Second Session, 44th General Assembly
49 Elizabeth II, 2000
AN ACT TO AMEND THE
|Received and Read the First Time|
HONOURABLE OLIVER LANGDON
Minister of Environment and Labour
Ordered to be printed by the Honourable House of Assembly
This Bill would amend the Fishing Industry Collective Bargaining Act to implement a new labour relations dispute settlement model known as final offer selection. This model has been the subject of a pilot project and is considered to be an effective mechanism by government, parties to negotiations and other industry stakeholders.
AN ACT TO AMEND THE FISHING INDUSTRY COLLECTIVE BARGAINING ACT
1. General Amdt.
2. S.2 Amdt.
3. S.2.1 Added
4. S.8 R&S
5. S.13 Amdt.
6. Ss. 13.1 to 13.7 R&S
7. S.18 Amdt.
8. S.19 Amdt.
9. S.23 Amdt.
10. S.35.1 to 35.12 R&S
11. S.42 Amdt.
12. S.44 Amdt.
13. S.49.1 Added
Be it enacted by the Lieutenant-Governor and House of Assembly in Legislative Session convened, as follows:
(2) Paragraph 2(1)(e) of the Act is repealed and the following substituted:
(e) "collective agreement" means an agreement in writing between a processor or a processors' organization acting on behalf of a processor and a bargaining agent for fishers acting on behalf of the fishers containing terms or conditions of the relationship of the processor to the fishers, including provisions with reference to rates of pay for fish supplied to a processor by the fishers concerned, and includes a decision made by an arbitrator;
(3) Paragraph 2(1)(j) of the Act is amended by deleting the number "1" and substituting the word "one".
(4) Subsection 2(1) of the Act is amended by adding immediately after paragraph (m) the following:
(m.1) "Memorandum of Understanding" means a Memorandum of Understanding negotiated by the parties under section 35.8 and subject to this Act and includes
(i) the guidelines for arbitrations, and
(ii) the processes for arbitrations;
(5) Paragraph 2(1)(n) of the Act is repealed and the following substituted:
(n) "minister" means the minister appointed under the Executive Council Act to administer this Act;
(6) Paragraph 2(1)(p) of the Act is repealed.
(7) Paragraph 2(1)(q) of the Act is amended by deleting the period at the end of that paragraph and substituting a semicolon and the word "and" and by adding immediately after that paragraph the following:
(r) "processor" means a person licensed under the Fish Inspection Act to process or buy fish; and
(s) "processors' organization" means an organization of processors formed for purposes including the regulation of relations between processors and fishers.
(8) Subsection 2(3) of the Act is amended by deleting the number "1" and substituting the word "one".
(2) An application under subsection (1) may only be made between September 1 and October 31 inclusive in the time period established in section 35.12.
(3) Notwithstanding subsection (2), where a collective agreement is not in force and an accredited bargaining agent has not been certified under this Act for the unit, the application may be made at any time.
(4) Two or more associations claiming to have as members in good standing of the associations a majority of fishers in a unit that is appropriate for collective bargaining may join in an application under this section and the provisions of this Act relating to an application by one association and all matters or things arising from that application shall apply with respect to the application and the associations as if it were an application by one association.
(2) An application under subsection (1) may only be made between September 1 and October 31 inclusive in the time period established in section 35.12.
(a) shall offer membership to processors on terms that are no less favourable than the terms offered to existing members; and
(b) shall not deny membership to a processor for whom it is the bargaining agent for a reason other than refusal or failure to pay the periodic dues, assessments and initiation fees ordinarily required to be paid by all members of the processorsí organization as a condition of acquiring or retaining membership in the organization.
Expedited accreditation process
(2) A processor who has received notice under subsection (1) may, within 10 business days of receiving that notice, make representations to the board with respect to whether the applicant produces the majority percentage of fish by finished product weight based on the previous calendar yearís production, and subject to the merits of those representations, the board may, in its discretion, hold a hearing with respect to that application for accreditation.
(3) Where an application is made under section 13.1 and the board has fulfilled the requirements of subsections (1) and (2), and is satisfied that the processorsí organization produces the majority percentage of fish by finished product weight based on the previous calendar yearís production as determined on the basis of records referred to in subsection 13.1(2), the board shall accredit the applicant.
(a) the processorsí organization is a properly constituted organization controlled by its members; and
(b) each of its members has vested appropriate authority in the organization to enable it to discharge the responsibilities of an accredited bargaining agent.
