First

Session, 47th General Assembly

Elizabeth II, 2012

BILL 37

AN ACT TO AMEND THE

LABOUR RELATIONS ACT

Received and Read the First Time ............................................................................ June

18, 2012

Second Reading .......................................................................................................... June

19, 2012

Committee ..............................................................................................

Amendment

June 21, 2102

Third Reading .............................................................................................................. June

21, 2012

Royal Assent ......................................................................................................................................

HONOURABLE

TERRY FRENCH

Minister of Environment and Conservation and

Minister Responsible for the Labour Relations Agency

Ordered

to be printed by the Honourable House of Assembly

EXPLANATORY NOTES

This Bill would amend the Labour Relations Act in response to the Voiseys

Bay Industrial Inquiry Commission. In particular, this Bill would

allow the board to limit the

scope of a hearing;

require that parties to a

collective agreement establish a labour management committee where one of the

parties makes a written request;

provide additional powers to

the board to address the consequences of failure to bargain in good faith; and

allow the Lieutenant-Governor

in Council to make regulations in response to the recommendations of an industrial

inquiry.

This Bill would also amend the Act in

response to the James Oakley Report on the special project order provisions of

the Act. In particular, this Bill would

redefine "special

project" to reduce the construction period required from 3 years to 2

years and remove the requirement of a geographic site from the definition;

allow the Lieutenant-Governor

in Council to prescribe the geographic site or scope of work to be included or

excluded from a special project order;

clarify that special project

orders may overlap temporally and geographically;

remove the board's authority to

issue special project orders; and

allow the minister to refer

certain questions to the board both before and after a special project order

declaration.

This Bill would also

clarify the employers freedom

to express views so long as the employer does not use coercion, intimidation,

threats, promises or undue influence;

amend the certification process

regarding the requirement for a representation vote;

require that the minister

appoint a first collective agreement mediator where the parties have failed to

conclude a first collective agreement;

impose time frames for the

board in relation to the imposition of first collective agreements;

clarify that the Labour

Management Arbitration Committee applies to this Act and the Public Service Collective Bargaining Act;

remove the Lieutenant-Governor

in Councils authority to order that a trade union take a secret ballot of the

employees to determine their wishes with respect to resumption of work where

the continuance of a strike or lockout poses a threat to an industry or

geographic area of the province; and

allow either party during

collective bargaining to request that a vote be taken to accept or reject the

most recent offer.

A BILL

AN ACT TO AMEND THE LABOUR

RELATIONS ACT

Analysis

S.2 Amdt.

Interpretation

S.6 Amdt.

Continuation of board

S.15.1 Added

Protection from liability

S.17 Amdt.

Reference or application to board

S.18 Amdt.

Powers of board

S.25 Amdt.

Prohibitions relating to employers

S.47 R&S

47. Certification,

representation vote or

dismissal

47.1 Representation vote

S.50 Amdt.

Exclusive authority

S.51 Amdt.

Revocation of certification

S.69 Rep.

Determination of special project

S.70 R&S

Declaration of special projects

S.81 R&S

First collective agreement

S.83.1 Added

Vote on offer

S.85 R&S

85. Voluntary agreement

85.1 Labour management committee

S.91.1 Amdt.

Arbitration committee

S.91.3 Amdt.

Powers and duties of the committee

S.91.5 R&S

Action barred

S.102 Rep.

Danger to industry

S.123 Amdt.

Directive of board re complaints

S.147 Amdt.

Regulations

RSNL1990 cF-18 Amdt.

Commencement

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cL-1

as amended

1. Paragraph 2(l)(

u) of the Labour Relations Act is repealed and the following substituted:

(u) "special project" means an

undertaking for the construction of works designed to develop a natural

resource or establish a primary industry that is planned to require a

construction period exceeding 2 years, and includes all ancillary work,

services and catering relating to the undertaking or project;

Section 6 of the Act is amended by adding immediately

after subsection (9) the following:

(10) Where the term of office of a person appointed

under subsection (5) expires, he or she continues to be an alternate member of

the board until he or she is reappointed or replaced.

3. The Act is amended by adding immediately after

section 15 the following:

Protection from

liability

15.1 An

action or other proceeding does not lie against the board or a member of the

board for anything done or omitted to be done in good faith in the course of

exercising a power or carrying out a duty under this Act.

