BILL 4

An Act to Amend the Industrial Relations Act

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

1 The Industrial Relations Act, chapter I-4 of the Revised Statutes, 1973, is amended by adding after section 36 the following:

Binding arbitration in the case of a first contract

36.1( 1) When a notice to commence collective bargaining has been given under section 32 and the parties are unable to bring about a first collective agreement, either party may request that the Minister refer the matter to the Board for first contract arbitration.

36.1( 2) A request under subsection (1) shall not be made to the Minister until the following, whichever occurs first:

(a)  a party has requested the Minister to instruct a conciliation officer to confer with the parties and seven days have elapsed from the date on which the Minister has released to the parties a notice under subsection 36(3) that the Minister does not deem it advisable to appoint a conciliation officer or mediator under section 70,

(b)  if the Minister has appointed a conciliation officer or a mediator under paragraph (a), seven days have elapsed after the Minister has released to the parties a notice that the Minister does not deem it advisable to appoint a conciliation board, or

(c)  if the Minister has appointed a conciliation board, seven days have elapsed after the Minister has released to the parties the report of the conciliation board.

36.1( 3) Within seven days of receiving a request under subsection (1), the Minister shall deliver the request to the Board and to the other party.

36.1( 4) If the Board receives a request under subsection (3), the Board shall inquire into the negotiations between the parties on the settlement of a first collective agreement and determine if the party making the request can demonstrate the existence of one or more of the following conditions:

(a)  the refusal of the employer to recognize the bargaining authority of the bargaining agent,

(b)  the uncompromising nature of any bargaining position adopted by the other party without reasonable justification,

(c)  the failure of the other party to make reasonable or expeditious efforts to conclude a first collective agreement, or

(d)  any other condition the Board considers relevant.

36.1( 5) Not later than 30 days after inquiring into the negotiations between the parties, if

(a)  the Board determines that a condition under subsection (4) has not been demonstrated, it shall refuse the request and inform the parties and the Minister of its determination, or

(b)  the Board determines that a condition under subsection (4) has been demonstrated, it shall inform the parties and the Minister of its determination and

( i) refer the matter to the Minister who shall appoint a mediation officer under section 71 to confer with the parties and endeavour to effect a first collective agreement, or

( ii) after conferring with the parties, submit the matter to an arbitrator or an arbitration board that shall render an award.

36.1( 6) If the Minister appoints a mediation officer under subparagraph (5)(b)(i), the mediation officer shall make a report to the Minister in accordance with subsection 71(5) within 30 days after the mediation commences.

36.1( 7) If the mediation officer advises the Minister under subsection (6) of the parties’ failure to conclude a first collective agreement, the Minister shall inform the Board of the failure and the Board shall refer the matter to an arbitrator or an arbitration board under subparagraph (5)(b)(ii) within 14 days.

36.1( 8) Within seven days of receiving notice from the Board that the matter is being submitted to an arbitrator or an arbitration board, either party may apply to the Board to have the Board conduct the arbitration itself, in which case the Board is bound to conduct the arbitration.

36.1( 9) If the arbitration is submitted to an arbitrator or an arbitration board under subparagraph (5)(b)(ii),

(a)  each of the parties shall pay one-half of the remuneration and expenses of the arbitrator or arbitration board,

(b)  the arbitration shall commence within 14 days of the arbitrator or arbitration board being appointed or constituted, and

(c)  the Board may extend, if required, the time limit under paragraph (b).

36.1( 10) If the Board conducts the arbitration itself,

(a)  the Board shall conduct the arbitration in accordance with section 8 of the Labour and Employment Board Act,

(b)  the Board is deemed to be an arbitration board under this Act,

(c)  the Board shall determine the date on which the arbitration is to be commenced, hear the matter within 21 days of receiving the application under subsection (8) and render an award within 45 days of the date on which the arbitration commences,

(d)  the Board may extend, if required, the time limit under paragraph (c), and

(e)  in the event of a conflict between this subsection and any other provision of this Act, this subsection prevails.

2 Subsection 79(3) of the Act is repealed and the following is substituted:

79( 3) On the filing of an agreement to arbitrate under subsection (1) or on submitting the difference to an arbitrator or an arbitration board under subparagraph 36.1(5)(b)(ii), subsections 55(2) to (5), section 73 and 74, subsections 75(1) and (2), subsections 76(1) and (2) and subsections 77(1) and (2) shall apply with the necessary modifications and subsection 131(2) shall apply to the proceedings and award of the arbitrator or arbitration board as if the arbitrator or arbitration board were named therein.

3 Section 92 of the Act is amended

(a)  by repealing subsection (2) and substituting the following:

92( 2) No employee shall strike and no employer shall lock-out any employee during the period of the proceedings and from the date of the report or award and during the period that the report or award or a collective agreement incorporating the report or award is in operation if

(a)  a party receives a request to arbitrate a first collective agreement under subsection 36.1(3), until the Board makes a decision under subsection 36.1(5),

(b)  the Board takes any action referred to in paragraph 36.1(5)(b) or subsection 36.1(10), and that despite any right to strike or lock-out that would apply under subsection 71(5), or

(c)  a conciliation board has been appointed to conciliate a dispute between an employer and a trade union and the parties have agreed to be bound

( i) by an award under section 69,

( ii) by an award of an arbitrator or arbitration board appointed or constituted under section 79, or

( iii) by an award of an arbitrator or arbitration board appointed or constituted under section 80.

(b)  by adding after subsection (2) the following:

92( 2.1) If a request for the arbitrage of a first collective agreement under section 36.1 is rejected, the employees shall be permitted to strike and the employer permitted to lock-out its employees, as long as the conditions under this Act are complied with.

4 Subsection 105.1(7) of the Act is amended by adding after paragraph (a) the following:

(a.1)  where the Board submits the matter to an arbitrator or an arbitration board under subparagraph 36.1(5)(b)(ii),