40:1 Bill 121, Ability to Pay Act, 2012

Wilson, Jim

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Bill 121                                                       2012

An Act to deal with arbitration in the public sector

Note: This Act amends or repeals more than one Act.  For the legislative history of these Acts, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

CONTENTS

1.

Definitions

2.

Arbitration criteria

3.

Ability to Pay Division

4.

Arbitration not provided under other specific Acts

5.

Voluntary arbitration

6.

First agreement arbitration

7.

Regulations

8.

Transition

9.

Repeal of section 3

10.

Ambulance Services Collective Bargaining Act, 2001

11.

Crown Employees Collective Bargaining Act, 1993

12.

Education Act

13.

Fire Protection and Prevention Act, 1997

14.

Hospital Labour Disputes Arbitration Act

15.

Ontario Provincial Police Collective Bargaining Act, 2006

16.

Police Services Act

17.

Provincial Schools Negotiations Act

18.

Public Sector Dispute Resolution Act, 1997

19.

Public Sector Labour Relations Transition Act, 1997

20.

Toronto Transit Commission Labour Disputes Resolution Act, 2011

21.

Commencement

22.

Short title

______________

 

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

Definitions

   1.  (1)  In this Act,

“employee” includes a director or officer of an employer, and a holder of office elected or appointed under the authority of an Act of Ontario; (“employé”)

“employer” means,

  (a)  an employer in the public sector that does not carry on its activities for the purpose of gain or profit to its members or shareholders, and includes the Crown and a body to which a person is elected or appointed under the authority of an Act of Ontario,

  (b)  Hydro One Inc. and each of its subsidiaries, and

   (c)  Ontario Power Generation Inc. and each of its subsidiaries; (“employeur”)

“Hydro One Inc.” has the same meaning as in the Electricity Act, 1998; (“Hydro One Inc.”)

“Ontario Power Generation Inc.” has the same meaning as in the Electricity Act, 1998; (“Ontario Power Generation Inc.”)

“public sector” means,

  (a)  the Crown in right of Ontario, every agency thereof, and every authority, board, commission, corporation, office or organization of persons a majority of whose directors, members or officers are appointed or chosen by or under the authority of the Lieutenant Governor in Council or a member of the Executive Council,

  (b)  the corporation of every municipality in Ontario,

   (c)  subject to the Government funding condition in subsection (2), every local board as defined by the Municipal Affairs Act and every authority, board, commission, corporation, office or organization of persons some or all of whose members, directors or officers are appointed or chosen by or under the authority of the council of the corporation of a municipality in Ontario,

  (d)  every board as defined in the Education Act,

  (e)  every university in Ontario and every college of applied arts and technology and post-secondary institution in Ontario whether or not affiliated with a university, the enrolments of which are counted for purposes of calculating annual operating grants entitlements,

    (f)  every hospital referred to in the list of hospitals and their grades and classifications maintained by the Minister of Health and Long-Term Care under the Public Hospitals Act and every private hospital operated under the authority of a licence issued under the Private Hospitals Act,

  (g)  subject to the Government funding condition in subsection (2), every corporation with share capital, at least 90 per cent of the issued shares of which are beneficially held by or for an employer or employers described in clauses (a) to (f), and every wholly-owned subsidiary thereof,

   (h)  subject to the Government funding condition in subsection (2), every corporation without share capital, the majority of whose members, directors or officers are members of, or are appointed or chosen by or under the authority of, an employer or employers described in clauses (a) to (f), and every wholly-owned subsidiary thereof,

    (i)  every board of health under the Health Protection and Promotion Act,

    (j)  the Office of the Lieutenant Governor of Ontario, the Office of the Assembly, members of the Assembly and the offices of persons appointed on an address of the Assembly,

   (k)  any corporation, entity, person or organization of persons to which the Government funding condition in subsection (2) applies,

    (l)  any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organizations of persons, prescribed as an employer by the regulations made under this Act,

(m)  Hydro One Inc. and each of its subsidiaries, or

   (n)  Ontario Power Generation Inc. and each of its subsidiaries.  (“secteur public”)

Funding received from Government

   (2)  A body referred to in clause (c), (g), (h) or (k) of the definition of “public sector” in subsection (1) is included in the definition of “public sector” in a year only if the body received funding from the Government of Ontario in that year of an amount that is at least equal to,

  (a)  $1,000,000; or

  (b)  10 per cent of the body’s gross revenues for the year if that percentage is $120,000 or more.

