40:1 Bill 7, York Region Transit Labour Disputes Resolution Act, 2011

Shurman, Peter

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Bill 7                                                            2011

An Act to provide for the resolution of labour disputes involving companies that provide public transit services to The Regional Municipality of York

CONTENTS

 

Preamble

Interpretation and Application of Act

1.

Definitions

2.

Application

Strikes and Lock-outs

3.

Restoration of services

4.

Strikes and lock-outs prohibited

5.

No alteration of working conditions

6.

Offences

Arbitration

7.

Arbitration

8.

Appointment of arbitrator

9.

Selection of method

10.

Procedure

11.

Notice of agreement to recommence

12.

Powers of arbitrator

13.

Duty of arbitrator

14.

Remuneration and expenses

15.

Continued negotiation

16.

Arbitrator’s award, retroactive terms

17.

Filing of awards

General

18.

Delegation

19.

Mailed notice

20.

Transition

21.

Regulations

22.

Review

23.

Commencement

24.

Short title

______________

Preamble

The Regional Municipality of York has contracted with three companies to provide public transit to millions of passengers each year in York Region.

Each of the three companies engages in collective bargaining with multiple bargaining agents to establish terms and conditions of employment. The last collective agreements between each of the three companies and the bargaining agents have expired. Work stoppages involving these parties, such as the current one, and the resulting disruption of transit services give rise to serious public health and safety, environmental, and economic concerns.

The public interest requires that the present work stoppage be terminated and a dispute resolution mechanism be introduced that encourages and respects the process of collective bargaining and ensures access to fair and neutral arbitration to resolve impasses between the employers and their bargaining agents.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation and Application of Act

Definitions

   1.  (1)  In this Act,

“bargaining agent” means a trade union that has been certified or voluntarily recognized under the Labour Relations Act, 1995 to represent a bargaining unit of employees of an employer; (“agent négociateur”)

“employee”, with respect to an employer, means an employee of the employer; (“employé”)

“employer” means each one of the following that have a contract with The Regional Municipality of York to provide public transit services: First Student Canada; Miller Transit, Ltd. and (York BRT, VIVA) Veolia Transportation, Inc.; (“employeur”)

“Minister” means the Minister of Labour or any other member of the Executive Council to whom responsibility for the administration of this Act is assigned or transferred under the Executive Council Act; (“ministre”)

“party” means an employer, on the one hand, or a bargaining agent for a bargaining unit of employees, on the other hand, and “parties” means the two of them. (“partie”, “parties”)

Same

   (2)  Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act, 1995.

Application

   2.  (1)  This Act applies to,

  (a)  each of the employers;

  (b)  bargaining agents who represent a bargaining unit of employees; and

   (c)  employees who are represented by a bargaining agent.

Application of Labour Relations Act, 1995

   (2)  Except as modified by this Act, the Labour Relations Act, 1995 applies to each of the employers and to the employees and the bargaining agents who represent the employees.

Strikes and Lock-outs

Restoration of services

   3.  (1)  As soon as this Act receives Royal Assent, each of the employers shall use all reasonable efforts to operate and continue to operate its undertakings, including any operations interrupted during any lock-out or strike that is in effect immediately before this Act receives Royal Assent.

Termination of lock-out

   (2)  As soon as this Act receives Royal Assent, each of the employers shall terminate any lock-out of employees that is in effect immediately before this Act receives Royal Assent.

Termination of strike

   (3)  As soon as this Act receives Royal Assent, each of the bargaining agents shall terminate any strike by employees that is in effect immediately before this Act receives Royal Assent.

Same, employees

   (4)  As soon as this Act receives Royal Assent, each employee shall terminate any strike that is in effect before this Act receives Royal Assent and shall, without delay, resume the performance of the duties of his or her employment or shall continue performing them, as the case may be.

Exception

   (5)  Subsection (4) does not preclude an employee from not reporting to work and performing his or her duties for reasons of health or by mutual consent of the employee and the employer.

Strikes and lock-outs prohibited

   4.  (1)  Despite anything in the Labour Relations Act, 1995, no employees shall strike and no employer shall lock them out.

Application of Labour Relations Act, 1995

   (2)  Sections 81 and 82, subsection 83 (1) and sections 84, 100, 101 and 103 of the Labour Relations Act, 1995 apply with necessary modifications under this Act as if those provisions were enacted in and form part of this Act.

