings and in
making an arbitral award, the arbitration
board must take into account the following
factors, in addition to any other factors that it
considers relevant:
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(a) the necessity of attracting competent
persons to, and retaining them in, the public
service in order to meet the needs of
Canadians;
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(b) the necessity of offering compensation
and other terms and conditions of
employment in the public service that are
comparable to those of employees in
similar occupations in the private and
public sectors, including any geographic,
industrial or other variations that the
arbitration board considers relevant;
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(c) the need to maintain appropriate
relationships with respect to compensation
and other terms and conditions of
employment as between different
classification levels within an occupation
and as between occupations in the public
service;
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(d) the need to establish compensation and
other terms and conditions of employment
that are fair and reasonable in relation to the
qualifications required, the work
performed, the responsibility assumed and
the nature of the services rendered; and
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(e) the state of the Canadian economy and
the Government of Canada's fiscal
circumstances.
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Making of Arbitral Award
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| Making of
arbitral award
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149. (1) The arbitration board must make an
arbitral award as soon as possible in respect of
all the matters in dispute that are referred to it.
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| Award to be
signed
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(2) The arbitral award must be signed by the
chairperson of the arbitration board, or by the
single member, as the case may be, and a copy
must be sent to the Chairperson.
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| Award not to
require
legislative
implementatio
n
|
150. (1) The arbitral award may not,
directly or indirectly, alter or eliminate any
existing term or condition of employment, or
establish any new term or condition of
employment, if
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(a) doing so would require the enactment or
amendment of any legislation by
Parliament, except for the purpose of
appropriating money required for the
implementation of the term or condition;
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(b) the term or condition is one that has been
or may be established under the Public
Service Employment Act, the Public Service
Superannuation Act or the Government
Employees Compensation Act;
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(c) the term or condition relates to
standards, procedures or processes
governing the appointment, appraisal,
promotion, deployment, rejection on
probation or lay-off of employees;
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(d) in the case of a separate agency, the term
or condition relates to termination of
employment, other than termination of
employment for a breach of discipline or
misconduct; or
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(e) doing so would affect the organization of
the public service or the assignment of
duties to, and the classification of, positions
and persons employed in the public service.
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| Matters not
negotiated
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(2) The arbitral award may not deal with a
term or condition of employment that was not
the subject of negotiation between the parties
during the period before arbitration was
requested.
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| Decision of
majority
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151. (1) If the arbitration board consists of
three members, a decision of a majority of the
members in respect of the matters in dispute is
a decision of the board on those matters and is
the arbitral award in respect of those matters.
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| Decision
where
majority
cannot agree
|
(2) If a majority of members of the
arbitration board cannot agree in respect of the
matters in dispute, the decision of the
chairperson of the board is the arbitral award
in respect of those matters.
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| Form of
award
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152. The form of the arbitral award must,
wherever possible, permit the award to be
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(a) read and interpreted with, or annexed to
and published with, a collective agreement
dealing with other terms and conditions of
employment of the employees in the
bargaining unit in respect of which the
arbitral award applies; and
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(b) incorporated into and implemented by
any instrument that may be required to be
made by the employer or the relevant
bargaining agent in respect of the arbitral
award.
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| Copy sent to
parties
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153. On receipt of a copy of the arbitral
award, the Chairperson must, without delay,
send a copy to the parties and may cause the
award to be published in any manner that the
Chairperson considers appropriate.
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Duration and Operation of Arbitral Award
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| Binding effect
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154. Subject to and for the purposes of this
Part, as of the day on which it is made, the
arbitral award binds the employer and the
bargaining agent that are parties to it and the
employees in the bargaining unit in respect of
which the bargaining agent has been certified.
To the extent that it deals with matters referred
to in section 12 of the Financial
Administration Act, the arbitral award is also
binding, on and after that day, on every deputy
head responsible for any portion of the federal
public administration that employs employees
in the bargaining unit.
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| When arbitral
award has
effect
|
155. (1) The arbitral award has effect as of
the day on which it is made or, subject to
subsection (2), any earlier or later day that the
arbitration board may determine.
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| Limitation on
retroactive
effect
|
(2) The arbitral award or any of its parts may
be given retroactive effect, but not earlier than
the day notice to bargain collectively was
given.
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| Effect on
previous
collective
agreement or
award
|
(3) If a provision of an arbitral award is to
have retroactive effect, the provision
displaces, for the retroactive period specified
in the arbitral award, any term or condition of
any previous collective agreement or arbitral
award with which it is in conflict.
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| Term of
arbitral award
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156. (1) The arbitration board must
determine the term of the arbitral award and
set it out in the arbitral award.
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| Factors
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(2) In determining the term of an arbitral
award, the arbitration board must take the
following into account:
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(a) if a collective agreement applicable to
the bargaining unit is in force or has been
entered into but is not yet in force, the term
of that collective agreement; or
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(b) if no collective agreement applying to
the bargaining unit has been entered into,
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(i) the term of any previous collective
agreement that applied to the bargaining
unit, or
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(ii) the term of any other collective
agreement that it considers relevant.
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| Limitation on
term
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(3) An arbitral award may not be for a term
of less than one year or more than two years
from the day on which it becomes binding on
the parties, unless the arbitration board
determines otherwise in any case where
paragraph (2)(a) or (b) applies.
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Implementation
|
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| Duty to
implement
provisions of
the arbitral
award
|
157. Subject to the appropriation by or
under the authority of Parliament of any
money that may be required by the employer,
the parties must implement the provisions of
the arbitral award within 90 days after the day
on which the award becomes binding on them
or within any longer period that the parties
may agree to or that the Board, on application
by either party, may set.