Proof of percentage of funding

   (3)  The Management Board of Cabinet may require an officer, director or employee of a body to provide evidence satisfactory to the Secretary of the Management Board of Cabinet that the funding received from the Government of Ontario by the body in a year is less than 10 per cent of the body’s gross revenues for the year, if, for the year,

  (a)  the body received funding from the Government of Ontario of less than $1,000,000 and at least $120,000; and

  (b)  the body would be an employer to whom this Act applies if its funding from the Government of Ontario for the year were at least 10 per cent of its gross revenues for the year.

Failure to provide evidence

   (4)  If satisfactory evidence is not provided under subsection (3), the Management Board of Cabinet may require that payments from a ministry of the Crown to fund any activity or program of that body be withheld, and section 5 of the Public Sector Salary Disclosure Act, 1996 applies, with necessary modifications, in respect of the payment withheld.

When government funding condition not applicable

   (5)  Where an employer described in clause (c), (g), (h) or (k) of the definition of “public sector” in subsection (1) is also described in another clause of that definition, the employer is in the public sector whether or not the government funding condition in subsection (2) is met.

Arbitration criteria

   2.  (1)  In making a decision or award, a board of arbitration settling all or part of a collective agreement for employees of an employer shall take into account the following criteria, in addition to any other criteria provided by law:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  If the employer is a municipality or local board of a municipality as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006,

            i.  the municipality’s projected budget surplus or deficit,

           ii.  the municipality’s revenue and expenditures,

          iii.  the growth or decline of the municipality’s tax base,

          iv.  the municipality’s net debt and borrowing costs.

    6.  If the employer is not a municipality or local board of a municipality as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006,

            i.  the Province’s projected budget surplus or deficit,

           ii.  the Province’s revenue and expenditures,

          iii.  the growth or decline of the Province’s tax base,

          iv.  the Province’s net debt and borrowing costs.

    7.  Any other criteria prescribed by regulation.

No tax increase

   (2)  In applying the criteria under paragraphs 5 and 6 of subsection (1), the board of arbitration shall assume that no tax rate will be increased to pay the costs of the board’s decision or award.

Ability to Pay Division

   3.  (1)  The Minister of Finance shall establish a division within the Ministry, to be known in English as the Ability to Pay Division and in French as Division de la capacité de payer.

Existing resources only

   (2)  The budget and staff of the Ability to Pay Division shall be drawn only from the resources allocated to the Ministry on or before the day this Act comes into force.

Collection and publication of information

   (3)  The Ability to Pay Division shall collect and publish information relating to arbitrations settling all or part of collective agreements for employees.

Specific publications

   (4)  Without limiting what else the Ability to Pay Division may publish, it shall publish the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

    2.  For employees in the public and private sectors, comparisons of the terms and conditions of employment, including remuneration and benefits.

    3.  Information on the criteria set out in subparagraphs 6 i to iv of subsection 2 (1).

    4.  Information on recent arbitration decisions or awards settling all or part of collective agreements for employees of employers in Ontario or similar organizations elsewhere in Canada.

    5.  Information on collective agreements for employees of employers in Ontario or similar organizations elsewhere in Canada.

Filing with Ability to Pay Division

   (5)  If a board of arbitration makes a decision or award settling all or part of a collective agreement for employees of an employer, the board of arbitration shall, as soon as possible, file a copy of the decision or award with the Ability to Pay Division.

Arbitration not provided under other specific Acts

   4.  Sections 5 and 6 apply with respect to an arbitration settling all or part of a collective agreement for employees of an employer if the Labour Relations Act, 1995 applies with respect to the collective agreement but the arbitration is not an arbitration under any of the following provisions:

    1.  Section 20 of the Ambulance Services Collective Bargaining Act, 2001.

    2.  Section 4 or 5 of the Crown Employees Collective Bargaining Act, 1993.

    3.  Section 277.9.1 or 277.9.2 of the Education Act.

    4.  Section 50.2 of the Fire Protection and Prevention Act, 1997.

    5.  Section 6 of the Hospital Labour Disputes Arbitration Act.

    6.  Section 6 of the Ontario Provincial Police Collective Bargaining Act, 2006.

    7.  Section 122 of the Police Services Act.

    8.  Section 6.1 or 6.2 of the Provincial Schools Negotiations Act.

    9.  Section 32 of the Public Sector Labour Relations Transition Act, 1997.

  10.  Section 5 of the Toronto Transit Commission Labour Disputes Resolution Act, 2011.

Voluntary arbitration

   5.  (1)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to a board of arbitration described in this section and the parties shall notify the Minister of Labour.

Appointment of board of arbitration

   (2)  Within seven days after the parties have agreed to refer matters to arbitration, the Minister of Labour shall appoint a board of arbitration and designate one of the members of the board as the chair.

