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The Public Schools Amendment Act (2)

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S.M. 1996, c. 71

THE PUBLIC SCHOOLS AMENDMENT ACT (2)


 

(Assented to November 19, 1996)

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P250 amended

1         The Public Schools Act is amended by this Act.

2         Clause 106(1)(c) is amended by striking out "upon either December 31 or" and substituting "on".

3         The heading "BEGINNING OF COLLECTIVE BARGAINING" is added before section 109.

4         Subsection 110(1) is repealed and the following is substituted:

Notice to begin collective bargaining

110(1)    Either party to a collective agreement may, by a written notice given in April in the year the agreement expires, require the other party to the agreement to begin collective bargaining with a view to renewing or revising the agreement or concluding a new agreement.

Collective bargaining by mutual agreement

110(1.1)  Nothing in subsection (1) prevents the parties to a collective agreement, by mutual agreement,  from beginning collective bargaining before April in the year the agreement expires, in which case a notice to begin collective bargaining is conclusively deemed, for all purposes of this Part, to have been given under this section on April 1 in that year.

5         The following is added after section 110:

Matters for collective bargaining

110.1     Subject to this and any other Act, collective bargaining may be carried out in respect of terms and conditions of employment, including those described in subsection 126(2) (matters not referable for arbitration).

School board to provide financial information

110.2(1)  After notice has been given under section 109 or 110, the school board shall give the bargaining agent a copy of its most recent budget and access to relevant financial information in its possession or control related to the budget.

Explanation

110.2(2)  In addition, the school board shall provide an explanation of the budget and relevant financial information to the bargaining agent if requested to do so.

6(1)      Clause 111(a) of the English version is amended by striking out "agree to meet" and substituting "agree, meet".

6(2)      Subclause 111(b)(ii) is amended

(a) by striking out "a board of arbitrators" and substituting "an arbitrator or mediator-arbitrator "; and

(b) in the English version, by striking out "bargaining agents" and substituting "bargaining agent".

7         Section 112 is amended,

(a) in the part preceding clause (a) of the English version, by striking out "under section 110, the other party to the agreement" and substituting "under section 110 to the other party to the agreement,"; and

(b) in subclause (b)(ii), by striking out "a board of arbitration" and substituting "an arbitrator or mediator-arbitrator".

8         The following is added after section 113:

Parties may choose procedure to reach agreement

113.1(1)  After notice to begin collective bargaining has been given, the parties may, in writing, jointly request the minister to appoint either

(a) a conciliation officer under section 114; or

(b) a mediator-arbitrator under section 131.1.

If no joint request

113.1(2)  If a joint request has not been made under subsection (1) and at least 60 days have elapsed since notice to begin collective bargaining was given, either party may in writing request the minister to appoint a mediator-arbitrator under section 131.1.

9         Sections 114 and 115 and the heading "CONCILIATION" preceding section 114 are repealed and the following is substituted:

CONCILIATION AND ARBITRATION

Appointment of conciliation officer

114(1)    The minister shall appoint a conciliation officer if requested to do so jointly by the parties under section 113.1 and if there has been no request for the appointment of a mediator-arbitrator under that section.

Content of request

114(2)    The request for conciliation shall contain a statement of the difficulties, if any, that have been encountered before the beginning or during the course of collective bargaining, as well as a statement of any matters on which the parties have reached agreement.

Who shall be appointed

114(3)    The minister shall appoint a conciliation officer as defined in The Labour Relations Act, who is made available for that purpose by the minister charged with the administration of that Act.

Remuneration of conciliation officer

114(4)    The remuneration and expenses of the conciliation officer shall be shared equally by the parties, in an amount determined by the minister charged with the administration of The Labour Relations Act.

Duties of conciliation officer

114.1(1)  A conciliation officer who is appointed under section 114 shall confer with the parties and endeavour to assist them to conclude a collective agreement or a renewal or revision of a collective agreement.

Report to the minister

114.1(2)  Within 14 days after being appointed, or within any longer period or periods permitted by the minister, the conciliation officer shall give the minister a written report that sets out

(a) the matters, if any, on which the parties have agreed;

(b) the matters, if any, on which the parties cannot agree; and

(c) his or her recommendation as to the need for the appointment of an arbitrator.

