Third

Session, 47th General Assembly

Elizabeth II, 2014

BILL 22

AN ACT TO AMEND THE

LABOUR RELATIONS ACT

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

Second Reading .................................................................................................................................

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

Third Reading .....................................................................................................................................

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

HONOURABLE

DAN CRUMMELL

Minister

of Service Newfoundland and Labrador 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 to

amend the certification process

regarding the requirement for a representation vote;

remove the requirement for

parties to collective bargaining to request a conciliation board in order to

advance the collective bargaining process; and

reorder the provisions relating

to conciliation proceedings and strikes and lockouts.

A BILL

AN ACT TO AMEND THE LABOUR

RELATIONS ACT

Analysis

S.19.1 Amdt.

Review of bargaining unit

S.29 Amdt.

Organized slow-down

Ss.47 & 47.1 R&S

Taking of votes and ballot

S.74 Amdt.

Time limit

S.75 Amdt.

Time limit

Ss.79 & 80 Rep.

79. Conciliation officer

80. Appointment of mediator

S.81 Amdt.

First collective agreement

S.92 Amdt.

Settlement by arbitration

Parts V & VI R&S

PART V

CONCILIATION

PROCEEDINGS

98. Appointment

conciliation officer

99. Conciliation officers

report to minister

100. Appointment of conciliation board

101. Conciliation board

appointment

102. Removal and

replacement of

members

103. Oath of office

104. Terms of reference

105. Conciliation

106. Witnesses and

documents

107. Entry and inspection

108. Report to minister

109. Copy and publication

110. Parties to

acknowledge receipt

111. Filing of evidence

with minister

112. Evidential value of

report

113. Parties bound

114. Failure to report

115. Appointment of

mediator

PART

STRIKES AND

LOCKOUTS

116. Conditions

precedent

117. No strikes while

agreement in force

118. Conditions precedent

to strikes and lockouts

119. Strike vote mandatory

120. Condition precedent

to strike on platform

121. Liability of employees

121.1 Suspension or

discontinuance of

operations

Transitional

RSNL1990 cF-18

Amdt.

RSNL1990 cI-18

Amdt.

RSNL1990 cP-42

Amdt.

CNLR 746/96

Amdt.

Be it enacted by the Lieutenant-Governor and

House of Assembly in Legislative Session convened, as follows:

RSNL1990 cL-1

as amended

1. Paragraph 19.1(2)(

e) of the Labour Relations Act is amended by

deleting the reference "section 98" wherever it occurs and substituting

the reference "section 116".

Section 29 of the Act is amended by deleting

the reference "subsection 99(2)" and substituting the reference "subsection

117(2)".

3. Sections 47 and 47.1 of the Act are repealed

and the following substituted:

Taking of votes

and ballot

(1) Where

an application for certification is supported by not less than 40% of the

employees in the unit to which the application relates, the board shall take a

vote of the employees in the unit to determine their wishes with respect to the

certification of the applicant trade union as their bargaining agent.

(2) Notwithstanding subsection (1), 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.

(3) A vote taken as required by this

section shall

be taken at the time and place, or by mail, as the board determines.

(4) Where a vote is taken it shall be taken no

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

of the application for certification.

(5) Notwithstanding subsection (4), the board may

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

number of days which it considers appropriate.

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

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

persons who are not employees in the unit to which the application relates.

(7) 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.

(8) 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.

(9) 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.

4. Paragraph 74(

b) of the Act is repealed and the

following substituted:

(

b) except with the prior written approval of

the board, the employer shall not alter rates of wages or other terms or conditions

of employment of employees in the unit without the prior consent of the

bargaining agent that was certified in respect of that unit, until

(

i) a collective agreement has been concluded,

(ii) a conciliation officer has been appointed to

try to bring about an agreement between the parties, and 15 days have elapsed

from the date on which the report of the conciliation officer was received by

the minister and a conciliation board has not been appointed, or

(iii) a conciliation board has been appointed to try

to bring about agreement between the parties and 7 days have elapsed from the

date on which the report of the conciliation board was received by the minister,

whichever first occurs.