Applicable provisions

   (3)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

First agreement arbitration

   6.  (1)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister of Labour who shall, within seven days of receiving it, appoint a board of arbitration and designate one of the members of the board as the chair.

Non-applicable provisions

   (2)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the board of arbitration under this section.

Applicable provisions of other Acts

   (3)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5) and (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

Regulations

   7.  The Lieutenant Governor in Council may make regulations,

  (a)  prescribing criteria for the purposes of paragraph 7 of subsection 2 (1);

  (b)  governing the assignment of persons to a board of arbitration;

   (c)  governing the conduct of arbitration hearings by a board of arbitration and prescribing procedures for them.

Transition

   8.  This Act does not apply to an arbitration proceeding that is begun before the day this Act comes into force.

Repeal of section 3

   9.  The following apply with respect to section 3:

    1.  Section 3 is repealed on the third anniversary of the day this Act comes into force unless, before that time, the Legislative Assembly passes a resolution that the section should not be repealed.

    2.  If the Assembly passes a resolution that section 3 should not be repealed, the section is repealed on the third anniversary of the passing of that resolution unless, before that time, the Assembly passes another resolution that the section should not be repealed.

    3.  For greater certainty, paragraph 2 applies with respect to all subsequent resolutions of the Assembly that section 3 should not be repealed.

Ambulance Services Collective Bargaining Act, 2001

   10.  (1)  Clause 18 (8) (d) of the Ambulance Services Collective Bargaining Act, 2001is amended by striking out “an arbitrator” and substituting “a board of arbitration”.

   (2)  Section 18 of the Act is amended by adding the following subsection:

Mediation

   (10.1)  The Board shall not order arbitration under this section unless the parties have conferred with a mediator to attempt to effect a collective agreement.

   (3)  Subsections 20 (1), (2), (3), (4) and (5) of the Act are repealed and the following substituted:

Board of arbitration and method of arbitration

   (1)  If the Board orders that all matters remaining in dispute be referred to a board of arbitration, the Minister shall, within seven days of the issuance of the order, appoint a board of arbitration and designate one of the members of the board as the chair.

Members of board of arbitration

   (2)  The board of arbitration shall consist of three persons who, in the opinion of the Minister, are qualified to act.

Replacement

   (3)  If any of the persons appointed to the board of arbitration is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (4)  Subsection 20 (7) of the Act is amended by striking out “the arbitrator” and substituting “the board of arbitration”.

   (5)  Subsection 20 (13) of the Act is amended by striking out “the appointment of an arbitrator or replacement arbitrator” and substituting “the appointment of a board of arbitration”.

   (6)  Subsection 21 (1) of the Act is repealed and the following substituted:

Arbitration

   (1)  The board of arbitration shall examine and decide on the matters that are in dispute and any other matters that appear to it to be necessary to be decided in order to conclude a collective agreement between the parties, but in so doing, the board shall not decide any matters that come within the jurisdiction of the Board.

   (7)  Subsection 21 (2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Criteria

   (2)  In making a decision, the board of arbitration shall consider the following factors:

.     .     .     .     .

   (8)  Subsection 21 (2) of the Act is amended by adding the following paragraph:

  6.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (9)  Subsection 21 (3) of the Act is amended by striking out “the arbitrator” at the end and substituting “the board of arbitration”.

   (10)  Subsections 21 (4) and (5) of the Act are amended by striking out “The arbitrator” wherever that expression appears and substituting in each case “The board of arbitration”.

   (11)  Subsection 21 (6) of the Act is amended by striking out “the arbitrator and to his or her decision” at the end and substituting “the board of arbitration and to its decision”.

   (12)  Subsections 21 (7), (8), (9) and (10) of the Act are repealed and the following substituted:

Non-application

   (7)  The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply to arbitration proceedings under this Act.

Begin proceedings

   (8)  The board of arbitration shall begin the arbitration proceedings within 30 days after being appointed.

Time for decision

   (9)  The board of arbitration shall make a decision within 90 days after being appointed.

Order to expedite proceedings

   (10)  If the board of arbitration fails to make a decision within the time referred to in subsection (9), the Minister may, after consulting the parties and the board, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be made within a reasonable time, but such an order shall require that a decision be made no later than 120 days after the board of arbitration was appointed.

Reasons

   (10.1)  Upon making its decision, the board of arbitration shall provide written reasons to each party.

Same

   (10.2)  The written reasons must clearly demonstrate that the board of arbitration has given proper consideration to the factors set out in paragraphs 1 to 7 of subsection (2).

   (13)  Subsection 21 (11) of the Act is amended by striking out “the arbitrator’s remuneration and expenses” at the end and substituting “the remuneration and expenses of the board of arbitration”.