Appointment of arbitrator

115(1)    If a conciliation officer's report under subsection 114.1(2) indicates a failure to conclude a collective agreement or a renewal or revision of a collective agreement, the minister shall appoint an arbitrator if

(a) either party requests the minister, in writing, to appoint an arbitrator; or

(b) in the opinion of the minister, an arbitrator should be appointed.

Who shall be appointed

115(2)    When the parties provide the minister with the name of a person selected by them jointly to act as an arbitrator, the minister shall appoint that person, but otherwise the minister shall appoint a person whose name is selected by the minister charged with the administration of The Labour Relations Act from one of the following lists:

(a) a list maintained by the Collective Agreement Board for the purpose of this section that sets out the names of arbitrators and mediator-arbitrators jointly selected by any school board and bargaining agent to act as an arbitrator or mediator-arbitrator under this Part in the preceding five-year period;

(b) the list maintained by The Manitoba Labour Board under subsection 117(2) of The Labour Relations Act.

10        Sections 116 and 117 are renumbered as sections 131.2 and 131.3 and the heading "CONTENTS AND EFFECT OF COLLECTIVE AGREEMENTS" is added before section 131.2.

11        Section 118 is repealed.

12        Section 119 is renumbered as section 131.6.

13        Sections 120 and 121 are renumbered as sections 131.8 and 131.9.

14        Sections 122 to 124 and the heading "CONCILIATION PROCEEDINGS" are repealed.

15        Sections 125 and 126 are repealed and the following is substituted:

Oath of office

125       Each arbitrator shall, before acting as such, take and subscribe before a person authorized to administer an oath or affirmation for use in the province, and file with the minister, an oath or affirmation in the following form:

"I do solemnly swear (or affirm) that I will faithfully, truly, impartially, and to the best of my knowledge, skill and ability, execute and perform the office of arbitrator appointed in respect of a dispute between The School District of     No.      or The      School Division No.    and the teachers employed by it and will not, except in the discharge of my duties, disclose to any person any of the evidence or other matter brought before me.  So help me God". (Omit last four words if person affirms.)

Statement of matters referred

126(1)    After appointing an arbitrator under section 115, the minister

(a) shall without delay deliver to the arbitrator a statement of the matters referred for arbitration; and

(b) may amend or add to the statement at any time before the arbitrator makes an award.

Matters not referable for arbitration

126(2)    Notwithstanding any other provision of this Act, the following matters shall not be referred for arbitration and shall not be considered by the arbitrator or included in the arbitrator's award:

(a) the selection, appointment, assignment and transfer of teachers and principals;

(b) the method for evaluating the performance of teachers and principals;

(c) the size of classes in schools;

(d) the scheduling of recesses and the mid-day break.

16(1)     Subsections 127(1) to (3) are repealed and the following is substituted:

Fixing of first meeting and notice

127(1)    Without delay after being appointed, the arbitrator shall set a time and place for the first meeting with the parties and shall give them and the minister at least seven days written notice of the meeting.

Procedure

127(2)    Except as otherwise provided in this Part, the arbitrator may determine his or her own procedure but shall give full opportunity to the parties to present evidence and make representations.

Subsequent meetings

127(3)    The arbitrator may fix the time and place of any subsequent meetings and shall notify the parties of the time and place so fixed.

16(2)     Subsections 127(4) to (7) are repealed.

16(3)     Subsection 127(9) is repealed and the following is substituted:

Weight of evidence

127(9)    In any proceedings before an arbitrator, no onus lies on either party to make prima facie proof of any matter alleged, but the arbitrator shall, in making an award, take into account the weight to be given to the evidence adduced.

16(4)     Subsection 127(10) is amended by striking out "board of arbitration" and substituting "arbitrator".

17        Section 128 is repealed and the following is substituted:

Production of evidence

128(1)    The arbitrator may summon witnesses and require them to give evidence orally or in writing, including by affidavit or otherwise as the arbitrator considers appropriate, and to produce any documents or things that the arbitrator considers necessary for the full investigation and consideration of the matters referred, whether such evidence, documents or things are admissible as evidence in a court of law or not.