5. Paragraph 75(

b) of the Act is repealed and the

following substituted:

(

b) where a renewal or revision of the agreement

or a new collective agreement has not been concluded before expiry of the term

or termination of the collective agreement, then, unless he or she receives the

prior written approval of the board, the employer shall not, without the

written consent of the bargaining agent certified or recognized in respect of

the appropriate unit, decrease rates of wages or alter other terms or

conditions of employment in effect immediately before the expiry or termination

provided for in the agreement, until

(

i) a renewal or revision of the agreement on a

new collective agreement has been concluded,

(ii) a conciliation officer has been appointed to

try to bring about an agreement between the parties, and 15 days have elapsed

from the date on which the report of the conciliation officer was received by

the minister and a conciliation board has not been appointed, or

(iii) a conciliation board has been appointed to try

to bring about an agreement between the parties and 7 days have elapsed from

the date in which the report of the conciliation board was received by the

minister,

whichever first occurs.

6. Sections 79 and 80 of the Act are repealed.

7. (1) Subsection 81(3) of the Act is amended

by deleting the reference "section 98" and substituting the reference

"section 116".

(2) Subsection 81(11) of the Act is amended by

deleting the reference "section 98" and substituting the reference "section

116".

8. Subsection 92(3) of the Act is amended by

deleting the reference "section 98" and substituting the reference "section

116".

9. Parts V and VI of the Act are repealed and the

following substituted:

PART V

CONCILIATION PROCEEDINGS

Appointment of

conciliation officer

(1) Where

notice to begin collective bargaining has been given under this Act and

(

a) collective bargaining has not begun within the

time prescribed by this Act; or

(

b) collective bargaining has begun,

and either party requests the minister in

writing to instruct a conciliation officer to confer with the parties to help

them in concluding a collective agreement or a renewal or revision of it and

the request is accompanied by a statement of the difficulties that have been

encountered before the beginning or in the course of the collective bargaining,

or where, in another case, the minister considers it desirable to do so, the

minister may instruct one or more conciliation officers to confer with the

parties engaged in collective bargaining.

(2) Except with the consent of the minister and

notwithstanding a law to the contrary, a conciliation officer or a member of

the staff of the board 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 conciliation officer or as a member of the staff of the board.

Conciliation officers

report to minister

99. Where

a conciliation officer has, under this Act, been instructed to confer with

parties engaged in collective bargaining or parties to a dispute, he or she

shall, within 14 days after being so instructed or within the period that the

minister may allow, make a report to the minister setting out

(

a) the matters upon which the parties have

agreed;

(

b) the matters upon which the parties cannot

agree; and

(

c) a statement as to the advisability of

appointing a conciliation board with a view to effecting an agreement.

Appointment of

conciliation board

(1) The

minister may appoint a conciliation board for the purpose of trying to bring

about an agreement between the parties where

(

a) a conciliation officer fails to bring about an

agreement between the parties engaged in collective bargaining; or

(

b) before or after the commencement of a legal

strike or lockout, the minister considers it desirable to do so.

(2) Following the commencement of a legal strike

or lockout, either party may request the appointment of a conciliation board

and the minister may appoint a conciliation board in accordance with this Act.

Conciliation

board appointment

(1) A

conciliation board appointed under this Act shall consist of a chairperson and

2 members appointed in the manner provided in this section.

(2) Where the minister decides to appoint a

conciliation board, he or she shall, immediately by written notice, require

each of the parties to nominate, within 7 days after receipt of notice, one

person to be a member of the board, and, upon receipt of the nominations within

7 days, the minister shall appoint those persons members of the board.