   (14)  Subsection 22 (1) of the Act is amended by striking out “an arbitrator” in the portion before clause (a) and substituting “a board of arbitration”.

   (15)  Subsection 22 (2) of the Act is repealed and the following substituted:

Agreement on some matters

   (2)  If, during a proceeding before the board of arbitration, the parties agree on some but not all of the matters in dispute, they shall notify the board of the items agreed upon and the board shall decide only upon the remaining matters and any other matters that appear to it to be necessary to make a collective agreement.

   (16)  Subsection 22 (3) of the Act is amended by striking out “the arbitrator’s decision within five days after the date of the arbitrator’s decision” and substituting “the decision of the board of arbitration within five days after the date of the decision”.

   (17)  Subsection 22 (4) of the Act is amended by striking out “the arbitrator, who” and substituting “the board of arbitration, which”.

   (18)  Subsection 22 (5) of the Act is amended by striking out “the arbitrator” in the portion before clause (a) and substituting “the board of arbitration”.

   (19)  Subsection 22 (6) of the Act is amended by striking out “the arbitrator’s decision” and substituting “the decision of the board of arbitration”.

   (20)  The Act is amended by adding the following section:

Transition

   28.1  (1)  In this section,

“referral date” means the date on which an order made by the Board under clause 18 (8) (d) with respect to a bargaining unit of ambulance workers is deemed to have been released, in accordance with subsection 23 (9).

Same

   (2)  Arbitration proceedings for which the referral date falls before the day the Ability to Pay Act, 2012 comes into force shall continue under this Act as it read immediately before that day.

Crown Employees Collective Bargaining Act, 1993

   11.  (1)  Subsections 4 (2), (3), (4) and (5) of the Crown Employees Collective Bargaining Act, 1993 are repealed and the following substituted:

Referral to board of arbitration

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to a board of arbitration described in this section.

Appointment of board of arbitration

   (3)  Within seven days after the parties have agreed to refer matters to arbitration, the Minister shall appoint a board of arbitration and designate one of the members of the board as the chair.

Applicable provisions

   (4)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5), (3) and (4) and section 17.1 of the Hospital Labour Disputes Arbitration Act apply, with necessary modifications, to the board of arbitration.

   (2)  Subsections 4 (6), (7) and (8) of the Act are repealed and the following substituted:

Procedure

   (6)  The board of arbitration shall determine its own procedure but shall give full opportunity to the parties to present their evidence and make their submissions and section 117 of the Labour Relations Act, 1995 applies to the board and its decision and proceedings as if it were the Board.

Cost of arbitration

   (7)  Each party shall pay one-half of the remuneration and expenses of the board of arbitration.

Reference back to board

   (8)  The board of arbitration may, upon application by a party within 10 days after the release of a decision, amend, alter or vary the decision where it is shown to the satisfaction of the board that it failed to deal with any matter in dispute referred to it or that an error is apparent on the face of the decision.

   (3)  Subsection 4 (9) of the Act is amended by striking out “the arbitrator or board” and substituting “the board of arbitration”.

   (4)  Subsection 4 (11) of the Act is amended by striking out “arbitrator or”.

   (5)  Subsection 4 (12) of the Act is repealed and the following substituted:

Scope of arbitration

   (12)  The decision of the board of arbitration shall not include any matters upon which the parties have agreed if the board is notified in writing of the agreement of the parties on those matters.

   (6)  Subsection 4 (14) of the Act is repealed and the following substituted:

Collective agreement prepared by board of arbitration

   (14)  If the parties have not agreed upon the terms of a collective agreement within 30 days after the release of the decision of the board of arbitration, the board shall prepare a document giving effect to the decision of the board and any agreement between the parties about which the board has been notified.

   (7)  Subsection 4 (15) of the Act is amended by striking out “arbitrator or”.

   (8)  Section 5 of the Act is amended by adding the following subsections:

Board of arbitration

   (1.1)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Board under that Act shall forward a copy to the Minister who shall, within seven days of receiving it, appoint a board of arbitration and designate one of the members of the board as the chair.

Non-applicable provisions

   (1.2)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the board of arbitration under this section.

Applicable provisions of other Acts

   (1.3)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5) and (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

   (9)  Paragraph 1 of subsection 5 (2) of the Act is amended by striking out “arbitrator or”.

   (10)  Paragraph 4 of subsection 5 (2) of the Act is amended by striking out “arbitrator, etc.” and substituting “board of arbitration”.

Education Act

   12.  (1)  The Education Act is amended by adding the following sections:

Voluntary arbitration

   277.9.1  (1)  Section 40 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Part with the modifications set out in this section.