(2) Where the board is of the opinion that appropriate authority has not been vested in the processorsí organization, the board may dismiss or postpone disposition of the application to enable processors who are member of the processorsí organization to vest in the organization whatever additional or other authority the board considers necessary.
(2) Where a processor referred to in subsection (1) or a member of an accredited processorsí organization fails to comply with a provision of a collective agreement referred to in that subsection, the accredited processorsí organization may apply to the board for a determination on the matter and the board may make that determination.
(a) an accredited processorsí organization; or
(b) one or more members of an accredited processorsí organization
may apply to the board for a declaration that the accreditation of that organization be revoked.
(2) Where an application is made under paragraph (1)(a), the board shall declare the accreditation of that processorsí organization revoked.
(3) Where an application is made under paragraph (1)(b), the board shall ascertain the processors in the accredited processorsí organization who, within a 2 month period immediately preceding the date of the making of the application, have voluntarily indicated in writing that they no longer wish to be represented by that organization and where the board is satisfied that
(a) processors processing the majority percentage of fish by finished product weight based on the previous calendar yearís production have voluntarily indicated in writing that they no longer wish to be represented by the accredited processorsí organization; and
(b) it can be shown that the accredited processorsí organization no longer fulfils the requirements of section 13.1 as determined on the basis of records submitted by processors to the Department of Fisheries and Aquaculture under the requirements of the Fish Inspection Act and the regulations made under that Act and the Fisheries Act in the context of obtaining licence renewal and reporting production from the previous calendar year
the board shall declare the accreditation of the processorsí organization revoked.
(2) Paragraph 18(2)(a) of the Act is amended by deleting the number "1" and by substituting the word "one".
(a) "arbitrator" means an arbitrator appointed under section 35.4 or under section 35.5; and
(b) "party" and "parties", notwithstanding paragraph 2(1)(q), means an association of fishers or a certified bargaining agent for fishers, and a processorsí organization, or an accredited processorsí organization who may or may not be bound by a collective agreement.
Notice of and schedule for negotiations
(2) The parties to collective bargaining shall, before February 1 in a year, establish a negotiation schedule with respect to each fish species which will be subject to collective bargaining during that year and the parties shall negotiate according to that schedule unless modified under subsection (4).
(3) Where a schedule has been established for a fish species under subsection (2), the parties shall, in writing, notify the minister of that schedule not later than 60 days before the expected opening date of the fishery for that species.
(4) Subject to subsection (2), the parties to collective bargaining may, by mutual consent, amend the negotiation schedule established under that subsection and shall notify the minister immediately of those changes.
(a) may, by mutual consent, establish a joint technical committee composed of persons who represent the interests of each party; and
(b) shall recommend to the minister, in writing, a person to be a facilitator for the negotiations.
(2) When a person is recommended to the minister as a facilitator under paragraph (1)(b), the minister shall, immediately upon receiving that recommendation, appoint that person as the facilitator.
(3) A joint technical committee established under this section shall compile factual material and identify issues with respect to the negotiations which gave rise to the establishment of that committee.
(2) Where a person is recommended to the minister as an arbitrator under subsection (1), the minister shall immediately upon receiving that recommendation, appoint that person as the arbitrator.
(3) An arbitrator appointed under subsection (2) shall not be a party to the negotiations or, where there is a collective agreement in place, a party to the collective agreement from which an issue arose to give rise to the negotiations.
(4) Where, due to absence, incapacity or other cause an arbitrator appointed under this section is unable to act within the time required by this Act, a Memorandum of Understanding, or in the absence of a Memorandum of Understanding, the regulations, the parties may, by mutual consent, recommend another person to be an arbitrator to, and where called upon, arbitrate the matter under negotiation, and upon receiving that recommendation the minister shall immediately appoint that other person as the arbitrator.
(5) When an arbitrator is appointed under this section, the facilitator shall inform the arbitrator of the facts and issues that pertain to the negotiations.
(a) a facilitator under section 35.3; or
(b) an arbitrator under section 35.4
make the recommendations to the minister that are required by sections 35.3 and 35.4 within the time required by those sections.
(2) Where the parties to negotiations fail to make the appointment required under subsection (1), the minister shall, 15 days from the expiry of the time period referred to in sections 35.3 and 35.4, appoint a facilitator under section 35.3 or an arbitrator under section 35.4 where the required recommendations for a facilitator or an arbitrator have not been made by the parties under those sections.