Unlawful strike or lock-out

   (3)  A strike or lock-out in contravention of section 3 is deemed to be an unlawful strike or lock-out for the purposes of the Labour Relations Act, 1995.

No alteration of working conditions

   5.  (1)  Despite subsection 86 (1) of the Labour Relations Act, 1995, if notice has been given under section 16 or 59 of that Act and no collective agreement is in operation,

  (a)  an employer shall not, except with the consent of the bargaining agent, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees unless the right of the bargaining agent to represent the employees has been terminated; and

  (b)  the bargaining agent shall not, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees.

Same, transitional

   (2)  If a collective agreement between an employer and its employees expires before the day this Act receives Royal Assent, then until a new collective agreement with respect to the bargaining unit is executed by the parties or comes into force under this Act, the terms and conditions of employment that applied with respect to the employees in that unit on the day before the first day on which it became lawful for any of those employees to strike continue to apply, unless the parties agree otherwise.

Offences

   6.  Except where inconsistent with this Act, sections 104, 105, 106, 107 and 109 of the Labour Relations Act, 1995 apply with necessary modifications under this Act as if those sections were enacted in and form part of this Act.

Arbitration

Arbitration

   7.  (1)  The parties are deemed to have referred to an arbitrator, on the day this Act receives Royal Assent, all matters remaining in dispute between them on that day with respect to the terms and conditions of employment of the employees.

Notice of no collective agreement

   (2)  If a collective agreement between an employer and its employees expires on or after the day this Act receives Royal Assent and a conciliation officer appointed under section 18 of the Labour Relations Act, 1995 is unable, within the time allowed under section 20 of that Act, to effect a collective agreement between each employer and its employees to succeed the expired agreement, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement and sections 19 and 21 of that Act shall not apply.

Arbitration

   (3)  If the Minister has informed the parties under subsection (2) that the conciliation officer has been unable to effect a collective agreement, the matters remaining in dispute between the parties shall be decided by arbitration in accordance with this Act.

Appointment of arbitrator

   8.  (1)  Within seven days after the day this Act receives Royal Assent or the day on which the Minister has informed the parties under subsection 7 (2) that the conciliation officer has been unable to effect a collective agreement, the parties shall appoint a person as arbitrator and forthwith notify the Minister of the name and address of the person appointed.

Extension of time

   (2)  The parties by a mutual agreement in writing may extend the period of seven days mentioned in subsection (1) for one further period of seven days.

Notice to Minister

   (3)  If the parties extend the period under subsection (2), they shall inform the Minister.

Appointment by Minister

   (4)  If the parties fail to notify the Minister within the time set out in subsection (1) or the time extended under subsection (2), the Minister shall forthwith appoint as arbitrator a person who is, in the opinion of the Minister, qualified to act and notify the parties of the name and address of the person appointed.

Replacement

   (5)  If the person appointed as arbitrator is unable or unwilling to perform his or her duties so as to make an award, the Minister shall forthwith appoint another person as arbitrator and the arbitration process shall begin anew.

Restriction

   (6)  No person shall be appointed as an arbitrator under this Act who has any pecuniary interest in the matters coming before him or her or who is acting or has, within a period of six months preceding the date of his or her appointment, acted as solicitor, counsel or agent of either of the parties.

Not subject to judicial review

   (7)  It is conclusively determined that the appointment of an arbitrator made under this section is properly made, and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.

Selection of method

   9.  (1)  If the parties appoint the arbitrator, they shall select the method of arbitration.

Failure to select

   (2)  The method of arbitration shall be mediation-arbitration unless the parties select a different method of arbitration.

Selection by Minister

   (3)  If the Minister appoints the arbitrator, the Minister shall select the method of arbitration.

Same, mediation-arbitration

   (4)  The Minister shall select mediation-arbitration as the method of arbitration unless the Minister is of the view that another method is more appropriate.

Same, final offer selection

   (5)  The Minister shall not select final offer selection without mediation as the method of arbitration.

Same, mediation-final offer selection

   (6)  The Minister shall not select mediation-final offer selection as the method of arbitration unless the Minister, in his or her sole discretion, selects that method because he or she is of the view that it is the most appropriate method having regard to the nature of the dispute.