(3) Where either of the parties to whom notice is

given under this

section fails or neglects to nominate a person within 7 days

after receipt of notice, the minister shall appoint as a member of the conciliation

board a person he or she considers appropriate for the purpose and the person

shall be considered to have been appointed on the recommendation of the party

who did not respond to the notice.

(4) The 2 members appointed under subsections

(2) and (3) shall, within 5 days after the day on which the second of them is appointed,

nominate a third person who is willing and ready to act to be a member and

chairperson of the conciliation board and the minister shall appoint him or her

a member and chairperson of the conciliation board.

(5) Where the 2 members appointed under subsection

(2) or (3) fail or neglect to make a nomination within 5 days after the appointment

of the second member, the minister shall immediately appoint, as the third

member and chairperson of the conciliation board, a person who in his or her

opinion is qualified and who has consented to so act.

(6) A person who has a monetary interest in the

matters referred to the conciliation board or who is acting, or has within a

period of 6 months preceding the date of his or her appointment acted, in the capacity

of solicitor, legal adviser, counsel or paid agent of either of the parties

shall not be appointed to or act as a member of a conciliation board.

(7) The members of a conciliation board shall be

paid the remuneration that may be fixed by the Lieutenant-Governor in Council

and those actual and reasonable expenses that are incurred by them in the discharge

of their duties.

(8) When a conciliation board has been appointed,

the minister shall immediately notify the parties of the names of the members

of the board.

(9) Where the minister has given notice to the

parties that a conciliation board has been appointed under this Act, it shall

be presumed that the board described in the notice has been established in accordance

with this Act, and no order may be made or process entered or proceeding taken

in a court to question the granting or refusal of that board or to review,

prohibit or restrain its establishment or its proceedings.

Removal and replacement

of members

102. Where,

in the opinion of the minister, a conciliation board or a member of it is

unduly or unnecessarily deferring or delaying or attempting to defer or delay

the hearing or determination of a matter pending before that board, the

minister

(

a) may remove the board or a member of the board;

and

(

b) shall serve notice on the party who appointed

a member who has been removed or, where the chairperson has been removed, on

the remaining members of the board who have not been removed requiring the

nomination in accordance with

section 101 of a person to be a member of the

board to replace the member who has been removed,

and the provisions of that

section apply,

with the necessary changes, to the appointment of members of a conciliation

board required by a notice served under this section.

Oath of office

103. Each

member of a conciliation board shall before so acting take and sign before a

person authorized to administer an oath or affirmation, and file with the

minister an oath or affirmation in the following form:

"I, A.B., make oath and say (affirm)

that I will faithfully, truly and impartially to the best of my knowledge,

skill, and ability, execute and perform the office of member of the

conciliation board appointed to . . . . . . . . . . . . . . . . . . . . . and

will not, except in the discharge of my duties, disclose to a person the

evidence or other matter brought before the board." (Where an oath is

taken, add "So help me God".)

Terms of

reference

(1) Where

the minister has appointed a conciliation board, he or she shall immediately

deliver to it a statement of the matters referred to it, and may either before

or after the board makes its report amend or add to the statement.

(2) After a conciliation board has made its

report, the minister may direct it to reconsider and clarify or amplify the

report or a part of it or to consider and report on a new matter added to the

statement of matters referred to it.

(3) Where the minister has requested the

reconsideration, clarification or amplification of a report or a part of it or

the consideration of and report on a new matter under subsection (1) or (2),

the report of the conciliation board concerned shall, for the purpose of this

Act, be considered not to have been received by the minister until he or she

receives the supplementary or additional report requested by him or her under

either of those subsections.

Conciliation

(1) A

conciliation board shall, immediately after the appointment of the chairperson,

try to bring about agreement between the parties in relation to the matters

referred to it.

(2) Except as otherwise provided in this Act, a

conciliation board may determine its own procedure but shall give full

opportunity to all parties to present evidence and to make representations.

(3) The chairperson may, after consultation with

the other members of the board, fix the time and place of sittings of a

conciliation board and shall notify the parties as to the time and place so

fixed.

