Bill No. 19 was introduced by the Nova Scotia Government on Friday, December 6, 2013. Bill No. 19 will, if passed, amend provisions of the Nova Scotia Trade Union Act dealing with first contract arbitration. The amendment passed through Second Reading on Monday, December 10, 2013 and Law Amendments Committee on Tuesday and Wednesday. BIll No. 19 is now before Committee of the Whole House and is likely to return to the legislature for Third Reading on Friday, December 13.
Bill No. 19 does not say when it would take effect or from what date the amendment would apply. It is likely the legislation would take effect immediately on 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 and Royal Assent may occur as the legislature breaks for the holidays on Friday, December 13. We will keep you informed of procedural developments as they occur and any changes that take place to Bill No. 19 before then. In the meantime, the following summarizes the bill and what it proposes to do to the existing legislation.
How Does this Change the Law in Nova Scotia
Bill No. 19, if passed, will allow the Labour Board to impose a first agreement but only after the board finds 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 amendment except in circumstances where the parties agree on an arbitrator.
The amendments will allow the parties more time to negotiate before access to the first contract arbitration process can be triggered. This is done by removing 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, a conciliator must 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 terms and conditions of employment. If one of the parties requests the Board determine the matter, the hearing must commence within 21 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.
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.