Procedure

   10.  (1)  Subject to subsection (2), the arbitrator shall fix the time and place of the proceedings and shall notify the Minister of the time and place and the Minister shall notify the parties.

Commencement of proceedings

   (2)  The arbitrator shall begin the proceedings within 30 days after he or she is appointed.

Order to expedite proceedings

   (3)  If an arbitrator has been appointed, the arbitrator shall keep the Minister advised of the progress of the arbitration and if the arbitrator advises the Minister that an award has not been rendered within the time set out in subsection 13 (6) or within the time extended under subsection 13 (7), the Minister may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that an award will be rendered within a reasonable time.

Time for submission of information

   (4)  If the method of arbitration is mediation-arbitration or mediation-final offer selection, the arbitrator may, after consulting with the parties, set a date after which a party may not submit information to the arbitrator unless,

  (a)  the information was not available prior to the date;

  (b)  the arbitrator permits the submission of the information; and

   (c)  the other party is given an opportunity to make submissions concerning the information.

Procedure

   (5)  Subject to section 9 and this section, the arbitrator shall determine his or her own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.

Notice of agreement to recommence

   11.  (1)  If the Minister appointed the arbitrator, the parties may, at any time before the arbitrator renders an award, jointly serve written notice on the Minister that they have agreed that the arbitration should be recommenced before a different arbitrator.

Termination of appointment

   (2)  If the parties serve notice on the Minister under subsection (1), the appointment of the arbitrator is terminated.

Effective date of termination

   (3)  The termination is effective on the day the Minister is served with the notice.

Obligation to appoint

   (4)  Within seven days after the day the Minister is served with the notice, the parties shall jointly appoint, under subsection 8 (1), a person who agreed to act and sections 8 to 10 and this section apply with respect to the appointment.

Powers of arbitrator

   12.  An arbitrator appointed under this Act has all the powers of a board of arbitration under the Labour Relations Act, 1995.

Duty of arbitrator

   13.  (1)  The arbitrator shall examine into and decide on matters that are in dispute and any other matters that appear to him or her necessary to be decided in order to conclude a collective agreement between the parties, but the arbitrator shall not decide any matters that come within the jurisdiction of the Board.

Criteria

   (2)  In making an award, the arbitrator shall take into consideration all factors it considers relevant, including the following criteria:

    1.  The employer’s ability to pay in light of its fiscal situation.

    2.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

    3.  The economic situation in Ontario and York Region.

    4.  A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.

    5.  The employer’s ability to attract and retain qualified employees.

    6.  The purposes of the Public Sector Dispute Resolution Act, 1997.

Arbitrator to remain seized of matters

   (3)  The arbitrator shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.

Procedure

   (4)  The Arbitration Act, 1991 does not apply to arbitrations under this Act.

Same

   (5)  The Statutory Powers Procedure Act does not apply to proceedings before an arbitrator under this Act.

Time for decision

   (6)  The arbitrator shall give an award within 90 days after he or she is appointed.

Extension

   (7)  The parties may agree to extend the time described in subsection (6), either before or after the time has passed.

Remuneration and expenses

   14.  Each party shall pay one-half of the arbitrator’s remuneration and expenses.

Continued negotiation

   15.  (1)  Until an award is made, nothing in this Act prohibits the parties from continuing to negotiate with a view to making a new collective agreement and they are encouraged to do so.

New collective agreement concluded by parties

   (2)  If the parties execute a new collective agreement before an award is made and notify the arbitrator of the fact, the proceedings under this Act are terminated.

Arbitrator’s award

   (3)  If, during the bargaining under this Act or during the proceedings before the arbitrator, the parties have agreed on some matters to be included in the collective agreement and have notified the arbitrator in writing of the matters agreed on, the matters to be decided by the arbitrator shall be confined to the matters not agreed on by the parties and to all other matters that appear to the arbitrator necessary to be decided to conclude a collective agreement between the parties.

Same

   (4)  If the parties have not notified the arbitrator in writing that, during the bargaining under this Act or during the proceedings before the arbitrator, they have agreed on some matters to be included in the collective agreement, the arbitrator shall decide all matters in dispute and all other matters that appear to him or her necessary to be decided to conclude a collective agreement between the parties.