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Matters Not Dealt With
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| Reference of
matters not
dealt with
|
158. Any party that considers that the
arbitration board has failed to deal with a
matter in dispute that was referred to
arbitration may, within seven days after the
day on which the arbitral award is made, refer
the matter back to the arbitration board which
must then deal with it.
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Amendment
|
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| Amendment
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159. The Board may, on the joint
application of both parties to whom an arbitral
award applies, amend any provision of the
arbitral award if it considers that the
amendment is warranted having regard to
circumstances that have arisen since the
making of the arbitral award, or of which the
arbitration board did not have notice when the
award was made, or to any other
circumstances that the Board considers
relevant.
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Application of Division
|
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| Application
|
160. 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
conciliation; 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 a
collective agreement.
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Request for Conciliation
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| Request for
conciliation
|
161. (1) Either party may, by notice in
writing to the Chairperson, request
conciliation in respect of any term or
condition of employment that may be
included in a collective agreement.
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| Contents of
notice
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(2) The party requesting conciliation must
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(a) specify in the notice the terms or
conditions of employment in respect of
which it requests conciliation, and its
proposals concerning the report 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.
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| Notice to
other party
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(3) On receiving the notice, the Chairperson
must send a copy to the other party.
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| Request for
conciliation of
additional
matters
|
(4) The other party may, within seven days
after receiving the copy, by notice in writing
to the Chairperson, request conciliation in
respect of any other term or condition of
employment that may be included in a
collective agreement and that remained in
dispute when the first request for conciliation
was made.
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| Notice to
include
proposal
|
(5) The party making the request under
subsection (4) must specify in the notice its
proposal concerning the report to be made in
respect of the term or condition of
employment in respect of which it requests
conciliation.
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Establishment of Public Interest
Commission
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| Recommendat
ion to
establish
|
162. (1) Subject to subsection (3), on
receiving a request for conciliation, the
Chairperson must recommend to the Minister
that a public interest commission be
established for conciliation of the matters in
dispute.
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| Delay
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(2) The Chairperson may delay
recommending the establishment of a public
interest commission until satisfied that the
party making the request has bargained
sufficiently and seriously with respect to the
matters in dispute.
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| Refusal
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(3) If the Chairperson considers, after
consultation with each of the parties, that the
establishment of a public interest commission
is unlikely to assist them in reaching
agreement, the Chairperson must, without
delay, notify the parties in writing that he or
she will not recommend the establishment of
such a commission.
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| Chairperson's
initiative
|
163. (1) The Chairperson may, on his or her
own initiative, recommend to the Minister
that a public interest commission be
established for the conciliation of a dispute if
he or she considers that establishing one might
assist the parties in reaching agreement and
that the parties are unlikely to reach
agreement otherwise.
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| Notice
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(2) Before acting under subsection (1), the
Chairperson must notify the parties of his or
her intention to do so.
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| Constitution
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164. (1) The public interest commission
consists of either a single member appointed
in accordance with section 166 or, subject to
subsection (2), three members, appointed in
accordance with section 167.
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| Request for
commission
of three
members
|
(2) The public interest commission is to
consist of three members only if one of the
parties requests it.
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| List
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165. (1) For the purposes of sections 166
and 167, the Chairperson must, after
consultation with the parties, prepare a list of
names of persons who could be selected to act
as a public interest commission that consists
of a single member, or as the chairperson of a
public interest commission that consists of
three members.
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| Contents
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(2) The list must set out
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(a) the names of all eligible persons jointly
recommended by the parties; and
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(b) if the Chairperson is of the opinion that
the parties have not jointly recommended a
sufficient number of persons, the names of
any other eligible persons whom the
Chairperson considers suitable.
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| Commission
with single
member
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166. (1) If the public interest commission is
to consist of a single member, the Chairperson
must submit to the Minister the list prepared
under subsection 165(1). The Chairperson
may, at his or her discretion, also recommend
the appointment of a particular person named
in the list.
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| Appointment
|
(2) After receiving the list, the Minister
must, without delay, appoint a person named
in the list.
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| Commission
with three
members
|
167. (1) If either party requests that the
public interest commission consist of three
members, the Chairperson must, by notice,
require each of the parties, within seven days
of its receipt, to nominate a person to be a
member of the commission, and on receipt of
the nominations, the Chairperson must
recommend to the Minister the appointment
of the nominated persons as members of the
commission. The Minister must appoint those
persons without delay.
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| 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
recommend to the Minister the appointment
as a member of the public interest commission
of a person whom he or she considers suitable.
The Minister must appoint the person without
delay and that person is deemed to have been
appointed on the nomination of that party.
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| 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 to be chairperson and
third member of the public interest
commission a person from the list prepared
under subsection 165(1), and the Chairperson
must recommend to the Minister the
appointment of that person. The Minister must
appoint the person without delay as
chairperson and third member of the
commission.
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| Failure to
nominate
|
(4) If the two members fail to make a
nomination under subsection (3), the
Chairperson must, without delay, submit to
the Minister the list prepared under subsection
165(1). The Chairperson may, at his or her
discretion, also recommend to the Minister the
appointment of a particular person named in
the list as the chairperson and third member of
the public interest commission.
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| Appointment
|
(5) After receiving the list, the Minister
must, without delay, appoint a person named
in the list as the chairperson and third member
of the public interest commission.
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