43 (1) Where the parties are unable to effect a first collective agreement and the Minister has released a notice that it is not considered advisable to appoint a conciliation board or the Minister has released the report of a conciliation board, either party may apply to the Board to direct the settlement of a first collective agreement by arbitration. 2018, c. 14, Sched. 2, s. 8. Duty of Board (2) The Board shall consider and make its decision on an application under subsection (1) within 30 days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 17 has been contravened, it appears to the Board that the process of collective bargaining has been unsuccessful because of, (a) the refusal of the employer to recognize the bargaining authority of the trade union; (b) the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification; (c) the failure of the respondent to make reasonable or expeditious efforts to conclude a collective agreement; or (d) any other reason the Board considers relevant. 2018, c. 14, Sched. 2, s. 8. Choice of arbitrator (3) Where a direction is given under subsection (2), the first collective agreement between the parties shall be settled by a board of arbitration unless, within seven days of the giving of the direction, the parties notify the Board that they have agreed that the Board arbitrate the settlement. 2018, c. 14, Sched. 2, s. 8. Arbitration by Board (4) Where the parties give notice to the Board of their agreement that the Board arbitrate the settlement of the first collective agreement, the Board, (a) shall appoint a date for and commence a hearing within 21 days of the giving of the notice to the Board; and (b) shall determine all matters in dispute and release its decision within 45 days of the commencement of the hearing. 2018, c. 14, Sched. 2, s. 8. Same (5) The parties to an arbitration by the Board shall jointly pay to the Board for payment into the Consolidated Revenue Fund the amount determined under the regulations for the expense of the arbitration. 2018, c. 14, Sched. 2, s. 8. Private arbitration (6) Where the parties do not agree that the Board arbitrate the settlement of the first collective agreement, each party, within 10 days of the giving of the direction under subsection (2), shall inform the other party of the name of its appointee to the board of arbitration referred to in subsection (3) and the appointees so selected, within five days of the appointment of the second of them, shall appoint a third person who shall be the chair. 2018, c. 14, Sched. 2, s. 8. Same (7) If a party fails to make appointment as required by subsection (6) or if the appointees fail to agree upon a chair within the time limit, the appointment shall be made by the Minister upon the request of either party. 2018, c. 14, Sched. 2, s. 8. Same (8) A board of arbitration appointed under this section shall determine its own procedure but shall give full opportunity to the parties to present their evidence and make their submissions and section 116 applies to the board of arbitration, its decision and proceedings as if it were the Board. 2018, c. 14, Sched. 2, s. 8. Same (9) The remuneration and expenses of the members of a board of arbitration appointed under this section shall be paid as follows: 1. A party shall pay the remuneration and expenses of the member appointed by or on behalf of the party. 2. Each party shall pay one-half of the remuneration and expenses of the chair. 2018, c. 14, Sched. 2, s. 8. Same (10) Subsections 6 (8), (9), (10), (12), (13), (14), (17) and (18) of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of this Act apply with necessary modifications to a board of arbitration established under this section. 2018, c. 14, Sched. 2, s. 8. Same (11) The date of the first hearing of a board of arbitration appointed under this section shall not be later than 21 days after the appointment of the chair. 2018, c. 14, Sched. 2, s. 8. Same (12) A board of arbitration appointed under this section shall determine all matters in dispute and release its decision within 45 days of the commencement of its hearing of the matter. 2018, c. 14, Sched. 2, s. 8. Mediation (13) The Minister may appoint a mediator to confer with the parties and endeavour to effect a settlement. 2018, c. 14, Sched. 2, s. 8. Effect of direction on strike or lock-out (14) The employees in the bargaining unit shall not strike and the employer shall not lock out the employees where a direction has been given under subsection (2) and, where the direction is made during a strike by, or a lock-out of, employees in the bargaining unit, the employees shall forthwith terminate the strike or the employer shall forthwith terminate the lock-out and the employer shall forthwith reinstate the employees in the bargaining unit in the employment they had at the time the strike or lock-out commenced, (a) in accordance with any agreement between the employer and the trade union respecting reinstatement of the employees in the bargaining unit; or (b) where there is no agreement respecting reinstatement of the employees in the bargaining unit, on the basis of the length of service of each employee in relation to that of the other employees in the bargaining unit employed at the time the strike or lock-out commenced, except as may be directed by an order of the Board made for the purpose of allowing the employer to resume normal operations. 