Referral to board of arbitration

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to a board of arbitration described in this section and the parties shall notify the Minister of Labour.

Appointment of board of arbitration

   (3)  Within seven days after the parties have agreed to refer matters to arbitration, the Minister of Labour shall appoint a board of arbitration and designate one of the members of the board as the chair.

Applicable provisions

   (4)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act apply, with necessary modifications, to the board of arbitration.

First agreement arbitration

   277.9.2  (1)  Section 43 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Part with the modifications set out in this section.

Board of arbitration

   (2)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister of Labour who shall, within seven days of receiving it, appoint a board of arbitration and designate one of the members of the board as the chair.

Non-applicable provisions

   (3)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the board of arbitration under this section.

Applicable provisions of other Acts

   (4)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5) and (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

   (2)  Section 277.10 of the Act is amended by striking out “an arbitrator or” and substituting “the”.

Fire Protection and Prevention Act, 1997

   13.  (1)  Section 50.1 of the Fire Protection and Prevention Act, 1997 is repealed.

   (2)  Subsections 50.2 (1), (2), (3), (4), (5), (6) and (7) of the Act are repealed and the following substituted:

Appointment of board of arbitration

   (1)  Within seven days after the day upon which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the Minister shall appoint a board of arbitration and designate one of the members of the board as the chair.

Members of board of arbitration

   (2)  The board of arbitration shall consist of three persons who, in the opinion of the Minister, are qualified to act.

Replacement

   (3)  If any of the persons appointed to the board of arbitration is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (3)  Subsection 50.2 (8) of the Act is amended by striking out “If the chair of the board of arbitration was appointed by the Minister” at the beginning.

   (4)  Subsections 50.2 (12), (13), (14), (15) and (19) of the Act are repealed.

   (5)  Subsection 50.2 (20) of the Act is amended by striking out “or within the time extended under subsection 50.5 (6)”.

   (6)  Subsections 50.2 (24), (25), (26), (27) and (28) of the Act are repealed.

   (7)  Section 50.3 of the Act is amended by striking out “Where a person has been appointed as a single arbitrator or the three members have been appointed to a board of arbitration, it shall be presumed conclusively that the board” at the beginning and substituting “It shall be presumed conclusively that the board of arbitration”.

   (8)  Subsection 50.5 (2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Criteria

   (2)  In making a decision, the board of arbitration shall take into consideration the following criteria:

.     .     .     .     .

   (9)  Subsection 50.5 (2) of the Act is amended by adding the following paragraph:

  4.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (10)  Section 50.5 of the Act is amended by adding the following subsections:

Reasons

   (3.1)  Upon making its decision, the board of arbitration shall provide written reasons to each party.

Same

   (3.2)  The written reasons must clearly demonstrate that the board of arbitration has given proper consideration to the factors set out in paragraphs 1 to 5 of subsection (2).

   (11)  Subsection 50.5 (6) of the Act is repealed.

   (12)  Subsection 50.5 (7) of the Act is repealed and the following substituted:

Cost of arbitration

   (7)  Each party shall pay one-half of the remuneration and expenses of the board of arbitration.

   (13)  The Act is amended by adding the following section before the heading “Operation of Collective Agreements”:

Transition

   50.9  An arbitration proceeding commenced before the day the Ability to Pay Act, 2012 comes into force shall be conducted under this Act as it read immediately before that day.

Hospital Labour Disputes Arbitration Act

   14.  (1)  Section 5 of the Hospital Labour Disputes Arbitration Act is repealed.

   (2)  Subsections 6 (1), (2), (3), (4), (5), (6) and (7) of the Act are repealed and the following substituted:

Appointment of board of arbitration

   (1)  Within seven days after the day upon which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the Minister shall appoint a board of arbitration and designate one of the members of the board as the chair.

Members of board of arbitration

   (2)  The board of arbitration shall consist of three persons who, in the opinion of the Minister, are qualified to act.

Replacement

   (3)  If any of the persons appointed to the board of arbitration is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (3)  Subsections 6 (8), (9), (10), (11) and (14) of the Act are repealed. 

   (4)  Subsection 6 (15) of the Act is amended by striking out “or within the time extended under subsection 9 (5)”.

   (5)  Subsections 6 (18), (18.1), (18.2), (18.3) and (18.4) of the Act are repealed.

   (6)  Section 7 of the Act is amended by striking out “Where a person has been appointed as a single arbitrator or the three members have been appointed to a board of arbitration, it shall be presumed conclusively that the board” at the beginning and substituting “It shall be presumed conclusively that the board of arbitration”.