Section 17 of the Act is amended by adding

immediately after subsection (3) the following:

(4) An employee may apply to the board, in

accordance with

section 51 of the Occupational

Health and Safety Act, for a determination as to whether the actions of his

or her employer or trade union were discrimatory.

(5) A person aggrieved by a decision of

(

a) the assistant deputy minister under sections

27 to 30 of the Occupational Health and

Safety Act; or

(

b) an occupational health and safety officer and

confirmed by the assistant deputy minister under

section 32 of the Occupational Health and Safety Act

may apply to the board for a variation or

revocation of the assistant deputy ministers decision.

(1) Section 18 of the Act is amended by

adding immediately after paragraph (a.2) the following:

(a.3) limit the scope of a hearing;

(2) Section 18 of the Act is amended by adding

immediately after paragraph (

k) the following:

(k.1) make orders upon employers and trade unions in

accordance with

section 52 of the Occupational

Health and Safety Act;

(k.2) confirm, revoke or vary a decision of the

assistant deputy minister made under sections 27 to 30 of the Occupational Health and Safety Act or

confirmed or varied under

section 32 of the Occupational

Health and Safety Act;

Section 25 of the Act is amended by adding

immediately after subsection (3) the following:

(4) Nothing in this

section prevents an employer from

expressing his or her views so long as the employer does not use coercion,

intimidation, threats, promises or undue influence.

Section 47 of the Act is repealed and the

following substituted:

Certification,

representation vote or dismissal

(1) Where

an application for certification is supported by at least 65% of the employees

in the unit at the time of application and the board is satisfied that the

other requirements for certification under this Act have been met, the board shall

certify the union as the bargaining agent for the employees in the unit.

(2) Where an application for certification is

supported by at least 40% but less than 65% of the employees in the unit at the

time of application, the board shall take a vote of the employees in the unit,

in accordance with

section 47.1, to determine their wishes with respect to the

certification of the applicant trade union as their bargaining agent.

(3) Where an application for certification is

supported by less than 40% of the employees in the unit at the time of

application, the board shall dismiss the application.

(4) Notwithstanding subsection (2), the board is

not required to take a vote where the trade union and the employer in the unit

to which the application relates jointly request that the board not take a

vote.

Representation vote

47.1

(1) A

vote taken as required by subsection 47(2) shall be taken at the time and

place, or by mail, as the board determines.

(2) Where a vote is taken, it shall be taken

more than 5 days, excluding holidays and weekends, after receipt by the board

of the application for certification.

(3) Notwithstanding subsection (2), the board may

in exceptional circumstances extend the time for the taking of the vote by the

number of days which it considers appropriate.

(4) Where a vote is taken under subsection (1),

the board shall remove and destroy, without counting, the ballots cast by

persons who, at the time of application, are not employees in the unit to which

the application relates.

(5) The board may order costs with respect to the

vote under this

section against the appropriate person, where, in the opinion

of the board, the application was frivolous or vexatious.

(6) The board is bound by the outcome of a vote

taken under this

section except where the board determines that the procedure

under this

section has been influenced by intimidation, threat of dismissal or

other kind of threat or coercion.

(7) With respect to an application for

certification as a bargaining agent, the board shall adhere to the date of the

application as the operative date for determining support on the basis of

membership records.

8. Paragraph 50(

d) of the Act is repealed.

9. Subsection 51(5) of the Act is repealed.

Section 69 of the Act is repealed.

Section 70 of the Act is repealed and the

following substituted:

Declaration of

special projects

(1) The

Lieutenant-Governor in Council may by order

(

a) declare an undertaking that is a special

project within the meaning of paragraph 2(1)(

u) to be a special project under

this Act, and the project so declared is a special project for all the purposes

of this Act; or

(

b) notwithstanding paragraph 2(1)(u), declare an

undertaking for the construction or fabrication of works at the Bull Arm site,

including all ancillary work, services and catering to be a special project and

the project so declared is a special project for all the purposes of this Act.

