What you need to know first is that first contract arbitration (“FCA”) is alive in Nova Scotia and turned one year old in February 2012. If your company was unionized after FCA came into effect in Nova Scotia and you don’t yet have an agreement you also need to know that FCA applies to you. The following outlines specific provisions and time frames arising from FCA provisions in the Trade Union Act that you need to know.
What’s the process?
- Where the Labour Board certifies a bargaining agent, a conciliation officer shall contact both parties within 14 days of certification to provide information and education on the collective bargaining process for the purposes of assisting in the settlement of a first collective agreement (s. 25A).
- The Trade Union Act contemplates that notice to commence collective bargaining may be initiated by either the union or the employer by notice in writing (s. 33).
- Once notice to commence collective bargaining is given, the union and the employer must meet and commence collective bargaining within 20 clear days after notice was given (or such further time as the parties may agree) and shall make every reasonable effort to conclude and sign a collective agreement (s. 35(a)).
- Where notice to commence collective bargaining has been given and collective bargaining has commenced, either party may request the Minister in writing to instruct a conciliation officer to confer with the parties to assist them to conclude a collective agreement. The Minister may instruct a conciliation officer to confer with the parties (s. 37).
- The conciliation officer may, after 90 days and before 120 days from the day of appointment, notify the Labour Board that the parties have not been able to conclude a first collective agreement (s. 38(3)).
- If the conciliation officer notifies the Board under s. 38(3) and 90 days has expired after certification and no collective agreement had been achieved, either the union or the employer may apply to the Board to settle the provisions of the first collective agreement (s. 40A(1)).
- The Board, upon receiving an application, shall as soon as practicable serve notice on the parties (s.40A(1)).
What are our options at this stage?
- Within 10 days after having been served Notice, the union and employer may serve notice on the Board of an agreement to conclude the first collective agreement by arbitration (s.40A(2)). Within 60 days after such notice is served on the Board, the arbitrator shall settle the provisions of the first collective agreement (s. 40A(3)).
- However, if the parties do not agree to arbitration, the Board will inquire into the negotiations between the parties and the parties shall make further attempts to conclude a collective agreement (s. 40A(5)). Where the parties are unable to conclude a first collective agreement within 60 days after the date of the application to the Board, the Board shall, within a further 3 days, either settle the first collective agreement (s. 40A(5)(a)) or notify the parties that, in the Board’s opinion, the parties might conclude a first collective agreement within 30 days after the date of the notice and that the Board declines to settle the provisions (s. 40A(5)(b)).
The 30-day time limit may be extended to 60 days if the Board decides that the extension may result in the conclusion of the first collective agreement or the parties agree to a further extension (s. 40A(6)).
- Where the Board sends Notice to the parties under s. 40A(5)(b) and the parties fail to conclude a first collective agreement, the Board shall, within a further 30 days, settle the provisions of the first collective agreement (s. 40A(7)).
What happens if there’s a strike or lockout?
- If the provisions for first contract arbitration are initiated (i.e., under s. 40A(1)) during a strike or lockout, the strike or lockout shall be terminated. Employees will return to their respective employment in accord with a reinstatement agreement. If there is no reinstatement agreement, the parties shall be reinstated according to seniority or according to a Board order (s. 40A(8)).
What does the Board or arbitrator have to consider when deciding the contract?
- In settling the provisions of a first collective agreement the Board or arbitrator shall accept, without amendment, provisions upon which the parties agreed and shall give the parties an opportunity to present evidence and make representations (s. 40A(9)).
- In creating the agreement, the Board or arbitrator may take into account: terms and conditions of employment, if any, negotiated through collective bargaining for employees performing the same or similar functions in the same or similar circumstances; and such other matters as considered of assistance in arriving at the provisions of the first collective agreement that are “fair and reasonable in the circumstances” (s. 40A(9)).
- As for duration, “the collective agreement is effective for a period of 1 year from the date on which the Board or arbitrator settles the provisions thereof” (s. 40A(10)).
How much time is involved?
Based on the new process (using the MAXIMUM time limits available), a FCA would be imposed no later than 293 days after certification.
Using the MINIMUM reasonably available time period, a FCA could be imposed by the Labour Board within about 200 days after certification.