Second Session, 44th General Assembly

49 Elizabeth II, 2000

BILL 5

AN ACT TO AMEND THE

FISHING INDUSTRY

COLLECTIVE BARGAINING ACT

Received and Read the First

Time

Second Reading

Committee

Third Reading

Royal Assent

HONOURABLE OLIVER LANGDON

Minister of Environment and Labour

Ordered to be printed by the

Honourable House of Assembly

EXPLANATORY NOTE

This Bill would amend the Fishing Industry

Collective Bargaining Act to implement a new labour relations

dispute settlement model known as final offer selection. This model

has been the subject of a pilot project and is considered to be an

effective mechanism by government, parties to negotiations and other

industry stakeholders.

A BILL

AN ACT TO AMEND THE FISHING INDUSTRY COLLECTIVE

BARGAINING ACT

Analysis

1. General Amdt.

2. S.2 Amdt.

Definitions

3. S.2.1 Added

Application of certain provisions

4. S.8 R&S

Application for certification

5. S.13 Amdt.

Revocation of certification

6. Ss. 13.1 to 13.7 R&S

13.1 Accreditation as

bargaining agent

13.2 Membership in

accredited processors'

organization

13.3 Expedited

accreditation process

13.4 Prerequisites of

accreditation

13.5 Results of accreditation

13.6 Binding effect

13.7 Revocation

13.8 Result of revocation

13.9 Certain agreements

void

7. S.18 Amdt.

Bargaining committee

8. S.19 Amdt.

Representation of operators

9. S.23 Amdt.

Duration of agreement

10. S.35.1 to 35.12 R&S

35.1

Definitions

35.2 Notice of and

schedule for

negotiations

35.3 Committee and

facilitator

35.4 Arbitrator

35.5 Default

35.6 Agreements not to be

altered

35.7 Arbitration

35.8 Memorandum of

Understanding

35.9 Agreement or

decision binding

35.10 Precedence

35.11 Prohibition

35.12 Opting out

35.13 Suspension of

certain provisions

11. S.42 Amdt.

Prosecution

12. S.44 Amdt.

Proceedings under this Act

13. S.49.1 Added

Regulations

14. Commencement

Be it enacted by the

Lieutenant-Governor and House of Assembly in Legislative

Session convened, as follows:

RSN1990 cF-18

as amended

1. The Fishing Industry Collective

Bargaining Act is amended by deleting the words "operator", "an

operator", "operators", "operators'", and "an operators'" wherever

they appear and substituting instead the words "processor", "a

processor", "processors", "processors'" and "a processors'"

respectively where appropriate.

2. (1) Paragraph 2(1)(

a) of the Act is

amended by deleting the number "1" and by substituting the word

"one".

(2) Paragraph 2(1)(

e) of the Act is repealed

and the following substituted:

(e) "collective agreement" means an

agreement in writing between a processor or a processors'

organization acting on behalf of a processor and a

bargaining agent for fishers acting on behalf of the fishers

containing terms or conditions of the relationship of the

processor to the fishers, including provisions with

reference to rates of pay for fish supplied to a processor

by the fishers concerned, and includes a decision made by an

arbitrator;

(3) Paragraph 2(1)(

j) of the Act is amended by

deleting the number "1" and substituting the word "one".

(4) Subsection 2(1) of the Act is amended by

adding immediately after paragraph (

m) the following:

(m.1) "Memorandum of Understanding" means

a Memorandum of Understanding negotiated by the parties

under

section 35.8 and subject to this Act and includes

(

i) the guidelines for arbitrations,

and

(ii) the processes for arbitrations;

(5) Paragraph 2(1)(

n) of the Act is repealed

and the following substituted:

(n) "minister" means the minister

appointed under the Executive Council Act

to administer this Act;

(6) Paragraph 2(1)(

p) of the Act is repealed.