(2) The Lieutenant-Governor in Council may, with

respect to an order made under subsection (1), prescribe

(

a) the geographic site or scope of work to which

the declaration relates;

(

b) that

a geographic site or scope of work be excluded from a special project order;

(

c) the employers, employers' organizations, trade

unions and councils of trade unions that may be involved in collective

bargaining relating to employment on the special project;

(

d) the bargaining unit for the purpose of the

special project;

(

e) that a collective agreement is the collective

agreement for the purpose of the special project; and

(

f) those conditions and qualifications with

respect to any aspect of the special project that the Lieutenant-Governor in

Council considers necessary or desirable.

(3) Notwithstanding subsection 64(2), a collective

agreement that is prescribed by the Lieutenant-Governor in Council under paragraph

(2)(

e) is valid.

(4) A special project order is not invalid because

it overlaps temporally and geographically with another special project order.

(5) Where an undertaking is declared a special

project, employees who work under the provisions of a collective agreement in

relation to the work at the special project site may not be included as members

in good standing of the trade union or employees in a unit for the purpose of a

vote under

section 38 and the board may not consider those employees in

determining whether or not a trade union may be certified.

(6) Subsection (5) applies in relation to all

declarations made under subsection (1) and applies in relation to all applications

before the board, whether made before or after the commencement of subsection

(5).

(7) Where the Lieutenant-Governor in Council has

made an order with respect to a special project under paragraph (1)(b),

(

a) a collective agreement proposed or entered

into with respect to that special project shall not contain a provision that authorizes

an employee to; and

(

b) an employee with respect to that special

project shall not,

refuse to perform work for his or her

employer because other work was or will be performed or was not performed by a

person or class of persons who were not or are not members of a trade union or

a particular trade union.

(8) A provision of a collective agreement with

respect to an undertaking to which paragraph (1)(

b) applies that authorizes an

employee to refuse to perform work for his or her employer because other work

was or will be performed or was not performed by a person or class of persons

who were not or are not members of a trade union or a particular trade union,

is void.

(9) An employers' organization that may be

prescribed under paragraph (2)(

c) shall have a constitution that includes all

of the following:

(

a) the exclusive authority to negotiate, enter

into, and administer collective agreements;

(

b) provisions that provide for the election or

appointment of its officers;

(

c) a formula for reaching decisions that assures

that a deadlock cannot occur; and

(

d) a formula for the ratification by the

employers represented by the employers' organization, of collective agreements

reached between the organization and a trade union or council of trade unions

prescribed as a party to collective bargaining on a special project and a time

limit within which ratification shall take place.

(10) A council of trade unions that may be

prescribed under paragraph (2)(

c) shall have a constitution adopted with the

agreement of each of the trade unions that are members of that council and that

constitution shall include all of the following:

(

a) provisions that vest the council with the

exclusive authority to negotiate, enter into and administer collective

agreements;

(

b) provisions for the election of officers to the

council;

(

c) a formula for reaching council decisions that

assures that a deadlock cannot occur;

(

d) provisions for final, binding and expeditious

resolution of jurisdictional disputes without a stoppage of work;

(

e) provisions requiring bargaining unit employees

to be members in good standing of the council; and

(

f) a formula for the ratification by a majority

of the members of the trade unions that comprise the council, of collective

agreements reached between the council and an employer or employers'

organization prescribed as a party to collective bargaining on a special

project and a time limit within which the ratification must occur.

(11) Where an undertaking has been declared by

order to be a special project under subsection (1), an employer, employers'

organization, trade union or council of trade unions may apply to the board for

a determination as to whether

(

a) a person is an employer or an employee;

(

b) an organization or association is an employers'

organization and if so, whether that employers' organization is in compliance

with subsection (9);

(

c) an organization or association is a trade

union or a council of trade unions and if it is a council of trade unions,

whether that council is in compliance with subsection (10); and

(

d) a collective agreement has been entered into.

(12) The minister may apply to the board for

determination under subsection (11) before and after an undertaking has been

declared by order to be a special project.

(13) The board may, with respect to an undertaking

declared by order to be a special project under subsection (1), hear and decide

upon complaints made to it with respect to or under sections 18.1, 30 and 130.

(14) This

section does not apply to a special

project order declared before this

section comes into force.