2018, c. 14, Sched. 2, s. 8. Non-application (15) The requirement to reinstate employees set out in subsection (14) applies despite the fact that replacement employees may be performing the work of employees in the bargaining unit, but subsection (14) does not apply so as to require reinstatement of an employee where, because of the permanent discontinuance of all or part of the business of the employer, the employer no longer has persons engaged in performing work of the same or a similar nature to work which the employee performed before the strike or lock-out. 2018, c. 14, Sched. 2, s. 8. Working conditions not to be altered (16) Where a direction has been given under subsection (2), the rates of wages and all other terms and conditions of employment and all rights, privileges and duties of the employer, the employees and the trade union in effect at the time notice was given under section 16 shall continue in effect, or, if altered before the giving of the direction, be restored and continued in effect until the first collective agreement is settled. 2018, c. 14, Sched. 2, s. 8. Non-application (17) Subsection (16) does not apply so as to effect any alteration in rates of wages or in any other term or condition of employment agreed to by the employer and the trade union. 2018, c. 14, Sched. 2, s. 8. Matters to be accepted or considered (18) In arbitrating the settlement of a first collective agreement under this section, matters agreed to by the parties, in writing, shall be accepted without amendment. 2018, c. 14, Sched. 2, s. 8. Effect of settlement (19) A first collective agreement settled under this section is effective for a period of two years from the date on which it is settled and it may provide that any of the terms of the agreement, except its term of operation, shall be retroactive to the day that the Board may fix, but not earlier than the day on which notice was given under section 16. 2018, c. 14, Sched. 2, s. 8. Extension of time (20) The parties, by agreement in writing, or the Minister may extend any time limit set out in this section, despite the expiration of the time. 2018, c. 14, Sched. 2, s. 8. Non-application (21) This section does not apply to the negotiation of a first collective agreement, (a) where one of the parties is an employers’ organization accredited under section 136 as a bargaining agent for employers; or (b) where the agreement is a provincial agreement within the meaning of section 151. 2018, c. 14, Sched. 2, s. 8. Application (22) This section applies to an employer and a trade union where the trade union has acquired or acquires bargaining rights for employees of the employer before or after May 26, 1986, and the bargaining rights have been acquired since January 1, 1984 and continue to exist at the time of an application under subsection (1). 2018, c. 14, Sched. 2, s. 8. Definitions (23) In subsections (24) to (29), “decertification application” means an application for a declaration that a trade union no longer represents the employees in a bargaining unit; (“requête en révocation de l’accréditation”) “displacement application” means an application for certification by a trade union, other than the trade union that represents the employees in a bargaining unit, as bargaining agent for those employees. (“requête en substitution”) 2018, c. 14, Sched. 2, s. 8. Application of subs. (25) (24) Subsection (25) applies if, (a) a decertification application or displacement application has been filed with the Board and before a final decision is made on it an application under subsection (1) is filed with the Board; or (b) an application under subsection (1) has been filed with the Board and before a final decision is made on it a decertification application or displacement application is filed with the Board. 2018, c. 14, Sched. 2, s. 8. Procedure in dealing with multiple applications (25) The Board shall proceed to deal with an application under subsection (1) before dealing with or continuing to deal with the decertification application or displacement application. 2018, c. 14, Sched. 2, s. 8. Same (26) If the Board gives a direction under subsection (2), it shall dismiss the decertification application or displacement application. 2018, c. 14, Sched. 2, s. 8. Same (27) If the Board dismisses the application under subsection (1), it shall proceed to deal with the decertification application or displacement application. 2018, c. 14, Sched. 2, s. 8. Same (28) A decertification application filed with the Board after the Board has given a direction under subsection (2) is of no effect unless it is brought after the first collective agreement is settled and unless it is brought in accordance with subsection 63 (2). 2018, c. 14, Sched. 2, s. 8. Same (29) A displacement application filed with the Board after the Board has given a direction under subsection (2) is of no effect unless it is brought after the first collective agreement is settled and unless it is brought in accordance with subsections 7 (4), (5) and (6). 2018, c. 14, Sched. 2, s. 8. Procedure (30) The Arbitration Act, 1991 does not apply to an arbitration under this section. 2018, c. 14, Sched. 2, s. 8. Section Amendments with date in force (d/m/y) 2000, c. 38, s. 5
- 30/12/2000 2017, c. 22, Sched. 2, s. 6 - 01/01/2018 2018, c. 8, Sched. 14, s. 1 (1, 2) - 08/05/2018; 2018, c. 14, Sched. 2, s. 8 - 21/11/2018