40:1 Bill 70, Trust in Arbitration Act, 2012

Hillier, Randy

Viewing: Original (current version) pdf

Bill 70                                                          2012

An Act to provide for a trustworthy resolution of disputes during collective bargaining in certain sectors

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

Interpretation

Purposes

   1.  The following are the purposes of this Act:

    1.  To ensure the expeditious resolution of disputes during collective bargaining.

    2.  To encourage the settlement of disputes through negotiation.

    3.  To encourage best practices that ensure the delivery of quality and effective public services that are affordable for taxpayers.

Definition

   2.  In this Act,

“collective agreement” includes an agreement negotiated under Part VIII of the Police Services Act, an agreement as defined in section 1 of the Ontario Provincial Police Collective Bargaining Act, 2006 and such other agreements as may be prescribed.

Commission

Commission established

   3.  (1)  A commission is established and is named the Independent Arbitrators Commission in English and Commission des arbitres indépendants in French.

Composition

   (2)  The Commission is composed of such persons as the Lieutenant Governor in Council may appoint and includes such temporary commissioners as may be appointed under subsection 4 (2).  Temporary commissioners are part of the Commission only for the purposes of the disputes for which they are appointed.

Chief and deputy chief

   (3)  The Lieutenant Governor in Council may designate a chief and a deputy chief commissioner from among the commissioners.

Acting chief

   (4)  If there is no chief commissioner or if the chief is absent or is unable to act for any reason, the deputy chief shall act as chief.

Powers of the chief

   (5)  The chief commissioner has such powers as he or she may be assigned under this Act.

Delegation

   (6)  The chief commissioner may delegate any of his or her powers under this Act, other than the power described in subsection 9 (8), to one or more other commissioners.

Quorum

   (7)  A majority of commissioners, excluding the temporary commissioners, constitutes a quorum.

Remuneration and expenses

   (8)  The commissioners shall be paid such remuneration and expenses as the Lieutenant Governor in Council may determine.

Restriction on activities

   (9)  A commissioner,

  (a)  shall not arbitrate or otherwise resolve disputes in a labour relations or collective bargaining matter unless he or she is assigned to do so under this Act by the chief commissioner; and

  (b)  shall not do anything that would contravene the guidelines established by the chief commissioner relating to conflicts of interest.

Exception

   (10)  Despite subsection (9), a commissioner may complete an arbitration that was underway before his or her appointment.

Roster for temporary commissioners

   4.  (1)  The Lieutenant Governor in Council may establish a roster of persons eligible for appointment as temporary commissioners and may amend the roster from time to time.

Appointment

   (2)  The chief commissioner may appoint one or more temporary commissioners from the roster to resolve one or more disputes referred to the Commission.

Restriction does not apply

   (3)  Subsection 3 (9) does not apply to a commissioner appointed under this section.

Duties of the Commission

   5.  (1)  The Commission shall resolve the following disputes, despite any provision in any other Act providing that the dispute shall be dealt with by an arbitration board or other body or entity:

    1.  Disputes between parties respecting matters for which a conciliation officer has been unable to effect a collective agreement under,

            i.  section 49 of the Fire Protection and Prevention Act, 1997,

           ii.  section 4 of the Hospital Labour Disputes Arbitration Act,

          iii.  section 5 of the Ontario Provincial Police Collective Bargaining Act, 2006, or

          iv.  section 121 of the Police Services Act.

    2.  Any other prescribed dispute in a labour relations or collective bargaining matter involving a broader public sector organization, as defined in the Broader Public Sector Accountability Act, 2010.

Powers

   (2)  The Commission may do the following:

    1.  Make rules governing the referral of disputes to the Commission.

    2.  Make rules governing the practice and procedure to be used when resolving  disputes.

    3.  Make rules governing the development and issue of policy statements.  Such rules may, but are not required to, include provisions for public consultation.

    4.  Subject to the rules made under paragraph 3, issue policy statements.

    5.  Conduct research about matters that may be of interest to parties to disputes.

    6.  Gather information about decisions by arbitrators and boards of arbitrators during interest arbitrations that are not conducted under this Act.

    7.  Publish and distribute information about decisions of the Commission, research conducted by the Commission and information gathered by the Commission about decisions described in paragraph 6.

    8.  Engage in such other activities as the Commission considers will further the purposes of this Act.

Legislation Act, 2006

   (3)  Part III (Regulations) of the Legislation Act, 2006 does not apply to rules made by the Commission.