(4) The chairperson and one other member of a

conciliation board constitute a quorum, but in the absence of a member, the

other members shall not proceed unless the absent member has been given reasonable

notice of the sitting.

(5) The decision of a majority of the members

present at a sitting of a conciliation board is the decision of that board, and

in the event that the votes are equal the chairperson has a second or casting

vote.

(6) The chairperson shall forward to the minister

a detailed certified statement of the sittings of the conciliation board, and

of the members and witnesses present at each sitting.

(7) The report of the majority of its members is

the report of the conciliation board.

Witnesses and

documents

(1) A

conciliation board has the power of summoning before it witnesses and of

requiring them to give evidence on oath or affirmation orally or in writing,

and to produce those documents and things that the board considers necessary to

the full investigation and consideration of the matters referred to it, but the

information so obtained from the documents shall not, except as the board

considers expedient, be made public.

(2) A member of a conciliation board has the

powers that are or may be conferred on a commissioner under the Public Inquiries Act, 2006.

Entry and inspection

107. A

member of a conciliation board or a person who has been authorized for that

purpose in writing by the board may, without authority other than this section,

enter a building, ship, vessel, factory, workshop, place or premises in the

province where work is being or has been done or started by employees or in

which an employer carries on business or a matter or thing is taking place or

has taken place, concerning the matters referred to that board, and may inspect

and view work, material, machinery, appliance or articles there and interrogate

persons in or upon the place, matter or thing and a person shall not hinder or

obstruct the board or a person, so authorized by it, in the exercise of a power

conferred by this

section or refuse to answer an interrogation made under this

section.

Report to

minister

108. A

conciliation board shall, within 14 days after the appointment of the

chairperson or within a longer period that may be agreed upon by the parties or

that may be allowed by the minister, report its findings and recommendations to

the minister.

Copy and publication

109. On

receipt of the report of a conciliation board, the minister shall immediately

send a copy to each party and he or she may publish the report in the manner

that he or she thinks appropriate.

Parties to acknowledge

receipt

110. Each

party to whom a copy of a report is sent in accordance with

section 109 shall,

within 7 days after the date on which that party receives a copy of the report,

notify the minister in writing

(

a) whether the recommendations contained in the

report have been accepted or rejected wholly or partly; and

(

b) which recommendations have been rejected.

Filing of

evidence with minister

(1) A

conciliation board shall, when reporting its findings and recommendations to

the minister under

section 108, file with the minister in a sealed package the

record of proceedings before the board and documents and exhibits received by

the board in evidence or filed with the board during the proceedings, other

than documents or exhibits that are returned to a person who filed them with

the board for the purpose of the proceedings.

(2) A person shall not break the seal affixed to a

package filed with the minister in accordance with subsection (1), except under

a written order of the minister for the purpose of obtaining documents or

exhibits that are returnable to a person who filed them with the board for the

purpose of its proceedings.

(3) Notwithstanding anything to the contrary

contained in the Management of

Information Act , the contents of

a package filed with the minister in accordance with subsection (1) may be destroyed

after the expiration of 3 years from the date it was filed under that subsection.

Evidential value

of report

112. A

report of a conciliation board and testimony or proceedings before a board is

not receivable in evidence in a court in the province except in the case of a

prosecution for perjury.

Parties bound

113. Where

a conciliation board has been appointed, the parties may before or after the

board makes its report, by a written agreement, bind themselves to adopt the

recommendations of the board, and where an agreement is made, the parties to it

shall give effect to the recommendations.

Failure to report

114. Failure

of a conciliation officer or conciliation board to report to the minister

within the time provided in this Act does not invalidate the proceedings of the

officer or the board nor does it terminate the authority of the board or

officer under this Act.

Appointment of

mediator

(1) The

minister may, instead of appointing a conciliation board, appoint a person from

within or outside the public service as a mediator to endeavour to bring about

an agreement between the parties.