(7) Paragraph 2(1)(

q) of the Act is amended by

deleting the period at the end of that paragraph and substituting a

semicolon and the word "and" and by adding immediately after that

paragraph the following:

(r) "processor" means a person licensed

under the Fish Inspection Act to process or buy fish;

and

(s) "processors' organization" means an

organization of processors formed for purposes including the

regulation of relations between processors and fishers.

(8) Subsection 2(3) of the Act is amended by

deleting the number "1" and substituting the word "one".

3. The Act is amended by adding immediately

after

section 2 the following:

Application of certain provisions

2.1 Sections 13.1 to 13.9 and 35.1 to

35.13 apply only where fishers are represented by a certified

bargaining agent.

Section 8 of the Act is repealed and the

following substituted:

Application for certification

(1) An association claiming to have

as members in good standing a majority of fishers supplying fish to

one or more processors in a unit that is appropriate for collective

bargaining may, subject to the rules of the board and in accordance

with this section, make application to the board to be certified as

bargaining agent for fishers in the unit.

(2) An application under subsection (1) may only

be made between September 1 and October 31 inclusive in the time

period established in

section 35.12.

(3) Notwithstanding subsection (2), where a

collective agreement is not in force and an accredited bargaining

agent has not been certified under this Act for the unit, the

application may be made at any time.

(4) Two or more associations claiming to have as

members in good standing of the associations a majority of fishers

in a unit that is appropriate for collective bargaining may join in

an application under this

section and the provisions of this Act

relating to an application by one association and all matters or

things arising from that application shall apply with respect to the

application and the associations as if it were an application by one

association.

5. Subsection 13(2) of the Act is repealed

and the following substituted:

(2) An application under subsection (1) may only

be made between September 1 and October 31 inclusive in the time

period established in

section 35.12.

6. Sections 13.1 to 13.7 of the Act are

repealed and the following substituted:

Accreditation as bargaining agent

13.1

(1) Subject to the rules of the board, a processors' organization

whose members produce the majority percentage of fish by finished

product weight, based on the previous calendar year's production,

may apply to the board to be accredited as the sole collective

bargaining agent for all processors in the province.

(2) The processors' organization whose members produce the majority

percentage of fish by finished product weight referred to in

subsection (1) shall be determined on the basis of records submitted

by processors to the Department of Fisheries and Aquaculture under

the requirements of the Fish Inspection Act and the

regulations made under that Act and the Fisheries Act in the

context of obtaining licence renewal and reporting production for

the calendar year previous to the application.

Membership in accredited processors'

organization

13.2

An accredited processors' organization

(

a) shall offer membership to processors

on terms that are no less favourable than the terms offered

to existing members; and

(

b) shall not deny membership to a

processor 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 processors' organization as a

condition of acquiring or retaining membership in the

organization.

Expedited accreditation process

13.3

(1) Where an application is made to the board under

section 13.1,

the board shall, within 5 business days of the making of that

application, notify all processors who are required to submit

records to the Department of Fisheries and Aquaculture under the

Fish Inspection Act and the regulations under that Act and the

Fisheries Act in the context of obtaining licence renewal and

reporting production of the receipt of that application for

accreditation.

(2) A processor who has received notice under

subsection (1) may, within 10 business days of receiving that

notice, make representations to the board with respect to whether

the applicant produces the majority percentage of fish by finished

product weight based on the previous calendar year's production, and

subject to the merits of those representations, the board may, in

its discretion, hold a hearing with respect to that application for

accreditation.

(3) Where an application is made under

section

13.1 and the board has fulfilled the requirements of subsections

(1) and (2), and is satisfied that the processors' organization produces

the majority percentage of fish by finished product weight based on

the previous calendar year's production as determined on the basis

of records referred to in subsection 13.1(2), the board shall

accredit the applicant.