Employees

   (4)  The chief commissioner may, on behalf of the Commission, employ such persons as he or she considers necessary to enable the Commission effectively to perform its duties and exercise its powers under this Act.

Employees’ pension plan

   (5)  Persons employed under subsection (4) are deemed to be members of the Public Service Pension Plan under the Public Service Pension Act.

Protection from liability

   (6)  No action or other proceedings for damages may be commenced against the Commission, the chief commissioner, the deputy chief, any other commissioner or a person employed under subsection (4) for an act or omission done or omitted by the person in good faith in the execution or intended execution of any power or duty under this Act.

Same

   (7)  Subsection (6) does not, by reason of subsections 5 (2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect of a tort committed by a person described in subsection (6) to which the Crown would otherwise be subject.

Application of certain provisions

   (8)  Sections 117 and 118 and subsections 119 (4) to (6) of the Labour Relations Act, 1995 apply with necessary modifications with respect to the Commission, the chief commissioner, the deputy chief and the persons employed under subsection (4).

Dispute Resolution Process

Referral to Commission

   6.  (1)  If a dispute is referred to the Commission, the chief commissioner may, by order, require a party to the dispute to give him or her such information relating to the dispute as the chief considers necessary.

Order to meet

   (2)  The chief commissioner may, by order, require the parties to a dispute to meet on such occasions and for such periods of time as he or she directs in order to attempt to settle the dispute.

Same

   (3)  The chief commissioner may delegate the authority to make an order under subsection (2) to a person employed in the Commission.

Hearing, submissions before order

   (4)  The chief commissioner may hold a hearing or allow the parties to make submissions before making an order under this section, but the parties are not entitled to have a hearing or make submissions.

Decisions re conduct of proceedings

   7.  (1)  If a dispute is not settled following the meetings, if any, ordered by the chief commissioner, he or she shall do the following things:

    1.  Assign a commissioner or a panel of commissioners to resolve the dispute.

    2.  Designate the chair of the panel, if any.  If the chief commissioner is a member of the panel, he or she shall act as its chair. If the chief is not a member of the panel, but the deputy chief commissioner is, the deputy chief commissioner shall act as the panel’s chair.

    3.  Make an order specifying the method to be used to resolve the dispute, including mediation-arbitration or mediation-final offer selection.

    4.  Do such other things as he or she considers appropriate in order to facilitate the resolution of the dispute.

Same

   (2)  If the method of resolving the dispute is mediation-arbitration or mediation-final offer selection, the commissioner or panel assigned to resolve the dispute shall mediate the dispute.  If the mediation is not successful in resolving the dispute, the arbitration or final offer selection shall be conducted by the commissioner or panel or another commissioner or panel, as determined under the chief commissioner’s order.

Composition of panel

   (3)  Despite paragraph 1 of subsection (1), the chief commissioner may, by order, assign the dispute to,

  (a)  a panel composed of one commissioner, who shall act as chair, and persons (who are not commissioners) who are representative of each of the parties to the dispute; or

  (b)  a panel composed of three commissioners, one of whom shall act as chair, and persons (who are not commissioners) who are representative of each of the parties to the dispute.

Same

   (4)  The chief commissioner shall not make an order under subsection (3) in the absence of a request from the parties to the dispute.

Chair of panel

   (5)  Paragraph 2 of subsection (1) applies with respect to a panel described in clause (3) (b).

Same

   (6)  Each party shall appoint his, her or its representative to the panel within such time as the chief commissioner may, by order, require and shall pay the fees and expenses of the representative.

Hearing, submissions before assignment, etc.

   (7)  The chief commissioner may hold a hearing or allow the parties to make submissions before making an assignment, designation or order under this section but the parties are not entitled to have such a hearing or to make submissions.

Notice

   (8)  The chief commissioner shall give each of the parties a copy of the order made under this section.

Joint proceedings

   8.  (1)  The chief commissioner may assign more than one dispute to the same commissioner or panel for resolution at the same time if the chief commissioner is of the opinion that the disputes raise similar issues.

Composition of panel

   (2)  The chief commissioner may assign the disputes to a panel under subsection 7 (3).  Despite the restriction in subsection 7 (4), the chief commissioner may do so if a majority of the parties on each side of the dispute request that he or she does so.

Same

   (3)  The employers’ representative shall be appointed by a majority of the employers who requested the panel described in subsection (2) or who notify the chief commissioner that they wish to participate in such a selection.  The same applies, with necessary modifications, with respect to the bargaining agents’ representative.