(2) The minister may, after notice to begin

collective bargaining has been given under this Act, appoint a person, whether

or not he or she is an employee in the public service, as a mediator to confer

with the parties to the collective bargaining, where the minister is of the

opinion that the appointment is likely to contribute to more harmonious industrial

relationships between the parties.

(3) Where the minister has appointed a mediator

after a conciliation officer has been appointed, the appointment of the

conciliation officer is terminated.

(4) Sections 102 to 108 and 111 to 114 apply, with

the necessary changes, to and in respect of a mediator appointed under this

section

as if he or she were a conciliation board.

(5) When in respect of a dispute the conditions

prescribed in sections 116 and 117 have

been fulfilled and the dispute has not been settled, or where the minister

considers it necessary, he or she may appoint as a conciliator or mediator a

person, whether or not he or she is an employee in the public service,

designated by him or her who shall attempt to secure a settlement of a

difference between the parties to the dispute and make a report within the time

that the minister may indicate and prescribe in the appointment.

PART VI

STRIKES AND LOCKOUTS

Conditions precedent

116. Where

a trade union or a council of trade unions, on behalf of a unit of employees,

is entitled by notice under this Act to require an employer or an employers'

organization to begin collective bargaining, with a view to the conclusion or

renewal or revision of a collective agreement, the bargaining agent shall not

take a strike vote or authorize or participate in the taking of a strike vote

of employees in the unit or declare or authorize a strike of the employees in

the unit, and no employee in the unit shall strike, and the employer or the

employers' organization shall not declare or cause a lockout of the employees

in the unit, until the bargaining agent and the employer or employers' organization

or representatives, authorized by them in that behalf, have bargained

collectively in good faith and have failed to conclude a collective agreement,

and

(

a) a conciliation officer has been appointed to

try to bring about an agreement between the parties, and 15 days have elapsed

from the date on which the report of the conciliation officer was received by the

minister and a conciliation board has not been appointed; or

(

b) a conciliation board has been appointed to try

to bring about an agreement between the parties and 7 days have elapsed from

the date on which the report of the conciliation board was received by the

minister.

No strikes while

agreement in force

(1) Except

in respect of a dispute that is subject to subsection (2),

(

a) an employer or employers' organization that is

bound by or that is a party to a collective agreement shall not declare or

cause a lockout with respect to an employee bound by the collective agreement

or on whose behalf the collective agreement was entered into; and

(

b) during the term of the collective agreement,

an employee, who is bound by a collective agreement or on whose behalf a

collective agreement has been entered into, shall not go on strike and a

bargaining agent that is a party to the agreement shall not declare or

authorize a strike of that employee.

(2) Where a collective agreement is in force and a

dispute arises between the parties to it with reference to the revision of a

provision of the agreement that by virtue of the agreement is subject to

revision during the term of the agreement, the employer who is bound by it or

who is a party to it shall not declare or cause a lockout with respect to an

employee bound by it or on whose behalf the collective agreement has been

entered into, and no employee shall strike and no bargaining agent that is a

party to the agreement shall declare or authorize a strike of the employee

until the bargaining agent of the employees and the employer or representatives

authorized by them on their behalf have bargained collectively and have failed

to conclude an agreement on the matters in dispute, and

(

a) a conciliation officer has been appointed to

try to bring about an agreement between the parties, and 15 days have elapsed

from the date on which the report of the conciliation officer was received by

the minister and a conciliation board has not been appointed; or

(

b) a conciliation board has been appointed to try

to bring about an agreement between the parties and 7 days have elapsed from

the date on which the report of the conciliation board was received by the

minister.

Conditions precedent

to strikes and lockouts

(1) An

employee in a unit shall not strike and an employer or employers' organization

shall not declare or cause a lockout of employees, until a bargaining agent has

become entitled on behalf of the unit of employees to require their employer by

notice under this Act to begin collective bargaining with a view to the

conclusion or renewal or revision of a collective agreement and the provisions

section 116 or 117 have been complied with.