(3) Where the parties fail to establish a negotiation schedule under section 35.2 within the time required under that section, the minister shall establish a negotiation schedule as required by that section.
(a) the negotiated or arbitrated prices for a fish species; or
(b) other terms or conditions of a collective agreement,
in place for that fishing season or a previous fishing season, except in accordance with sections 35.1 to 35.11 or a new collective agreement.
(2) Where final positions on price and other matters have been submitted to an arbitrator under subsection (1), he or she shall hear and consider those positions and shall make a decision with respect to those submissions and that decision shall be in accordance with one of the final positions on price and other matters submitted under subsection (1) unless the parties who submitted those positions have agreed to another form of arbitration.
(3) Final offer selection, the process referred to in subsections (1) and (2), shall be the form of arbitration used by the parties unless, at the commencement of the negotiations, the parties to the negotiations determine by agreement that another form of arbitration is acceptable to them.
(4) The arbitrator shall notify all parties to the negotiations of his or her decision not later than 7 days after receiving the final positions submitted under subsection (2).
(5) Where a decision of an arbitrator made under subsection (2) is an interim decision on price and other matters, or provides for an interim price schedule for a fish species rather than a final decision or a full season price, the parties in negotiation over that price and other matters shall continue to attempt to reach an agreement with respect to the full season price and other matters until not later than 14 days before the expiry date specified in the decision for the interim price and other matters or interim price schedule at which time the parties shall submit their final positions on the matter to the arbitrator who shall decide upon the matter and shall notify the parties of his or her decision not later than 7 days before the expiry date specified in the decision for the interim price and other matters or interim price schedule.
(6) Where an arbitrator makes a decision under this section, a collective agreement is considered to be in place with respect to that species according to the arbitratorís decision.
(7) An arbitrator acting under this section shall comply with the guidelines for arbitration and the processes for arbitration agreed to by the parties in a Memorandum of Understanding, or where no Memorandum of Understanding exists or where it exists but is silent on those issues, an arbitrator shall comply with the regulations prescribed by the Lieutenant Governor in Council under section 49.1.
(a) an arbitrator appointed under section 35.4 or 35.5 shall comply with that Memorandum of Understanding; and
(b) that Memorandum of Understanding is binding upon the parties to it.
(2) A Memorandum of Understanding negotiated under subsection (1) may be changed over the course of the year to which it applies by mutual consent of the parties to it, and changes made to it shall be filed with the minister immediately.
(3) Where the parties fail to file a Memorandum of Understanding by December 31 in every calendar year as required under subsection (1), on application of one of the parties the minister shall, not later than 7 days after that date, appoint an arbitrator to consider the matter, and the parties shall, not later than 7 days from the appointment of that arbitrator, each submit a final position on the matter to him or her.
(4) Where final positions are submitted under subsection (3), the arbitrator shall hear and consider those positions and shall make a decision with respect to the matter and that decision shall be in accordance with one of the final positions submitted under subsection (3).
(5) The arbitrator shall notify all parties to the negotiations of his or her decision not later than 7 days after receiving the final positions submitted under subsection (3).
(6) A decision by an arbitrator under this section shall determine the content of the Memorandum of Understanding between the parties for the upcoming year and shall be binding upon the parties as if it had been agreed to by the parties under subsection (1).
(7) Where there is a conflict between a provision of a Memorandum of Understanding and this Act, this Act prevails.
(a) a certified bargaining agent negotiates a collective agreement for fish species on price and other matters, or where price and other matters are determined by an arbitrator under section 35.7; and
(b) that collective agreement or decision by an arbitrator is binding upon the processors who process the majority percentage of fish by finished product weight based upon the previous calendar yearís production of that fish species
the terms of that collective agreement or that determination by an arbitrator under section 35.7 are binding upon all processors in the province who process that fish species.
(2) Where, after December 31 in the year referred to in section 35.12, a party has opted out under that section, sections 23, 26, 27 and 28 shall no longer be considered to be suspended and shall be of full effect but sections 35.1 to 35.11 shall be considered to be suspended and shall be of no effect.
(a) setting the guidelines for arbitrations;
(b) outlining the arbitration processes; and
(c) generally, to give effect to the purpose of this Act.
©Earl G. Tucker, Queen's Printer