Prerequisites of accreditation

13.4

(1) Before the board accredits a

processors' organization, the board shall satisfy itself that

(

a) the processors' organization is a

properly constituted organization controlled by its members;

and

(

b) each of its members has vested

appropriate authority in the organization to enable it to

discharge the responsibilities of an accredited bargaining

agent.

(2) Where the board is of the opinion that

appropriate authority has not been vested in the processors'

organization, the board may dismiss or postpone disposition of the

application to enable processors who are member of the processors'

organization to vest in the organization whatever additional or

other authority the board considers necessary.

Results of accreditation

13.5 Upon accreditation, all rights,

duties and obligations under this Act of processors for whom the

accredited processors' organization is or becomes the bargaining

agent apply to the accredited processors' organization and its

members, and a collective agreement between a processor and a

certified bargaining agent for fishers that is in force at the date

of accreditation of a processors' organization does not bar a

certified bargaining agent for fishers from giving notice to the

accredited processors' organization to start collective bargaining

nor does it bar the accredited processors' organization from giving

notice to a collective bargaining agent for fishers to start

bargaining.

Binding effect

13.6

(1) Where a collective agreement

is negotiated between an accredited processors' organization and a

certified bargaining agent and a processor is not a member of that

accredited processors' organization, that processor is bound by and

shall comply with the terms of that collective agreement

notwithstanding the fact that he or she is not a member of that

accredited processors' organization.

(2) Where a processor referred to in subsection

(1) or a member of an accredited processors' organization fails to

comply with a provision of a collective agreement referred to in

that subsection, the accredited processors' organization may apply

to the board for a determination on the matter and the board may

make that determination.

Revocation

13.7

(1) Between September 1 and October 31 inclusive in the time period

established in

section 35.12

(

a) an accredited processors'

organization; or

(

b) one or more members of an accredited

processors' organization

may apply to the board for a declaration that the

accreditation of that organization be revoked.

(2) Where an application is made under paragraph

(1)(a), the board shall declare the accreditation of that

processors' organization revoked.

(3) Where an application is made under paragraph

(1)(b), the board shall ascertain the processors in the accredited

processors' organization 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 that organization and where the board is satisfied

that

(

a) processors processing the majority

percentage of fish by finished product weight based on the

previous calendar year's production have voluntarily

indicated in writing that they no longer wish to be

represented by the accredited processors' organization; and

(

b) it can be shown that the accredited

processors' organization no longer fulfils the requirements

section 13.1 as determined on the basis of records

submitted by processors to the Department of Fisheries and

Aquaculture under the requirements of the Fish Inspection

Act and the regulations made under that Act and the

Fisheries Act in the context of obtaining licence

renewal and reporting production from the previous calendar

year

the board shall declare the accreditation of the

processors' organization revoked.

Result of revocation

13.8

Upon the board making a declaration under subsection 13.7(2) or (3),

all rights, duties and obligations of the processors' organization

under this Act and under an unexpired collective agreement revert to

the individual processors to whom the collective agreement or the

bargaining agent's certification order applies.

Certain agreements void

13.9

A certified bargaining agent for fishers which has bargaining rights

for fishers who sell fish to processors represented by an accredited

processors' organization and a processor or person acting on behalf

of the processor, shall not, as long as the accredited processors'

organization continues to be entitled to represent the processors in

an accredited processors' organization, enter into an agreement or

understanding, oral or written, that provides for the selling of

fish contrary to the terms of a collective agreement, and where that

agreement or understanding is entered into, it is illegal.

7. (1) Subsection 18(1) of the Act is

amended by deleting the number "1" wherever it appears and by

substituting the word "one".

(2) Paragraph 18(2)(

a) of the Act is amended by

deleting the number "1" and by substituting the word "one".

Section 19 of the Act is amended by

deleting the number "1" and by substituting the word "one".

9. Subsection 23(1) of the Act is amended

by deleting the number "1" wherever it appears and by substituting

the word "one".

