Client Update: First Contract Arbitration

As many of you will now know, the Nova Scotia Government introduced legislation on Friday, December 6, 2013, amending provisions of the Nova Scotia Trade Union Act dealing with First Contract Arbitration. This client update sets out the changes and the impact that they will have on Nova Scotia employers.

HOW DOES THIS CHANGE THE LAW IN NOVA SCOTIA

If passed, Bill 19, will still allow the Labour Board to impose a first agreement but only after a determination that one of the bargaining parties is not using best efforts to reach a collective agreement. The automatic access to first contract arbitration that exists under the current legislation would be removed by the proposed amendments except in circumstances where the parties agree on an arbitrator. The amendments will also allow the parties more time to negotiate before access to the first contract arbitration process can be triggered.

Additional negotiation time is provided through the removal of provisions setting time limits on how soon a conciliation officer may notify the Board that the parties have reached an impasse and in the Board’s ability to return the parties to conciliation after an application is made. With the proposed amendments, the conciliator must now determine that the parties have reached an impasse before the matter can be placed before the Labour Board. The Board will then decide whether there has been conduct by one of the parties that has led to unsuccessful bargaining and only if such improper conduct is found will there be first contract arbitration. The Labour Board will essentially only be involved in situations where it determines that one of the bargaining parties is impeding the process.

In order to move to first contract arbitration (without agreement) under the current amendments, one of the parties will be required to show that:

• The other has refused to recognize its bargaining authority.
• The other has adopted an unreasonable position.
• The other has failed to make reasonable or timely efforts to reach a contract.
• Another bargaining element that the Labour Board deems relevant.

If the Board finds that the parties are using best efforts to bargain, it has the authority to direct that they return to conciliation or appoint an arbitrator. If the parties do not wish to have an arbitrator appointed, they can request that the Board settle the matter. Such requests must be made within seven days of the direction of the Board. While this avoids the expense of going to arbitration (which is borne equally by the parties), it still leaves employers in the position of having an outside party determine the terms and conditions of employment. If one of the parties requests the Board determine the matter, the hearing must commence within twenty-one days of the request. The Board must release a decision within 45 days of commencement of the hearing.

If the Board orders that the parties return to conciliation, they will have an additional 30 days within which to reach an agreement. If they are not able to reach agreement within this 30 day period, the Board will direct settlement by arbitration and an arbitrator will be appointed.

There can be no strike or lockout after a party applies to the Board or the Board has provided direction to return to conciliation.

There is currently no indication in the proposed legislation as to when the proposed amendments would take effect or from what date they would apply. Presumably, therefore, the legislation would take effect on the date of Royal Assent (formal approval by the Lieutenant Governor) and would apply to any case then before the Board or any new case. It is understood there are no outstanding cases.

WHAT DOES THIS MEAN TO YOU?

While the proposed amendments do not remove first contract arbitration, they are positive for the business community and will bring Nova Scotia’s legislation in line with other Canadian jurisdictions.

WHERE DO WE GO FROM HERE?

Bill 19 has passed First Reading, and is scheduled for Second Reading on December 9. After the Bill receives Second Reading, there will be debate on the proposed amendments. We anticipate that the Government will seek input from interested parties and that some employers will wish to make submissions as the Bill moves through the legislative process. We will continue monitoring the process of this Bill and keep you updated of the progress of this legislation.

The foregoing is intended for general information only. If you have any questions, or for a detailed list and background please view our Labour & Employment Group.