   (7)  Subsection 9 (1.1) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Criteria

   (1.1)  In making a decision or award, the board of arbitration shall take into consideration the following criteria:

.     .     .     .     .

   (8)  Subsection 9 (1.1) of the Act is amended by adding the following paragraph:

  4.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (9)  Section 9 of the Act is amended by adding the following subsections:

Reasons

   (1.4)  Upon making its decision, the board of arbitration shall provide written reasons to each party.

Same

   (1.5)  The written reasons must clearly demonstrate that the board of arbitration has given proper consideration to the factors set out in paragraphs 1 to 5 of subsection (1.1).

   (10)  Subsection 9 (3) of the Act is amended by striking out “The Arbitrations Act” at the beginning and substituting “The Arbitration Act, 1991”.

   (11)  Subsection 9 (5) of the Act is repealed.

   (12)  Section 9.1 of the Act is repealed and the following substituted:

Cost of arbitration

   9.1  Each party shall pay one-half of the remuneration and expenses of the board of arbitration.

   (13)  The Act is amended by adding the following section:

Transition

   17.1  An arbitration proceeding commenced before the day the Ability to Pay Act, 2012 comes into force shall be conducted under this Act as it read immediately before that day.

Ontario Provincial Police Collective Bargaining Act, 2006

   15.  (1)  Paragraphs 1, 2 and 3 of subsection 6 (2) of the Ontario Provincial Police Collective Bargaining Act, 2006 are repealed and the following substituted:

    1.  The Solicitor General shall inform the Minister of Labour who shall appoint an arbitration board and designate one of the members of the board as the chair. The board shall consist of three persons who, in the opinion of the Minister, are qualified to act. If any of the persons appointed to the board is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (2)  Paragraph 4 of subsection 6 (2) of the Act is amended by striking out “If the arbitration board consists of one person who was appointed by the chair of the Ontario Police Arbitration Commission or if the arbitration board consists of three persons and the chair was appointed by the chair of the Commission, the chair of the Commission” at the beginning and substituting “The Ontario Police Arbitration Commission”.

   (3)  Subsection 6 (3) of the Act is repealed and the following substituted:

When hearings commence

   (3)  The arbitration board shall hold the first hearing within 30 days after the chair is appointed.

   (4)  The following provisions of the Act are amended by striking out “or, if the arbitration board consists of one person, that person” wherever that expression appears:

    1.  Subsection 6 (5) in the portion before clause (a).

    2.  Subsection 6 (6).

   (5)  Subsections 6 (8) and (9) of the Act are repealed and the following substituted:

Time for decision

   (8)  The arbitration board shall give a decision within 90 days after the chair is appointed.

   (6)  Subsection 6 (10) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Factors to consider

   (10)  In making a decision on the matter, the arbitration board shall take into consideration the following criteria:

.     .     .     .     .

   (7)  Subsection 6 (10) of the Act is amended by adding the following paragraph:

  4.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (8)  Section 6 of the Act is amended by adding the following subsection:

Applicable provisions

   (13)  Subsections 6 (12) and (17), section 7, subsections 9 (1.4), (1.5), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act apply, with necessary modifications, to the arbitration board.

Police Services Act

   16.  (1)  Paragraphs 1, 2 and 3 of subsection 122 (2) of the Police Services Act are repealed and the following substituted:

    1.  The chair of the Arbitration Commission shall inform the Minister of Labour who shall appoint an arbitration board and designate one of the members of the board as the chair. The board shall consist of three persons who, in the opinion of the Minister, are qualified to act. If any of the persons appointed to the board is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (2)  Paragraph 4 of subsection 122 (2) of the Act is amended by striking out “If the arbitration board consists of one person who was appointed by the chair of the Arbitration Commission or if the arbitration board consists of three persons and the chair was appointed by the chair of the Arbitration Commission” at the beginning.

   (3)  Subsections 122 (3.2) and (3.3) of the Act are amended by striking out “or, if the arbitration board consists of one person, that person” wherever that expression appears.

   (4)  Subsections 122 (3.5), (3.6) and (3.7) of the Act are repealed and the following substituted:

Time for decision

   (3.5)  The arbitration board shall give a decision within 90 days after the chair is appointed.

Cost of arbitration

   (3.6)  Each party shall pay one-half of the remuneration and expenses of the arbitration board.

   (5)  Subsection 122 (5) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Criteria

   (5)  In making a decision or award, the arbitration board shall take into consideration the following criteria:

.     .     .     .     .

   (6)  Subsection 122 (5) of the Act is amended by adding the following paragraph:

  6.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (7)  Section 122 of the Act is amended by adding the following subsection:

Applicable provisions

   (7)  Subsections 6 (12) and (17), section 7, subsections 9 (1.4), (1.5), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act apply, with necessary modifications, to the board of arbitration.

