163.3 (1) If a provincial agreement that is the subject of an application under section 163.2 is not amended in accordance with that section within 14 days after the day on which the application was served on the affiliated bargaining agent, the applicant may give notice to the bargaining agent that it is referring the matter to a single arbitrator.  2000, c. 24, s. 7. Notice requirements (2) The notice of referral shall be in writing and shall, (a) state the name of the individual whom the organization making the referral nominates as the arbitrator; (b) set out the organization’s final offer with respect to the text of the amendments that the organization proposes to be made to the provincial agreement; and (c) be accompanied by copies of those statements and submissions under clauses 163.2 (5) (a) and (b) that were provided with the application made under subsection 163.2 (1) or (2).  2000, c. 24, s. 7. Restriction re subject matter of amendments (3) The amendments proposed in the final offer of the organization making the referral may deal only with those provisions of the provincial agreement that concern the matters permitted in the original application, as set out in subsection 163.2 (4).  2000, c. 24, s. 7. Restriction re subject matter of amendments (4) The organization making the referral may include in the notice of referral only those submissions that were included in the application under subsection 163.2 (1) or (2).  2000, c. 24, s. 7. Service of notice (5) The organization making the referral shall serve the notice of referral and the statements and submissions referred to in clause (2) (c) on the affiliated bargaining agent and shall serve a copy of the notice of referral without those statements and submissions, (a) on the employee bargaining agency of which the affiliated bargaining agent is a member; (b) if the organization making the referral is an employer bargaining agency, on any designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction; and (c) if the organization making the referral is a designated regional employers’ organization, on the employer bargaining agency that is a party to the provincial agreement and on any other designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction.  2000, c. 24, s. 7. Service of response (6) Within seven days after being served with a notice of referral, the affiliated bargaining agent, (a) shall serve a response on the organization that made the referral; and (b) shall serve a copy of the response, without the submissions, if any, referred to in clause (7) (c), on the organizations described in clauses (5) (a), (b) and (c).  2000, c. 24, s. 7. Form and content of response (7) The response shall be in writing and, (a) shall state whether the affiliated bargaining agent agrees to the appointment of the individual whom the referrer nominated as the arbitrator and, if it does not agree, name the individual whom the affiliated bargaining agent nominates as arbitrator; (b) shall set out the affiliated bargaining agent’s final offer with respect to the text of the amendments, if any, that it proposes to be made to the provincial agreement; and (c) shall set out any submissions that the affiliated bargaining agent believes are relevant to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to the kind of work, the market and the location to which the amendments would apply.  2000, c. 24, s. 7. Joint appointment of arbitrator (8) If the parties agree on the appointment of an arbitrator, they shall jointly appoint him or her and advise each organization that was served with copies of the notice of referral and response that they have done so.  2000, c. 24, s. 7. Failure to appoint (9) If, within seven days after the affiliated bargaining agent is served with a notice of referral under subsection (5), the bargaining agent and the organization making the referral have not appointed an arbitrator, either of them may make a written request to the Minister to appoint an arbitrator.  2000, c. 24, s. 7. Appointment by Minister (10) Within two days after receiving a request under subsection (9), the Minister shall appoint an arbitrator and shall inform the affiliated bargaining agent and the organization making the referral of the name and address of the arbitrator.  2000, c. 24, s. 7. Replacement (11) If the arbitrator who is appointed is unable or unwilling to perform his or her duties, a new arbitrator shall be appointed in accordance with subsections (8), (9) and (10).  2000, c. 24, s. 7. Appointment and proceedings not to be questioned (12) Where an individual has been appointed as an arbitrator under this section, it shall be presumed conclusively that the appointment was properly made and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.  2000, c. 24, s. 7. Notice of appointment (13) Where the Minister appoints an arbitrator, the parties shall advise each organization that was served with copies of the notice of referral and response that the Minister has done so.  2000, c. 24, s. 7. Notice and response delivered to arbitrator (14) When the organization making the referral and the affiliated bargaining agent appoint an arbitrator under subsection (8) or receive notice of an appointment under subsection (10), they shall each deliver to the arbitrator copies of the notice of referral and response, respectively.  2000, c. 24, s. 7. Other organizations (15) The organization making the referral shall advise the arbitrator of the names and mailing addresses of the organizations that were served with a copy of the notice of referral under clauses (5) (a), (b) or (c).  2000, c. 24, s. 7. Submission re factual error (16) If the organization that made the referral to the arbitrator believes that the affiliated bargaining agent’s response under subsection (7) contains a factual error, the organization may make a written submission to the arbitrator concerning the alleged error.  2000, c. 24, s. 7. Restriction (17) The submission made under subsection (16) shall contain no new arguments in support of the organization’s position with respect to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage.  2000, c. 24, s. 7. Submission served on affiliated bargaining agent (18) An organization that makes a written submission to the arbitrator under subsection (16) shall also serve that submission on the affiliated bargaining agent at the same time.  2000, c. 24, s. 7. Response to submission under subs. (16) (19) If the organization that made the referral makes a submission under subsection (16), the affiliated bargaining agent may make a written submission to the arbitrator in response and shall also serve a copy of it on the organization at the same time.  2000, c. 24, s. 7. Restriction (20) The submission made under subsection (19) shall contain no new arguments in support of the affiliated bargaining agent’s position with respect to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage.  2000, c. 24, s. 7. Written hearing (21) After being appointed, the arbitrator shall hold a written hearing.  