10. Sections 35.1 to 35.12 of the Act are

repealed and the following substituted:

Definitions

35.1

In sections 35.2 to 35.13

(a) "arbitrator" means an arbitrator

appointed under

section 35.4 or under

section 35.5; and

(b) "party" and "parties", notwithstanding

paragraph 2(1)(q), means an association of fishers or a

certified bargaining agent for fishers, and a processors'

organization, or an accredited processors' organization who

may or may not be bound by a collective agreement.

Notice of and

schedule for negotiations

35.2

(1) Where a certified bargaining agent intends to negotiate price

for a fish species, that agent shall notify the accredited

processors' organization, or in the absence of an accredited

processors' organization, a processors' organization or a processor

of that intention.

(2) The parties to collective bargaining shall,

before February 1 in a year, establish a negotiation

schedule with

respect to each fish species which will be subject to collective

bargaining during that year and the parties shall negotiate

according to that

schedule unless modified under subsection (4).

(3) Where a

schedule has been established for a

fish species under subsection (2), 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.

(4) Subject to subsection (2), the parties to

collective bargaining may, by mutual consent, amend the negotiation

schedule established under that subsection and shall notify the

minister immediately of those changes.

Committee and facilitator

35.3

(1) Where parties commence negotiations with respect to a fish

species, those parties, not later than 60 days before the expected

opening date of the fishery for that species

(

a) may, by mutual consent, establish a

joint technical committee composed of persons who represent

the interests of each party; and

(

b) shall 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, and 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) Where, due to absence, incapacity or other

cause an arbitrator appointed under this

section is unable to act

within the time required by this Act, a Memorandum of Understanding,

or in the absence of a Memorandum of Understanding, the regulations,

the parties may, by mutual consent, recommend another person to be

an arbitrator to, and where called upon, arbitrate the matter under

negotiation, and upon receiving that recommendation the minister

shall immediately appoint that other person as the arbitrator.

(5) 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) The parties shall, every calendar year, agree upon and appoint a

person who is not a party to the negotiations who shall, where the

parties fail to appoint

(

a) a facilitator under

section 35.3; or

(

b) an arbitrator under

section 35.4

make the recommendations to the minister that are

required by sections 35.3 and 35.4 within the time required by those

sections.

(2) Where the parties to negotiations fail to make

the appointment required under subsection (1), the minister shall,

15 days from the expiry of the time period referred to in sections

35.3 and 35.4, appoint a facilitator under

section 35.3 or an

arbitrator under

section 35.4 where the required recommendations for

a facilitator or an arbitrator have not been made by the parties

under those sections.

(3) 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, except by mutual consent,

(

a) the negotiated or arbitrated prices

for a fish species; or

(

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 35.11 or

a new collective agreement.

Arbitration

35.7

(1) Where there are negotiations between parties with respect to the

fishery for a fish species and a collective agreement is not reached

by those parties at least 14 days before the expected commencement

of that fishery, those parties shall each submit a final position on

price and other matters to the arbitrator appointed with respect to

those negotiations.

(2) Where final positions on price and other

matters 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 those submissions and that decision shall

be in accordance with one of the final positions on price and other

matters submitted under subsection (1) unless the parties who

submitted those positions have agreed to another form of

arbitration.

(3) Final offer selection, the process referred to

in subsections (1) and (2), shall be the form of arbitration used by

the parties unless, at the commencement of the negotiations, the

parties to the negotiations determine by agreement that another form

of arbitration is acceptable to them.

(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) is an interim decision on price and other matters, or

provides for an interim price

schedule for a fish species rather

than a final decision or a full season price, the parties in

negotiation over that price and other matters shall continue to

attempt to reach an agreement with respect to the full season price

and other matters until not later than 14 days before the expiry

date specified in the decision for the interim price and other

matters or interim price

schedule 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 date specified

in the decision for the interim price and other matters or interim

price schedule.

(6) Where an arbitrator makes a decision under

this section, a collective agreement is considered to be in place

with respect to that species according to the arbitrator's decision.

