First contract arbitration
41.  (1) A first collective agreement shall be settled by arbitration in accordance with this section, (a) if a party to the negotiations requests first agreement arbitration in the circumstances described in subsection (1.2); or (b) if the Board makes a direction to that effect on an application under subsection (1.3). Initiation (1.1) For the purposes of this section, first agreement arbitration is considered to have been initiated on the date on which a request described in clause (1)(a) is made or on the date on which a direction described in clause (1)(b) is made. Arbitration on request (1.2) A party may make a request to the Minister for first agreement arbitration, (a) if thirty days have elapsed since the day on which it became lawful for the employees to strike and the employer to lock out employees; and (b) if no collective agreement has been entered into. Arbitration on application to the Board (1.3) A party may apply to the Board for first agreement arbitration, (a) if 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; and (b) if the parties are unable to effect a first collective agreement. Proposed collective agreement (1.4) The party seeking first agreement arbitration shall include with the request or application a copy of a proposed collective agreement which the party is prepared to execute and shall provide a copy of it to the other party to the negotiations. Idem (1.5) Within ten days after receiving the copy of the proposed collective agreement, the other party to the negotiations shall file with the Minister or the Board, as the case may be, a copy of a proposed collective agreement which that party is prepared to execute. 1992, c.21, s.19(1). Duty of Board (2) The Board shall consider and make its decision on an application under subsection (1.3) within thirty days of receiving the application and it shall direct the settlement of a first collective agreement by arbitration where, irrespective of whether section 15 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. R.S.O. 1990, c.L.2, s.41(2); 1992, c.21, s.19(2). Board of arbitration (3) If first agreement arbitration is initiated, a board of arbitration composed of three members shall settle the first collective agreement between the parties. Final offer selection (3.1) The parties may agree that the board of arbitration shall settle the first collective agreement by final offer selection. Appointments to board (4) Each party shall appoint one member of the board of arbitration within ten days after first agreement arbitration is initiated and shall inform the other party of its appointee. Idem (5) Within five days after the second of the members is appointed to the board of arbitration, the two appointees shall appoint a third member of the board who shall act as its chair. 1992, c.21, s.19(3). Idem (6) If a party fails to make an appointment as required by subsection (4) or if the appointees fail to agree upon a chair within the time limited, the appointment shall be made by the Minister upon the request of either party. R.S.O. 1990, c.L.2, s.41(6); 1992, c.21, s.19(4). Idem (7) 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 110 applies to the board of arbitration, its decision and proceedings as if it were the Board. Idem (8) 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. R.S.O. 1990, c.L.2, s.41(7,8). Idem (9) Subsections 6(8), (9), (10), (12), (13), (14), (17) and (18) of the Hospital Labour Disputes Arbitration Act and subsections 45(8.1) and (10) of this Act apply with necessary modifications to a board of arbitration established under this section. R.S.O. 1990, c.L.2, s.41(9); 1992, c.21, s.19(5). Idem (10) The date of the first hearing of a board of arbitration appointed under this section shall not be later than twenty-one days after the appointment of the chair. Idem (11) A board of arbitration appointed under this section shall determine all matters in dispute and release its decision within forty-five days of the commencement of its hearing of the matter. Mediation (12) The Minister may appoint a mediator to confer with the parties and endeavour to effect a settlement. R.S.O. 1990, c.L.2, s.41(10-12). No strike or lock-out (13) If first agreement arbitration is initiated, the employees in the bargaining unit shall not strike and the employer shall not lock out the employees. Termination of strike (13.1) If first agreement arbitration is initiated during a strike or lock-out, the employees shall forthwith terminate the strike and the employer shall forthwith terminate the lock-out. Reinstatement (13.2) Upon the termination of a strike or lock-out, the employer shall forthwith reinstate the employees in the bargaining unit in the employment they had at the time the strike or lock-out began, (a) in accordance with any agreement between the employer and the trade union respecting reinstatement of the employees; or (b) if there is no agreement respecting reinstatement, 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 began, except as the Board may order for the purpose of allowing the employer to start up operations. 1992, c.21, s.19(6). Non-application (14) The requirement to reinstate employees applies despite the fact that replacement employees may be performing the work of employees in the bargaining unit, but subsection (13.1) 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. R.S.O. 1990, c.L.2, s.41(14); 1992, c.21, s.19(7). Working conditions (15) If first agreement arbitration is initiated, 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 14 shall continue in effect or, if altered before first agreement arbitration was initiated, be restored and continued in effect until the first collective agreement is settled unless the parties otherwise agree. 1992, c.21, s.19(8). Non-application (16) Subsection (15) 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. Matters to be accepted or considered (17) 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. Effect of settlement (18) 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 14. Extension of time (19) 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. Non-application (20) 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 129 as a bargaining agent for employers; or (b) where the agreement is a provincial agreement within the meaning of section 139. Application (21) 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 the 26th day of May, 1986, and the bargaining rights have been acquired since the 1st day of January, 1984 and continue to exist at the time of an application under subsection (1). R.S.O. 1990, c.L.2, s.41(16-21). Application for termination, etc. (22) Despite subsection (2), where an application under subsection (1.3) has been filed with the Board and a final decision on the application has not been issued by it and there has also been filed with the Board, either or both, (a) an application for a declaration that the trade union no longer represents the employees in the bargaining unit; and (b) an application for certification by another trade union as bargaining agent for employees in the bargaining unit, the Board shall consider the applications in the order that it considers appropriate and if it grants one of the applications, it shall dismiss any other application described in this section that remains unconsidered. R.S.O. 1990, c.L.2, s.41(22); 1992, c.21, s.19(9). Idem (23) An application for a declaration that a trade union no longer represents the employees in the bargaining unit is of no effect if it is filed with the Board after first agreement arbitration is initiated unless it is brought after the first collective agreement is settled and it is brought in accordance with subsection 58(2). Idem (24) An application for certification by another trade union as bargaining agent for employees in the bargaining unit is of no effect if it is filed with the Board after first agreement arbitration is initiated unless it is brought after the first collective agreement is settled and it is brought in accordance with subsections 5(4), (5) and (6). 1992, c.21, s.19(10). Procedure (25) The Arbitrations Act does not apply to an arbitration under this section. R.S.O. 1990, c.L.2, s.41(25).