2000, c. 24, s. 7. Restriction on what arbitrator may consider (22) Subject to subsection (23), the arbitrator shall consider only the following when making a decision: 1. The statements and submissions under clauses 163.2 (5) (a) and (b) that were included with the original application under subsection 163.2 (1) or (2), as the case may be. 2. The final offer of the organization making the referral to arbitration. 3. The affiliated bargaining agent’s final offer as set out under clause (7) (b). 4. The submissions contained in the affiliated bargaining agent’s notice under clause (7) (c).  2000, c. 24, s. 7. Use of submissions under subss. (16) and (19) (23) The arbitrator may consider submissions made under subsections (16) and (19) but only with respect to matters of fact.  2000, c. 24, s. 7. Same (24) In considering a submission made under subsection (16) or (19), the arbitrator shall not consider any matters of opinion or any new arguments contrary to subsection (17) or (20).  2000, c. 24, s. 7. Oral, electronic hearings (25) The arbitrator may convene an oral or electronic hearing if he or she feels it is necessary to do so in order to resolve an issue arising from a submission made under subsection (16) or (19) or in order to resolve any other issue he or she feels cannot be adequately addressed without such a hearing.  2000, c. 24, s. 7. Failure to serve an organization (26) If the arbitrator becomes aware that an organization that should have been served with a copy of a notice of referral under subsection (5) or a copy of a response under subsection (6) was not so served, the arbitrator shall arrange for service on that organization.  2000, c. 24, s. 7. Arbitrator’s powers (27) Subsection 48 (12) applies with necessary modifications with respect to the arbitrator.  2000, c. 24, s. 7. No amendment of final offers (28) The arbitrator shall not consider any purported amendment to a final offer.  2000, c. 24, s. 7. Decision (29) After considering the submissions and final offers which he or she may consider under this section, the arbitrator, (a) shall determine whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to the kind of work, the market and the location indicated in the application; (b) if the arbitrator finds that the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage, shall determine whether the competitive disadvantage would be removed if the provincial agreement were amended in accordance with either of the final offers; (c) if amendment of the provincial agreement in accordance with only one of the final offers would remove the competitive disadvantage, shall select that final offer; (d) if amendment of the provincial agreement in accordance with neither of the final offers would remove the competitive disadvantage, shall select the final offer that most reduces the disadvantage; and (e) if amendment of the provincial agreement in accordance with either of the final offers would remove the competitive disadvantage, shall select the final offer that would be less of a deviation from the provincial agreement.  2000, c. 24, s. 7. Timing of decision (30) Subject to subsection (32), the arbitrator shall give his or her written decision to the parties and any organizations that were served under subsection (5) or (26) within 12 days after the day on which he or she was appointed.  2000, c. 24, s. 7. No reasons (31) The decision shall not include reasons.  2000, c. 24, s. 7. Extension of time by agreement (32) The time limit set out in subsection (30) may be extended by agreement of the organization that made the referral, the affiliated bargaining agent and all of the organizations that were served with copies of the notice of referral.  2000, c. 24, s. 7. Parties to prepare document (33) If the arbitrator selects a final offer containing amendments to the provincial agreement, the parties to the provincial agreement shall prepare and execute a document giving effect to his or her decision within five days after the organization that made the referral is advised of the arbitrator’s decision.  2000, c. 24, s. 7. When document prepared by arbitrator (34) If the parties have not prepared and executed a document within the time required by subsection (33), either party may ask the arbitrator to prepare the document and the arbitrator shall do so and provide the document to the organization that made the referral.  2000, c. 24, s. 7. Deemed execution (35) If the arbitrator has prepared a document and either party to the provincial agreement has not executed it within five days after the arbitrator provided it to the organization that made the referral, the document shall be deemed to have been executed by both parties.  2000, c. 24, s. 7. Effective date of amended provincial agreement (36) The amendments to the provincial agreement, as they appear in the document prepared and executed under subsections (33) to (35), shall be deemed to have come into effect on the day of the arbitrator’s decision.  2000, c. 24, s. 7. Fees and expenses (37) The organization that made the referral and the affiliated bargaining agent shall each pay one-half of the fees and expenses of the arbitrator.  2000, c. 24, s. 7. Non-application of Arbitration Act, 1991 (38) The Arbitration Act, 1991 does not apply to an arbitration under this section.  2000, c. 24, s. 7. Judicial review (39) On an application for judicial review of the arbitrator’s decision, no determination or selection that the arbitrator was required to make under subsection (29) shall be overturned unless the determination or selection was patently unreasonable.  2000, c. 24, s. 7. Application of section (40) This section applies only with respect to provincial agreements that come into operation after the day section 7 of the Labour Relations Amendment Act (Construction Industry), 2000 comes into force.  2000, c. 24, s. 7. Section Amendments with date in force (d/m/y) 2000, c. 24, s. 7
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