Failure to appoint

   (4)  If an employers’ representative or a bargaining agents’ representative is not appointed within the time ordered by the chief commissioner, he or she may rescind the order made under subsection 7 (3).

Fees and expenses

   (5)  The employers or bargaining agents who participate in appointing their respective representative shall pay the fees and expenses of their representative.

Hearing, submissions before assignment

   (6)  The chief commissioner may hold a hearing or allow the parties to make submissions before making an assignment described in this section, but the parties are not entitled to have such a hearing or make submissions.

Conduct of proceedings

   9.  (1)  The commissioner or panel shall give the parties to a dispute an opportunity to make submissions before the commissioner or panel resolves the dispute. The commissioner or panel may hold a hearing, but the parties are not entitled to one.

Restrictions submissions

   (2)  The commissioner or panel may, by order,

  (a)  require that submissions be made in writing;

  (b)  require that written submissions not exceed a specified length or that oral submissions not exceed a specified duration; and

   (c)  impose other limits on the presentations, by the parties, of their cases.

Powers

   (3)  The commissioner or panel may, by order, require a party,

  (a)  to give the commissioner or panel such information, documents and things concerning the dispute as the commissioner or panel considers relevant;

  (b)  to provide information orally or in writing and, if it is provided in writing, to give it to the other party;

   (c)  to give the other party a copy of information given to the commissioner or panel in writing and a copy of documents given to him, her or it;

  (d)  to meet with the commissioner or panel as the commissioner or panel may direct.

Same, multiple parties

   (4)  If there is more than one party on the same side of a dispute, the commissioner or panel may, by order, designate the submission of one party as the principal submission for the side. If such an order is made, the submissions of the other parties on the same side may address only matters of disagreement with the principal submission and matters not addressed by the principal submission.

Same, oral submissions

   (5)  The commissioner or panel may decide to receive oral submissions (although not holding a hearing) when resolving a dispute and, in that case, the commissioner or panel may administer oaths and affirmations and may limit the examination and cross-examination by the parties of the persons making the oral submissions.

Same, expert advice

   (6)  The commissioner or panel may consult persons that he, she or it considers to have expert or professional qualifications and may consider the advice of such persons when resolving a dispute.

Assistance by other commissioners

   (7)  The commissioner or panel may be assisted by another commissioner.

Change in method

   (8)  With the consent of the chief commissioner, the commissioner or panel may use a different method to resolve the dispute than the method specified in the order under subsection 7 (1).

Agreement before dispute resolved

   10.  (1)  This section applies if the parties reach an agreement about a matter in dispute or about the dispute as a whole before the commissioner or panel resolves the matter or the dispute.

Collective agreement

   (2)  If, before the commissioner or panel resolves the dispute, the parties execute documents giving effect to their agreement about the dispute as a whole, the documents constitute a collective agreement and the dispute resolution proceedings are terminated.

Notice of partial agreement

   (3)  If the parties notify the commissioner or panel that they have reached an agreement about a matter in dispute and provide the commissioner or panel with a copy of the agreement before the commissioner or panel resolves the matter, the commissioner or panel shall confine his, her or its decision to the matters remaining in dispute.

Decision of commissioner or panel

   11.  (1)  The commissioner or panel shall resolve all matters in dispute between the parties and shall decide such other matters that the commissioner or panel considers necessary to enable the parties to conclude a collective agreement.

Factors to consider

   (2)  In resolving or deciding matters under subsection (1), the commissioner or panel shall consider the following factors and such other matters as it considers relevant:

    1.  The employer’s ability to pay in light of the economic and fiscal environment, if funding and taxation levels are not increased.

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

    3.  The economic and fiscal environment in Ontario and in the affected municipalities.

    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.  In matters involving the Ontario Provincial Police or a municipal police force, the interests and welfare of the community served by the Ontario Provincial Police or municipal police force.

    7.  The purposes of this Act.

Time limit

   (3)  The commissioner or panel shall issue a written decision resolving all matters in dispute within 60 days after the making of the order under subsection 7 (1) selecting the method to be used to resolve the dispute, whether or not that order is rescinded or changed.

Same

   (4)  The commissioner or panel may resolve some matters in dispute before resolving others.

Decisions of panel

   (5)  A decision of the majority of members of a panel is the decision of the panel.

Effect of decision

   (6)  A decision of the commissioner or panel is final and is binding upon the parties and upon the persons and organizations represented by the parties.