(2) A trade union that is not entitled to bargain

collectively under this Act on behalf of a unit of employees shall not declare

or authorize a strike of employees in that unit.

Strike vote mandatory

(1) Notwithstanding

another provision of this Part, a trade union or person shall not declare or

authorize a strike and an employee shall not strike until after a vote has been

taken by secret ballot of the employees in the unit affected as to whether to

strike and a majority of the employees voting have voted in favour of a strike.

(2) Notwithstanding another provision of this

Part, a council of trade unions formed under

section 70.8 shall not declare or

authorize a strike and an employee shall not strike until each trade union

forming the council of trade unions has taken a vote under subsection (1) and a

majority of those trade unions have been given a mandate by the employees who

they represent to declare or authorize a strike.

(3) The strike vote required by subsection (1) or

(2) is in addition to the other conditions precedent to a strike contained in

this Part.

(4) A strike vote taken as required by this

section shall be conducted in such a manner, whether by mail or otherwise, that

those employees entitled to vote have ample opportunity to cast their ballots.

Condition

precedent to strike on platform

(1) Notwithstanding

another provision of this Part, a trade union, or a council of trade unions, or

person shall not declare or authorize a strike and an employee shall not

strike, and an employer shall not lockout its employees, until the parties to a

collective agreement in relation to an offshore petroleum production platform

have entered into an agreement setting out work force requirements and

procedures necessary to ensure the orderly and safe shutdown and maintenance of

the platform in the event of a strike or lockout of employees employed on the

platform.

(2) Where the parties to which subsection

(1) applies have not reached an agreement required under subsection (1) 90 days

prior to the expiry of a collective agreement between the parties, either party

may apply to the board and after the examination that the board considers

(3) An agreement entered into under subsection

(1) or settled by the board under subsection (2) is binding on the parties to it or

affected by it, notwithstanding the expiry of the collective agreement between

the parties.

(4) In this

section

(a) "employees" means employees employed

on an offshore petroleum production platform other than construction and start

up employees; and

(b) "employer" means an employer who is

a member of the employers' organization formed under

section 56.1.

Liability of

employees

121. Where

an employee is on a strike that is not contrary to this Act, no action lies

against that employee or against a bargaining agent acting on behalf of that

employee in respect of damages in contract for which the employer has become

liable to another person as a result of the strike, but nothing contained in

this

section exempts an employee or bargaining agent from liability for a

tortious act.

Suspension or

discontinuance of operations

121.1 Nothing

in this Act prohibits the suspension or discontinuance of operation in an

employer's establishment, in whole or in part, not constituting a lockout or

strike.

Transitional

10. Where, before the coming into force of this

Act, an application for certification was received by the board, sections 47 and

47.1 as they existed before the coming into force of this Act shall apply to

that application.

RSNL1990 cF-18

Amdt.

(1) Section 20 of the Fishing Industry Collective Bargaining Act is amended by deleting

the reference "section 79" and substituting the reference "section

98".

(2) Section 33 of the Act is amended by deleting

the reference "Section 106" and substituting the reference "Section

99".

(3) Section 45 of the Act is amended by deleting the reference "Section 121" and

substituting the reference "Section 114".

RSNL1990 cI-18

Amdt.

Section 47 of the Interns and Residents Collective Bargaining Act is amended by

deleting the number and comma "112,".

RSNL1990 cP-42

Amdt.

Section 48 of the Public Service Collective Bargaining Act is amended by deleting the

number and comma "112,".

CNLR 746/96

Amdt.

Section 6 of the Labour Relations Regulations is amended by

(

a) deleting the reference "section 79"

and substituting the reference "section 98"; and

(

b) deleting the reference "section 80"

and substituting the reference "section 100".

Queen's Printer