Provincial Schools Negotiations Act

   17.  (1)  Subsection 5 (1) of the Provincial Schools Negotiations Act is amended by adding “except if this Act provides otherwise” at the end.

   (2)  The Act is amended by adding the following sections:

Voluntary arbitration

   6.1  (1)  Section 40 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Act with the modifications set out in this section.

Referral to board of arbitration

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to a board of arbitration described in this section and the parties shall notify the Minister of Labour.

Appointment of board of arbitration

   (3)  Within seven days after the parties have agreed to refer matters to arbitration, the Minister of Labour shall appoint a board of arbitration and designate one of the members of the board as the chair.

Applicable provisions

   (4)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act apply, with necessary modifications, to the board of arbitration.

First agreement arbitration

   6.2  (1)  Section 43 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Act, with the modifications set out in this section.

Board of arbitration

   (2)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister of Labour who shall, within seven days of receiving it, appoint a board of arbitration and designate one of the members of the board as the chair.

Non-applicable provisions

   (3)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the board of arbitration under this section.

Applicable provisions of other Acts

   (4)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.1), (1.3), (1.4), (1.5) and (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

Public Sector Dispute Resolution Act, 1997

   18.  Paragraph 3 of section 1 of the Public Sector Dispute Resolution Act, 1997 is amended by adding at the end “given the pressing financial need of the Province to achieve fiscal solvency by freezing compensation levels in the public sector until the Province no longer has an annual deficit”.

Public Sector Labour Relations Transition Act, 1997

   19.  (1)  Section 32 of the Public Sector Labour Relations Transition Act, 1997 is amended by adding the following subsections:

Board of arbitration

   (1.1)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Board shall forward a copy to the Minister of Labour who shall, within seven days of receiving it, appoint a board of arbitration and designate one of the members of the board as the chair.

Non-applicable provisions

   (1.2)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the board of arbitration under this section.

Applicable provisions of other Acts

   (1.3)  Subsections 6 (2), (3), (12), (13) and (17), section 7, subsections 9 (1.3), (1.4), (1.5) and (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the board of arbitration.

   (2)  Subsection 32 (3) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Factors to consider

   (3)  In making a decision under section 43 of the Labour Relations Act, 1995, as that section applies under subsection (1), a board of arbitration shall take into consideration the following criteria:

.     .     .     .     .

   (3)  Subsection 32 (3) of the Act is amended by adding the following paragraph:

  4.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

Toronto Transit Commission Labour Disputes Resolution Act, 2011

   20.  (1)  Subsections 5 (1), (2), (3), (4) and (5) of the Toronto Transit Commission Labour Disputes Resolution Act, 2011 are repealed and the following substituted:

Appointment of board of arbitration

   (1)  Within seven days after the day on which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the Minister shall appoint a board of arbitration and designate one of the members of the board as the chair.

Members of board of arbitration

   (2)  The board of arbitration shall consist of three persons who, in the opinion of the Minister, are qualified to act.

Replacement

   (3)  If any of the persons appointed to the board of arbitration is unable or unwilling to perform his or her duties, the Minister shall appoint a replacement who, in the opinion of the Minister, is qualified to act.

   (2)  Subsection 5 (6) of the Act is amended by striking out “an arbitrator” and substituting “a member of the board of arbitration”.

   (3)  Subsection 5 (7) of the Act is repealed and the following substituted:

Not subject to judicial review

   (7)  It is conclusively determined that the appointment of the board of arbitration 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 board’s proceedings.

   (4)  Subsections 6 (1), (2) and (3) of the Act are repealed and the following substituted:

Selection of method

   (1)  The Minister shall select the method of arbitration.

   (5)  Subsection 7 (1) of the Act is amended by striking out “the arbitrator” and substituting “the board of arbitration”.

   (6)  Subsections 7 (2), (3) and (4) of the Act are repealed and the following substituted:

When proceedings commence

   (2)  The board of arbitration shall begin the proceedings within 30 days after it is appointed.

Order to expedite proceedings

   (3)  The board of arbitration shall keep the Minister advised of the progress of the arbitration and if the Minister is advised that an award has not been rendered within the time set out in subsection 10 (6), the Minister may, after consulting the parties and the board, issue whatever order he or she considers necessary in the circumstances to ensure that an award will be rendered within a reasonable time, but such an order shall require that an award be rendered no later than 120 days after the board of arbitration was appointed.

Time for submission of information

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

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

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

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

   (7)  Subsection 7 (5) of the Act is amended by striking out “the arbitrator shall determine his or her” and substituting “the board of arbitration shall determine its”.