Section 81 of the Act is repealed and the

following substituted:

First collective

agreement

(1) Where

a trade union certified as a bargaining agent and an employer have been engaged

in collective bargaining to conclude a first collective agreement and have

failed to do so within 60 days after the date notice to bargain was served in

accordance with

section 72, the minister shall appoint a first collective

agreement mediator to assist the parties in concluding a first collective agreement.

(2) With the agreement of the parties, the period

referenced in subsection (1) may be extended to 75 days.

(3) Where the parties have failed to conclude a

first collective agreement within 30 days after the appointment of the first

collective agreement mediator or after the conditions prescribed in

section 98

have been satisfied, either party may make application to the board to inquire

into the dispute and where the board considers it advisable, to settle the

(4) The board shall consider and make its decision

on an application under subsection (3) within 30 days of receiving the

application.

(5) Where the board decides to settle the terms and

conditions of a first collective agreement the board shall

(

a) appoint a date for and commence a hearing

within 21 days of the decision being made;

(

b) determine all matters in dispute; and

(

c) release its decision within 45 days of the

commencement of the hearing.

(6) Where the board settles the terms and

considered to constitute the collective agreement between the trade union and

the employer and to be binding on them and the employees, except to the extent

that the trade union and employer agree in writing to vary those terms and

conditions.

(7) Where an application is made under subsection

(3), and upon the date the board advises the parties that it will impose a first

collective agreement, an employee shall not strike or continue to strike, and

the employer shall not lock out or continue to lock out the employees.

(8) Notwithstanding subsection (1), the parties

may agree in writing, and upon notice to the minister and the board, to make

application to the board to settle a first collective agreement and the board

shall settle the first collective agreement.

(9) Notwithstanding subsection (1), the parties

may agree to settle a first collective agreement through private interest

arbitration.

(10) The appointment of a first collective

agreement mediator terminates on the appointment of a conciliation officer,

mediator or conciliation board.

(11) Nothing in this

section limits the ability of

a trade union or employer from fulfilling the conditions precedent under

section 98 of the Act.

(12) Except with the consent of the minister and

notwithstanding a law to the contrary, a first collective agreement mediator

shall not be required to give in evidence before a court, tribunal, board,

commission or conciliation board, or before another body or person, information

that he or she has received in the course of his or her duty as a first collective

agreement mediator.

13. The Act is amended by adding immediately after

section 83 the following:

Vote on offer

83.1

(1) During

collective bargaining, including after the commencement of a strike or lockout,

the employer of the employees in the unit affected or an employers

organization representing the employer may request that a vote of the employees

in the affected unit be taken as to the acceptance or rejection of the offer

last received by the trade union in respect of all matters remaining in dispute

between the parties.

(2) During collective bargaining, including after

the commencement of a strike or lockout, the bargaining agent of the employees

in the affected unit may, if more than one employer is represented in the dispute

by an employers organization, request that a vote of those employers be taken

as to the acceptance or rejection of the offer last received by the employers organization

in respect of all matters remaining in dispute between the parties.

(3) A request under subsection (1) or (2) shall be

made in writing to the board.

(4) The board shall take a vote by secret ballot

as soon as practicable after receipt of a request under subsection (1) or

(2) and report the results of the vote to the parties.

(5) Where a majority of the employees or

employers, as the case may be, participating in the vote, accept the offer last

received the parties are bound by that offer and shall, without delay, enter

into a collective agreement that incorporates the terms of that offer.

(6) Only one vote in respect of the same dispute

may be held under subsection (1) and only one vote in respect of the same dispute

may be held under subsection (2).

(7) A request that a vote be taken, or the taking

of a vote, under this

section does not extend any time limits or periods provided

in this Act.

(8) The board shall determine a question that

arises under this section, including a question relating to the taking of the

vote or the determination of its result.

Section 85 of the Act is repealed and the

following substituted:

Voluntary agreement

85. In

the case of an undertaking declared under this Act to be a special project, an

existing or future written agreement between an employer or employers'

organization, on the one hand, and a trade union or a council of trade unions,

on the other hand, shall be considered to be a collective agreement in force

for the purpose of this Act, notwithstanding that the composition of the

bargaining committee was not in accordance with

section 76 or that there were

no employees in the bargaining unit represented by the bargaining agent at the

time of the negotiation or execution of the agreement.