Part V of Evidence Act powers

128(2)    The arbitrator has the same protection and powers as are conferred on commissioners appointed under Part V of The Manitoba Evidence Act.

Information may be made public

128(3)    Information obtained from evidence, including documents or things, produced to an arbitrator under subsection (1), may be made public, unless the arbitrator considers that the interest of either party in keeping the information confidential outweighs the importance of the principle of public disclosure.

Administration of oath or affirmation

128(4)    The arbitrator may administer an oath or affirmation for the purpose of receiving evidence.

18        Section 129 is repealed and the following is substituted:

Time for making award

129(1)    The arbitrator shall make an award within 30 days after concluding the proceedings, or within such longer period or periods as may be agreed to by the parties or permitted by the minister.

Contents of award

129(2)    The award shall set out the arbitrator's decision as to the way in which the matters in dispute between the parties are to be settled, which shall include the arbitrator's reasoning as to how the requirements of subsection (3) have been applied.

Factors

129(3)    The arbitrator shall, in respect of matters that might reasonably be expected to have a financial effect on the school division or school district, consider the following factors:

(a) the school division's or school district's ability to pay, as determined by its current revenues, including the funding received from the government and the Government of Canada, and its taxation revenue;

(b) the nature and type of services that the school division or school district may have to reduce in light of the decision or award, if the current revenues of the school division or school district are not increased;

(c) the current economic situation in Manitoba and in the school division or school district;

(d) a comparison between the terms and conditions of employment of the teachers in the school division or school district and those of comparable employees in the public and private sectors, with primary consideration given to comparable employees in the school division or school district or in the region of the province in which the school division or school district is located;

(e) the need of the school division or school district to recruit and retain qualified teachers.

Copies of award

129(4)    After making the award, the arbitrator shall immediately forward certified copies of it to the parties and to the minister.

Effect of award

129(5)    An arbitrator's award is binding on the parties.

Reconsideration of award

129.1     Within 30 days after the arbitrator has made an award, the minister may, at the request of either party, direct the arbitrator to reconsider and clarify or amplify the award or a part of it, and the award shall not be considered to be received by the minister, or to be made for the purpose of section 131, until the reconsidered award is received.

19        Section 130 is amended by striking out "the board of arbitration" wherever it occurs and substituting "the arbitrator".

20        Section 131 is amended by striking out "the board of arbitration established under section 115 makes its award" and substituting "the arbitrator appointed under section 115 makes an award".

21        The following is added after section 131:

MEDIATION-ARBITRATION

Appointment of mediator-arbitrator

131.1(1)  The minister shall appoint a mediator-arbitrator if requested to do so

(a) jointly by the parties under clause 113.1(1)(b); or

(b) by either party under subsection 113.1(2);

and if there has been no request for the appointment of a conciliation officer under clause 113.1(1)(a).

Content of request

131.1(2)  A request for the appointment of a mediator-arbitrator

(a) shall contain a statement of the difficulties, if any, that have been encountered before the beginning or during the course of collective bargaining, as well as a statement of any matters on which the parties have reached agreement; and

(b) may name a person selected by the parties jointly to act as a mediator-arbitrator.

Who shall be appointed

131.1(3)  When the parties provide the minister with the name of a person selected by them jointly to act as a mediator-arbitrator, the minister shall appoint that person, but otherwise the minister shall appoint a person whose name is selected by the minister charged with the administration of The Labour Relations Act from one of the following lists:

(a) a list maintained by the Collective Agreement Board for the purpose of this section that sets out the names of arbitrators and mediator-arbitrators jointly selected by any school board and bargaining agent to act as an arbitrator or mediator-arbitrator under this Part in the preceding five-year period;

(b) the list maintained by The Manitoba Labour Board under subsection 117(2) of The Labour Relations Act.

Mediation

131.1(4)  A mediator-arbitrator appointed under this section shall confer with the parties and endeavour to assist them to conclude a collective agreement or a renewal or revision of a collective agreement.