   (8)  Section 8 of the Act is repealed.

   (9)  Section 9 of the Act is repealed and the following substituted:  

Powers

     9.  The board of arbitration appointed under this Act has all the powers of a board of arbitration under the Labour Relations Act, 1995.

   (10)  Subsection 10 (1) of the Act is repealed and the following substituted:

Duty of board of arbitration

   (1)  The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to it necessary to be decided in order to conclude a collective agreement between the parties, but the board shall not decide any matters that come within the jurisdiction of the Ontario Labour Relations Board.

   (11)  Subsection 10 (2) of the Act is amended by striking out the portion before paragraph 1 and substituting the following:

Criteria

   (2)  In making an award, the board of arbitration shall take into consideration the following criteria:

.     .     .     .     .

   (12)  Subsection 10 (2) of the Act is amended by adding the following paragraph:

  5.1  The criteria set out in subsection 2 (1) of the Ability to Pay Act, 2012.

   (13)  Subsection 10 (3) of the Act is amended by striking out “The arbitrator” at the beginning and substituting “The board of arbitration”.

   (14)  Section 10 of the Act is amended by adding the following subsections:

Reasons

   (3.1)  Upon making its decision, the board of arbitration shall provide written reasons to each party.

Same

   (3.2)  The written reasons must clearly demonstrate that the board of arbitration has given proper consideration to the factors set out in paragraphs 1 to 6 of subsection (2).

   (15)  Subsection 10 (5) of the Act is amended by striking out “an arbitrator” and substituting “the board of arbitration”.

   (16)  Subsections 10 (6) and (7) of the Act are repealed and the following substituted:

Time for decision

   (6)  The board of arbitration shall give an award within 90 days after it is appointed.

   (17)  Section 11 of the Act is repealed and the following substituted:

Remuneration and expenses

   11.  Each party shall pay one-half of the remuneration and expenses of the board of arbitration.

   (18)  Subsection 13 (2) of the Act is amended by striking out “the arbitrator” and substituting “the board of arbitration”.

   (19)  Subsections 13 (3), (4), (5), (6) and (7) of the Act are repealed and the following substituted:

Award of board of arbitration

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

Same

   (4)  If the parties have not notified the board of arbitration in writing that, during the bargaining under this Act or during the proceedings before the board, they have agreed on some matters to be included in the collective agreement, the board shall decide all matters in dispute and the other matters that appear to it 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 board of arbitration or such longer period as may be agreed on in writing by the parties, the parties shall prepare and execute a document giving effect to the award of the board and any agreement of the parties, and the document constitutes a collective agreement.

Preparation of agreement by board of arbitration

   (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 board of arbitration and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the board in writing forthwith, and the board shall prepare a document in the form of a collective agreement giving effect to the award of the board 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 board within a period of five days from the day of its submission by the board 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.

   (20)  Section 14 of the Act is amended by striking out the portion before clause (a) and substituting the following:

Award of board of arbitration, retroactive terms

   14.  Despite section 16, in making an award, the board of arbitration may provide,

.     .     .     .     .

   (21)  Section 19 of the Act is repealed and the following substituted:

Filing of awards

   19.  The board of arbitration shall file a copy of every award with the Minister.

   (22)  Section 20 of the Act is amended by adding the following subsection:

Transition

   (3)  An arbitration proceeding commenced before the day the Ability to Pay Act, 2012 comes into force shall be conducted under this Act as it read immediately before that day.

Commencement

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

Short title

   22.  The short title of this Act is the Ability to Pay Act, 2012.

 

EXPLANATORY NOTE

The Bill enacts the Ability to Pay Act, 2012 and makes related amendments to 11 statutes in connection with interest arbitration.

Interest arbitrations in the public sector (broadly defined) are to be conducted by panels of three arbitrators.  They are required to take into account the following criteria, in addition to any other criteria provided by law: 

    1.   National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.   Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.   If applicable, the mandate of elected officials.

    5.   The fiscal situation of the Province (or, if the employer is a municipality or local board of a municipality, the municipality’s fiscal situation).

    6.   Any other criteria prescribed by regulation.

The arbitrators are required to provide written reasons clearly demonstrating that they have given proper consideration to the criteria. 

The Minister of Finance is required to establish, within existing resources of the Ministry of Finance, an Ability to Pay Division whose function is the collection and publication of information about interest arbitrations in the public sector and about related matters.

The Public Sector Dispute Resolution Act, 1997 is amended to add a reference to “the pressing financial need of the province to achieve fiscal solvency by freezing compensation levels in the public sector until the Province no longer has an annual deficit”.

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