Execution of agreement

   (5)  Within five days of the date of the award of the arbitrator or whatever longer period that the parties agreed on in writing, the parties shall prepare and execute a document giving effect to the award of the arbitrator and any agreement of the parties, and the document constitutes a collective agreement.

Preparation of agreement by arbitrator

   (6)  If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the award of the arbitrator and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the arbitrator in writing forthwith, and the arbitrator shall prepare a document in the form of a collective agreement giving effect to the award of the arbitrator and any agreement of the parties and submit the document to the parties for execution.

Failure to execute agreement

   (7)  If the parties or either of them fail to execute the document prepared by the arbitrator within a period of five days from the day of its submission by the arbitrator to them, the document shall come into effect as though it had been executed by the parties and the document constitutes a collective agreement under the Labour Relations Act, 1995.

Arbitrator’s award, retroactive terms

   16.  Despite section 5, in making his or her award, the arbitrator may provide,

  (a)  if notice was given under section 16 of the Labour Relations Act, 1995, that one or more terms of the collective agreement shall be retroactive to a day or days after the day on which the notice was given; or

  (b)  if notice was given under section 59 of the Labour Relations Act, 1995, that one or more terms of the collective agreement shall be retroactive to a day or days after the day on which the previous agreement expired.

Filing of awards

   17.  Every arbitrator shall file a copy of every award with the Minister.

General

Delegation

   18.  (1)  The Minister may delegate in writing to any person the Minister’s power to make an appointment, order or direction under this Act.

Proof of appointment

   (2)  An appointment, an order or a direction made under this Act that purports to be signed by or on behalf of the Minister shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or the position of the person appearing to have signed it.

Mailed notice

   19.  A notice by the Minister under subsection 7 (2) that a conciliation officer has been unable to effect a collective agreement if sent by mail to a party addressed to the party at its last known address shall be deemed to have been received on the second day after the day on which the notice was so mailed.

Transition

   20.  (1)  If a notice is given to the parties under clause 21 (b) of the Labour Relations Act, 1995 before this Act comes into force,

  (a)  the notice shall be treated as if it had not been given; and

  (b)  the Minister shall appoint a conciliation officer under section 18 of the Labour Relations Act, 1995 to confer with the parties and endeavour to effect a collective agreement.

Same

   (2)  Clause (1) (b) applies even though the Minister has previously appointed a conciliation officer in respect of the same dispute.

Regulations

   21.  (1)  The Minister may make regulations,

  (a)  providing for and regulating the engagement of experts, investigators and other assistants by arbitrators;

  (b)  providing for and fixing the remuneration and expenses of arbitrators;

   (c)  prescribing rules of practice and procedure;

  (d)  prescribing forms and providing for their use;

  (e)  addressing any issue related to the application of any provision of the Labour Relations Act, 1995 that arises as a result of,

           (i)  a collective agreement being executed within 90 days of its expiry, or

          (ii)  a collective agreement being executed after the period during which that agreement applies has expired;

    (f)  respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.

Same, cl. (1) (e)

   (2)  Without limiting the generality of clause (1) (e), a regulation made under that clause may modify the application of a provision of the Labour Relations Act, 1995 in order to achieve the objectives of the provision.

Same, cl. (1) (e)

   (3)  A regulation made under clause (1) (e) may be made retroactive to a date that is not earlier than the date on which this subsection comes into force.

Review

   22.  Within one year following the fifth anniversary of the coming into force of this Act, the Minister shall initiate a review of the operation of this Act and shall require a report on the results of the review to be provided to the Minister.

Commencement

   23.  This Act comes into force on the day it receives Royal Assent.

Short title

   24.  The short title of this Act is the York Region Transit Labour Disputes Resolution Act, 2011.

 

EXPLANATORY NOTE

The Bill enacts a new Act. The Act requires the termination of any strike or lock-out that exists on the day the Act is enacted and that involves the three companies that provide public transit services to The Regional Municipality of York and bargaining agents representing employees of each of those employers under the Labour Relations Act, 1995. It also addresses potential labour disputes between those parties that arise after the day the Act is enacted.

The Act prohibits strikes and lock-outs and provides for arbitration as the mechanism for achieving a collective agreement when the parties are unable to negotiate an agreement.

The Act also requires that a review of the Act be initiated within one year following the fifth anniversary of the coming into force of the Act.

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