Formality of decision

   (7)  No order, assignment, designation, decision or ruling of the chief commissioner, the deputy chief, a commissioner or a panel and no rule or policy statement of the Commission shall be questioned or reviewed in any court. No order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the chief commissioner, the deputy chief, a commissioner or a panel or any proceedings under this Act.

Same

   (8)  Without restricting the generality of subsection (7), no order, assignment, designation, decision or ruling of the chief commissioner, the deputy chief, a commissioner or a panel shall be quashed by a court on the ground that his, her or its discretion was fettered because he, she or it refused to consider departing from the policy set out in a policy statement of the Commission.

Publication of decisions

   (9)  Every decision of the commissioner or of a panel shall be published on the Commission’s website.

Preparation of collective agreement

   12.  (1)  Within five days after a commissioner or panel resolves all matters in dispute among the parties or within such longer period as the parties may agree upon in writing, the parties shall prepare and execute documents that reflect the decision of the commissioner or panel and such matters as the parties have agreed upon. The executed documents constitute the collective agreement.

Failure to prepare documents

   (2)  Either party shall notify the commissioner or the chair of the panel if the parties do not prepare and execute the documents in accordance with subsection (1). In that event, the commissioner or chair shall prepare the documents and give them to the parties for execution.

Failure to execute documents

   (3)  If the parties do not execute the documents prepared by the commissioner or chair within five days after they receive them, the documents come into effect as if they had been executed by the parties. The documents constitute the collective agreement.

Notice to Commission

   (4)  The parties shall promptly give the Commission a copy of the collective agreement.

Special rules re certain police forces

   13.  (1)  This section applies with respect to disputes referred to the Commission under the Police Services Act.

Submissions

   (2)  Each municipality served by the police services board that is a party to the dispute may make submissions to the commissioner or panel as if the municipality were a party.

Restrictions, pension benefits

   (3)  The commissioner or panel shall not award pension benefits in excess of the maximum, if any, determined by the Minister under subsection 119 (6) of the Police Services Act.

Restrictions, working conditions

   (4)  The commissioner or panel shall not affect the working conditions of a police force insofar as they are determined by sections 42 to 49, subsection 50 (3), Part V and Part VII of the Police Services Act and the regulations made under that Act.

Special rules re OPP

   14.  If a dispute is referred to the Commission under the Ontario Provincial Police Collective Bargaining Act, 2006, the member of the Negotiation Committee who requested the referral shall be deemed to be the party for the purposes of subsections 7 (3), (4), (5) and (6) and 8 (2) (representatives on panels).

Arbitration Act, 1991

   15.  The Arbitration Act, 1991 does not apply with respect to the resolution of disputes under this Act.

Administration

Regulations

   16.  (1)  The Lieutenant Governor in Council may make regulations,

  (a)  amending or adding to the powers of the chief commissioner;

  (b)  providing for another commissioner to exercise any of the chief commissioner’s powers instead of the chief;

   (c)  allowing the chief commissioner, despite subsection 3 (6), to delegate the chief’s powers under subsection 9 (8) to one or more other commissioners;

  (d)  requiring parties to disputes that are referred to the Commission to pay such fees as may be prescribed:

  (e)  prescribing anything that must or may be prescribed under this Act;

    (f)  governing transitional matters that, in the opinion of the Lieutenant Governor in Council, are necessary or desirable to facilitate the implementation of this Act;

  (g)  governing any matter necessary or advisable to carry out the purposes of this Act.

Scope of regulations 

   (2)  A regulation made under clause (1) (g) may be substantive, procedural or administrative in nature.

Commencement

   17.  This Act comes into force 60 days after the day it receives Royal Assent.

Short title

   18.  The short title of this Act is the Trust in Arbitration Act, 2012.

 

EXPLANATORY NOTE

The Trust in Arbitration Act, 2012 is enacted. The Act creates the Independent Arbitrators Commission and provides that certain collective bargaining disputes in the public sector shall be resolved by the Commission.  In particular, the Act specifies that disputes between parties respecting matters for which a conciliation officer has been unable to effect a collective agreement under the Fire Protection and Prevention Act, 1997, the Hospital Labour Disputes Arbitration Act, the Ontario Provincial Police Collective Bargaining Act, 2006 or the Police Services Act shall be resolved by the Commission. Power is given to the Lieutenant Governor in Council to prescribe other disputes that are to be resolved by the Commission.

When the Commission is required to resolve a dispute, the chief commissioner will choose the commissioner or panel (and type of panel) to resolve the dispute, and will also choose the method of dispute resolution to be used. The dispute must be resolved within 60 days after the chief commissioner chooses the method of dispute resolution.

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