BILL NO. 60

(as introduced)

2nd Session, 58th General Assembly
Nova Scotia
50 Elizabeth II, 2001

Private Member's Bill

Trade Union Act

Frank Corbett
Cape Breton Centre

First Reading: May 22, 2001

(Explanatory Notes)

Second Reading:

Third Reading:

Clause 1 provides that a trade union claiming to have as members in good standing more than fifty per cent of the employees in a unit appropriate for collective bargaining may apply to the Labour Relations Board for certification and the Board may certify the union without holding a vote of the employees.

Clause 2 clarifies what constitutes a sale, lease or transfer of a business for the purpose of successor rights.

Clause 3 sets out a procedure for first-contract arbitration.

Clause 4 sets out an expedited arbitration procedure.

Clause 5 prohibits the use of replacement workers during a strike or lockout.

Be it enacted by the Governor and Assembly as follows:

1 Chapter 475 of the Revised Statutes, 1989, the Trade Union Act, is amended by adding immediately after Section 25 the following Section:

25A (1) Notwithstanding Sections 23 to 25, a trade union claiming to have as members in good standing more than fifty per cent of the employees in a unit appropriate for collective bargaining may make application to the Board to be certified as bargaining agent of the employees in the unit.

(2) When determining whether a trade union represents a majority of the employees in a bargaining unit, the Board shall consider whether, at the date of application pursuant to the subsection (1), a majority of the employees in the unit had signed applications for membership in the trade union.

(3) Where the Board is satisfied that the trade union represents a majority of the employees in the bargaining unit, the Board shall certify the trade union as the bargaining agent of the employees without taking a vote of the employees.

(4) Where there is a dispute between an employer and a trade union about whether the union has applied for the appropriate bargaining unit or whether employees should be included or excluded from the bargaining unit, the dispute shall be resolved by the Board, without a hearing, after giving the employer and the trade union an opportunity to submit documents and make representations to the Board.

2 Section 31 of Chapter 475 is amended by adding immediately after subsection (1) the following subsection:

(1A) For the purpose of subsection (1), the sale, lease or transfer of a business by an employer includes

(a) the transfer of a business from federal to Provincial jurisdiction;

(b) the transfer of an undertaking from Her Majesty in right of the Province to the private sector;

(c) the transfer of an undertaking pursuant to an enactment to the private sector;

(d) the transfer of a business to or from a receiver appointed by a financial institution, a court or pursuant to an enactment;

(e) the issuance of a franchise from a unionized employer; and

(f) circumstances where a unionized employer ceases to provide services under a contract and another employer is contracted to provide similar services.

3 Chapter 475 is further amended by adding immediately after Section 36 the following Section:

36A (1) Where a trade union has been certified and has attempted to bargain a collective agreement with an employer and has failed to conclude a collective agreement, either the trade union or the employer may request the Board to appoint an arbitrator to conduct binding arbitration of a first collective agreement between the trade union and the employer.

(2) The Board shall appoint the arbitrator mutually agreed upon by the trade union and the employer or, where no agreement can be reached between the trade union and the employer, the Board shall select and appoint the arbitrator.

(3) Notwithstanding subsection (2), where both the trade union and the employer agree on the appointment of an arbitration board rather than a single arbitrator, each party shall nominate a representative to the arbitration board and the Board shall select the chair of the arbitration board.

(4) After receiving a request from either the trade union or the employer, the Board shall appoint an arbitrator or an arbitration board, as the case may be, and the arbitrator or the arbitration board has the right to impose on the trade union and the employer the terms of a binding collective agreement.

(5) The cost of a single arbitrator appointed by the Board pursuant to this Section shall be paid by the Department of Environment and Labour or, where an arbitration board is appointed pursuant to this Section, each of the parties shall pay the cost of their nominee to the arbitration board and the costs of the chair of the arbitration board shall be paid by the Department of Environment and Labour.

(6) Where either the trade union or the employer has made an application pursuant to this Section for the appointment of an arbitrator or an arbitration board, neither the trade union nor the employer has the right to strike or lockout or to continue an existing strike or lockout.

(7) The term of the first collective agreement imposed pursuant to this Section shall be no less than one year and no more than two years, but terms and conditions may be imposed by the arbitrator or the arbitration board, as the case may be, back to the date of certification of the trade union.

(8) When imposing a first collective agreement pursuant to this Section, the arbitrator or arbitration board, as the case may be, shall determine the terms and conditions of employment based on the terms and conditions already agreed to by the trade union and the employer, minimum terms and conditions of employment contained in labour standards legislation and comparable terms and conditions of employment in collective agreements freely arrived at by collective bargaining in the same industry.

4 Chapter 475 is further amended by adding immediately after Section 46 the following Section:

46A (1) Within thirty days of a matter in dispute being brought by one party to the dispute to the attention of the other party to the dispute, the party initiating the grievance may apply to the Minister to have an arbitrator appointed to deal with the dispute.

(2) Upon an application pursuant to subsection (1), the Minister shall appoint an arbitrator forthwith.

(3) The arbitrator appointed by the Minister shall begin a hearing on the dispute within seven days of the appointment of the arbitrator.

(4) The decision of the arbitrator shall be rendered within thirty days of the commencement of the hearing and the decision shall include the decision of the arbitrator on the matter in dispute along with a brief summary of the reasons for the decision.

(5) The decision of the arbitrator referred to in subsection (4) shall be delivered to the parties no later than seven days after the conclusion of the hearing or within thirty days of the commencement of the hearing, whichever first occurs.

(6) The decision of an arbitrator pursuant to this Section is final and binding on the parties and not subject to judicial review.

(7) The list of arbitrators from which the Minister selects an arbitrator for a dispute pursuant to this Section shall be developed by a process in which representatives of trade unions and employers select and evaluate arbitrators and develop guidelines for arbitrators, including the costs of an arbitration.

(8) Where the party initiating a grievance does not apply for the appointment of an arbitrator within thirty days of the matter in dispute being brought to the attention of the other party, the provisions of the collective agreement respecting grievance and arbitration apply.

5 Chapter 475 is further amended by adding immediately after Section 52 the following Section:

52A (1) During a legal strike or lockout, an employer is prohibited from using the services of any person to perform work ordinarily done by the striking or locked out employees, including

(a) employees of the employer in another establishment transferred or any persons hired between the day negotiations began and the end of the strike or lockout;

(b) employees of other employers and subcontractors;

(c) members of the bargaining unit involved in the strike or lockout;

(d) persons employed by the employer in another establishment;

(e) persons who are not employees under the Trade Union Act, but whom the employer employs in another establishment;

(f) employees in the establishment who do not belong to the bargaining unit on strike or locked out.

(2) Upon application by the trade union whose members are on strike or locked out, the Minister may appoint an investigator to determine whether subsection (1) is being complied with.

(3) Upon completing the investigation, the investigator shall make a written report to the Minister.

(4) At the end of a strike or lockout, an employee who was on strike or locked out is entitled to priority over any person performing duties or functions contrary to this Section.

(5) Any dispute arising under this Section shall be submitted to arbitration as if it were a grievance under the collective agreement.