Conversion of mediation to arbitration

131.1(5)  If the parties fail to conclude a collective agreement or  a renewal or revision of a collective agreement within 60 days after the mediator-arbitrator's appointment,

(a) either party may, in writing, require the mediator-arbitrator to effect a collective agreement by arbitration; or

(b) the mediator-arbitrator may decide to effect a collective agreement by arbitration if he or she believes an impasse has been reached in the mediation process.

Notice of conversion

131.1(6)  When mediation is converted to arbitration under this section, the mediator-arbitrator shall, in writing, immediately inform the parties and the minister of that fact.

Effect of conversion to arbitration

131.1(7)  When an agreement is to be effected by arbitration under this section,

(a) the mediator-arbitrator has all of the powers, duties and protections of an arbitrator appointed under section 115; and

(b) sections 125 to 131, other than subsection 126(1), apply with necessary modifications.

22        The following is added as section 131.4:

Obligation to act fairly

131.4(1)  A school board shall act reasonably, fairly and in good faith in administering its policies and practices related to the matters described in subsection 126(2) (matters not referable for arbitration).

Failure to comply

131.4(2)  Any failure by a school board to comply with subsection (1) may be the subject of a grievance under the collective agreement and may be dealt with in accordance with the grievance process set out in the agreement.

23        The following is added as section 131.5:

Term of collective agreement

131.5(1)  Every collective agreement shall

(a) provide for a term of operation of not less than one year;

(b) state that it is effective on and after July 1 in the year in which it is to come into operation; and

(c) state that in the year in which it expires, the date of expiry is June 30.

No termination within first year

131.5(2)  No collective agreement shall be terminated by the parties within the year following the date on which it comes into operation, except as provided in section 106 or with the consent of the board.

Revision of collective agreement

131.5(3)  Nothing in this section prevents the revision of any provision of a collective agreement, other than a provision relating to the term of the agreement, that under the agreement is subject to revision during the term of the agreement.

24        The following is added as section 131.7:

Lockouts forbidden

131.7(1)  No school board shall declare or cause a lockout of teachers.

Meaning of "lockout"

131.7(2)  For the purpose of subsection (1), "lockout" has the meaning given to it in section 1 of The Labour Relations Act.

25        Subsection 136(3) is amended by striking out "The Wages Recovery Act" and substituting "The Payment of Wages Act."

26        Section 143 is amended by striking out "board of arbitration" wherever it appears and substituting "arbitrator or mediator-arbitrator".

27        Section 146 is repealed.

28        Section 147 is repealed and the following is substituted:

Remuneration of arbitrator or mediator-arbitrator

147       The remuneration and expenses of an arbitrator or a mediator-arbitrator appointed under this Part shall be shared equally by the parties to the dispute.

29        Sections 148 and 149 are repealed.

30        Sections 169 and 170 are amended by striking out "the board of arbitration" wherever it occurs and substituting "an arbitrator or mediator-arbitrator".

Repeal of unproclaimed provisions

31        Sections 277 and 278 of The Public Schools Act, as enacted by R.S.M. 1987, c. P250,  are repealed.

Application and coming into force

32(1)     This Act applies to every collective agreement, and every collective agreement renewal or revision, whose term of operation begins on or after January 1, 1997, and for this purpose and for all purposes of concluding such an agreement, renewal or revision, this Act, except sections 4 and 22, is retroactive and is deemed to have come into force on October 1, 1996.

32(2)     Sections 4 and 22 come into force on January 1, 1997.

32(3)     For greater certainty, this Act does not apply to a collective agreement, or a collective agreement renewal or revision, whose term of operation begins before January 1, 1997 or for the purposes of concluding such an agreement.

Transitional: notice to begin collective bargaining

33        Notwithstanding the coming into force of this Act, subsection 110(1)  of   The Public Schools Act, C.C.S.M. c. P250, in force on December 31, 1996, continues to apply in relation to a collective agreement that expires on a day other than June 30 in any year.

Transitional:  term of collective agreement

34        For the purpose of bringing into effect subsection 131.5(1), as enacted by section 23 of this Act, a collective agreement, or a collective agreement renewal or revision, whose term of operation begins on or after January 1, 1997

(a) may provide for a term of operation of less than one year; and

(b) may state that it is effective on and after January 1 rather than July 1.