Labour management

committee

85.1

(1) Where

a party to a collective agreement makes a written request to the other party

that the collective agreement contain a provision requiring a labour management

committee to be established, the parties shall include such a provision in the

collective agreement within 6 months of the date of the request.

(2) Where a provision establishing a labour management

committee has not been included in the collective agreement within 6 months of

the date of the request, the collective agreement shall be considered to

contain the following provision:

At the request of either party the parties

shall meet at least once every 2 months for the purpose of discussing issues relating

to the workplace in order to promote effective communication between the

parties bound by this agreement.

15. Subsection 91.1(2) of the Act is repealed and

the following substituted:

(2) The arbitration committee shall promote the

establishment and the maintenance of a high quality and effective arbitration

process for arbitrations conducted under collective agreements and under this

Act and the Public Service Collective

Bargaining Act.

16. Paragraphs 91.3(1)(

b) and (

c) of the Act are

repealed and the following substituted:

(

b) oversee qualification and training processes

for arbitrators who conduct arbitrations under this Act and the Public Service Collective Bargaining Act ,

including ongoing qualification assessment and training processes ;

(

c) establish and maintain a roster of persons

who, in the opinion of the arbitration committee, are qualified to conduct arbitrations

under collective agreements and this Act and the Public Service Collective Bargaining Act ; and

Section 91.5 of the Act is repealed and the

following substituted:

Action barred

91.5 An

action or other proceeding does not lie against the arbitration committee or a

member of the arbitration committee for anything done or omitted to be done in

good faith in the course of exercising a power or carrying out a duty under

this Act or the Public Service Collective

Bargaining Act.

Section 102 of the Act is repealed.

19. (1) Subsection 123(5) of the Act is

repealed and the following substituted:

(5) Where the board is satisfied after an inquiry

that an employer, employers' organization, trade union, council of trade

unions, employee or other person has failed to comply with subsections 122(1)

and (2), the board

(

a) shall issue a directive to the employer,

employers organization, trade union, council of trade unions, employee or

other person concerned to do or stop doing the act in respect of which the complaint

was made; and

(

b) may, in the same or a later directive, require

the employer, employers' organization, trade union, council of trade unions,

employee or other person concerned, as the circumstances may require,

(

i) to reinstate an employee suspended or

discharged contrary to those provisions,

(ii) to pay to an employee or former employee

suspended or discharged contrary to those provisions compensation not exceeding

the amount that, in the opinion of the board, would have been paid by the

employer to the employee,

(iii) to rescind a disciplinary action or monetary

or other penalty taken or imposed contrary to those provisions,

(iv) to pay a person compensation not exceeding the

amount that in the opinion of the board is equivalent to the monetary or other

penalty imposed on a person contrary to those provisions, or

(

v) to pay to an employee in respect of a failure

to comply with the provisions referred to in subsection 122(1) compensation not

exceeding the amount that, in the opinion of the board, is equivalent to the

remuneration that would have been paid to the employee by the employer if the

employer had complied with the provision referred to in subsection (1) of that

section.

(5.1) Where the board is satisfied after an inquiry

that an employer, employers' organization, trade union, council of trade

unions, employee or other person has failed to comply with subsection 122(3)

the board

(

a) shall issue a directive to the employer,

employers organization, trade union, council of trade unions, employee or

other person concerned to do or stop doing the act in respect of which the complaint

was made; and

(

b) may, in the same or a later directive, require

the employer, employers' organization, trade union, council of trade unions,

employee or other person concerned, as the circumstances may require, to do any

act or thing which the board considers necessary and which is appropriate in

the circumstances.

Section 147 of the Act is amended by adding

immediately after paragraph (

a) the following:

(a.1) in response to the recommendations of an

industrial inquiry commission;

RSNL1990 cF-18

Amdt.

21. Subsection 41.1(1) of the Fishing Industry Collective Bargaining Act is amended by adding a

comma and the words and comma "except paragraph (5.1)(b)," immediately

after the reference to "section 123".

Commencement

Section 13 of this Act comes into force on a

day to be proclaimed by the Lieutenant-Governor in Council.

William E. Parsons, Queen's Printer