(7) An arbitrator acting under this

section shall

comply with the guidelines for arbitration and the processes for

arbitration agreed to by the parties in a Memorandum of

Understanding, or where no Memorandum of Understanding exists or

where it exists but is silent on those issues, an arbitrator shall

comply with the regulations prescribed by the Lieutenant Governor in

Council under

section 49.1.

Memorandum of Understanding

35.8

(1) The parties shall, by December

31 in every calendar year, file with the minister a Memorandum of

Understanding for the upcoming year, and

(

a) an arbitrator appointed under

section

35.4 or 35.5 shall comply with that Memorandum of

Understanding; and

(

b) that Memorandum of Understanding is

binding upon the parties to it.

(2) A Memorandum of Understanding negotiated under

subsection (1) may be changed over the course of the year to which

it applies by mutual consent of the parties to it, and changes made

to it shall be filed with the minister immediately.

(3) Where the parties fail to file a Memorandum of

Understanding by December 31 in every calendar year as required

under subsection (1), on application of one of the parties the

minister shall, not later than 7 days after that date, appoint an

arbitrator to consider the matter, and the parties shall, not later

than 7 days from the appointment of that arbitrator, each submit a

final position on the matter to him or her.

(4) Where final positions are submitted under

subsection (3), the arbitrator 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 (3).

(5) 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 (3).

(6) A decision by an arbitrator under this

section

shall determine the content of the Memorandum of Understanding

between the parties for the upcoming year and shall be binding upon

the parties as if it had been agreed to by the parties under

subsection (1).

(7) Where there is a conflict between a provision

of a Memorandum of Understanding and this Act, this Act prevails.

Agreement or decision binding

35.9

Where, in the absence of an accredited processors' organization

(

a) a certified bargaining agent

negotiates a collective agreement for fish species on price

and other matters, or where price and other matters are

determined by an arbitrator under

section 35.7; and

(

b) that collective agreement or decision

by an arbitrator is binding upon the processors who process

the majority percentage of fish by finished product weight

based upon the previous calendar year's production of that

fish species

the terms of that collective agreement or that

determination by an arbitrator under

section 35.7 are binding upon

all processors in the province who process that fish species.

Precedence

35.10

Sections 35.1 to 35.9 shall have precedence over 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 be no

strike, stoppage, lockout or cessation of business dealings between

fishers and processors while sections 35.1 to 35.10 are in force.

Opting out

35.12 Commencing September 1, 2002 and

every 2 years after that date, a party may, between September 1 and

October 31 inclusive, signal its intention to opt out of the

requirements of sections 35.1 to 35.11 by writing a letter to the

minister stating that intention, and that letter shall, unless

revoked, effect the opting out of that party on December 31 of that

year.

Suspension of certain provisions

35.13

(1) The operation of

sections 23, 26, 27 and 28 of this Act shall be considered to be

suspended and those sections are of no effect unless a party has

opted out of the requirements of sections 35.1 to 35.11 under

section 35.12.

(2) Where, after December 31 in the year referred

to in

section 35.12, a party has opted out under that section,

sections 23, 26, 27 and 28 shall no longer be considered to be

suspended and shall be of full effect but sections 35.1 to 35.11

shall be considered to be suspended and shall be of no effect.

11. Subsection 42(2) of the Act is amended

by deleting the number "1" and substituting the word "one".

12. Paragraph 44(

c) of the Act is amended

by deleting the number "1" wherever it appears and substituting the

word "one".

13. The Act is amended by adding

immediately after

section 49 the following:

Regulations

49.1 The Lieutenant Governor in Council

may make regulations

(

a) setting the guidelines for

arbitrations;

(

b) outlining the arbitration processes;

and

(

c) generally, to give effect to the

purpose of this Act.

Commencement

14. This Act shall come into force on July

1, 2000.

Earl G. Tucker, Queen's Printer