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An Act to amend The Labour Relations Act

R.S.M. 1987 Supp., c. 19

An Act to amend The Labour Relations Act

THE LABOUR RELATIONS ACT

Subsec. 21(1.1) added.

1

Section 21 of The Labour Relations Act, being chapter L10 of the Re-enacted Statutes of Manitoba, 1987, is amended by adding thereto immediately after subsection (1) thereof the following subsection:

Failure to hold vote by union an unfair labour practice.

21(1.1)

Where a union fails to hold a vote as required under subsection 94.1(6) within the two weeks specified in that subsection, the bargaining agent commits an unfair labour practice.

Part V.1 added.

2

The Act is further amended by adding thereto immediately after Part V thereof the following Part:

PART V.1

FINAL OFFER SELECTION

Final offer selection.

94.1(1)

Where there is a collective agreement in force, either party may apply in writing to the board for a vote to determine whether a dispute shall be resolved by the process of final offer selection, if the application is made not more than 60 days before the expiry of the collective agreement and not less than 30 days before the expiry of the term of, or preceding the termination of, a collective agreement.

Final offer selection during strike or lockout.

94.1(2)

Where the term of a collective agreement has expired and a strike or a lockout has continued for more than 59 days, the employer or the union may at any time after the 59th and before the 71st day of the strike or the lockout apply in writing to the board for a vote to determine whether the dispute shall be resolved by the process of final offer selection.

Hearing on application.

94.1(3)

Upon receipt of an application under subsection (1) or (2), the board shall forthwith hold a hearing to determine whether the requirements for an application under subsection (1) or (2) have been met.

Board to order vote on final offer selection.

94.1(4)

Where the board is satisfied that the requirements of subsection (1) or (2) have been met, the board shall

(a) order a vote in accordance with subsection (6); and

(b) determine, pursuant to subsections (9) and (10), the employees in the unit affected by the dispute.

Waiver of hearing.

94.1(5)

Where the parties so request, the board may waive the holding of a hearing under subsection (3) and, if it does so, the board shall

(a) order a vote in accordance with subsection (6); and

(b) determine, pursuant to subsections (9) and (10), the employees in the unit affected by the dispute.

Holding of vote.

94.1(6)

Within 14 days after the board has made an order under subsection (4) or (5), the union shall hold a vote by secret ballot of the employees in the unit affected by the dispute to resolve the following question:

"Do you wish to use the final offer selection process?" (Yes or No).

Result of vote.

94.1(6.1)

Forthwith after a vote is held under subsection (6), the union shall advise the board and the employer of the result of the vote.

Application of subsecs. 93(2) to (5).

94.1(7)

The provisions of subsections 93(2) to (5) apply with such modifications as the circumstances require to a vote held under subsection (6).

Majority vote.

94.1(8)

A majority of those voting on the question of final offer selection shall determine the question.

Vote.

94.1(9)

For the purposes of a vote under subsection (6), the employees in the unit affected by the dispute are the employees

(a) who were in the unit and on the employer's payroll at the time of the application or the strike or lockout began; and

(b) who, in the opinion of the board, have a continuing interest in the outcome of the dispute;

and includes or excludes, as the case may be, any persons included or excluded pursuant to subsection (10).

Variation in number.

94.1(10)

Where, in the opinion of the board, there is reason to include persons in or exclude persons from the bargaining unit affected by the strike, the board may do so.

Acceptance of final offer selection.

94.1(11)

Where, under subsection (6), the employees in the unit vote in favour of resolving a dispute by the process of final offer selection, and

(a) if a strike or lockout is in progress at the time of the vote, the employees shall forthwith terminate the strike or the employer shall forthwith terminate the lockout and the employer shall reinstate the employees in the unit on the same terms and conditions as existed under the collective agreement the term of which has expired pending the resolution of the dispute between the parties by the process of final offer selection or otherwise in accordance with this Act; or

(b) if no strike or lockout is in progress at the time of the vote

(i) the union shall not declare or authorize a strike of the employees,

(ii) the employer shall not declare or cause a lockout of the employees; and

(iii) no employee in the unit shall strike, pending the resolution of the dispute between the parties by the process of final offer selection or otherwise in accordance with this Act.

Appoint of selector agreed upon.

94.2(1)

The board shall attempt to have the parties agree on the choice of a selector within seven days of a vote under subsection 94.1(6) and, where the parties agree on the choice, the board shall forthwith appoint the selector agreed upon.

Appointment of selector where no agreement.

94.2(2)

Where the parties do not agree upon the appointment of a selector within seven days of a vote under subsection 94.1(6), the board shall appoint a selector from a list of persons maintained by the board for that purpose.

Replacement of selector.

94.2(3)

Where a selector appointed by the board dies, resigns, becomes ill or is unable from any other cause to fulfil the duties of a selector, the board may appoint another selector in accordance with subsection (1) or (2).

Fixing of dates.

94.2(4)

Forthwith after having been appointed, the selector shall fix dates for

(a) the filing of documents under subsection (7); and

(b) the hearing referred to in subsection (5); and the selector shall notify each party in writing of the dates so fixed.

Selector to hold hearing.

94.2(5)

On the date fixed under clause (4)(b), the selector shall hold a hearing to

(a) determine which terms and conditions of the proposed collective agreement are in dispute between the parties; and

(b) fix a date for the hearing referred to in subsection 94.3(1).

Submission of final offers.

94.2(6)

On the date fixed by the selector under clause (4)(a), each party shall submit to the selector in writing two copies of

(a) its final offer on all terms and conditions of the proposed collective agreement that are in dispute between the parties;

(b) where the party desires, material in support of its final offer; and

(c) a list of all the terms and conditions agreed upon by the parties prior to the date fixed under clause (4)(a).

Final offer may not be changed.

94.2(7)

Except as provided in subsection 82.6(1), neither party to a dispute may change its final offer referred to in clause (6)(a) in any material respect after submitting it to the selector.

Exchange of documents.

94.2(8)

After receiving the documents and material referred to in subsection (7), the selector shall send or deliver a copy of each party's documents and material to the other party.

Selection hearing.

94.3(1)

The selector shall, on the date fixed by the selector under clause 94.2(5)(b), hold a hearing in order to provide each party, or its representatives, with the opportunity to submit evidence and arguments in support of the final offer submitted by the party under subsection 94.2(6).

Waiving of hearing.

94.3(2)

Where the parties so request, the selector may waive the holding of a hearing under this section and may proceed to make a decision in accordance with subsection (4).

Adjournment of hearing.

94.3(2.1)

The selector may adjourn a hearing under this section from time to time, if in the opinion of the selector, the parties will be able to resolve the issues in dispute by negotiation.

Procedures at hearing.

94.3(3)

The selector may establish the procedures for the conduct of a hearing under this section.

Hearings in camera.

94.3(3.1)

A hearing under this section shall be held in camera.

Decision of selector.

94.3(4)

Subject to subsection (5), within 14 days after the conclusion of a hearing under subsection (1) or the waiver of a hearing under subsection (2), as the case may be, the selector shall

(a) select the whole of the final offer of either the union or the employer with respect to the terms and conditions of the proposed collective agreement which are still in dispute; and

(b) notify the parties in writing of the decision.

Limitation on decision.

94.3(5)

The selector shall not make a decision under subsection (4) until seven days have elapsed since the conclusion of the hearing.

Jurisdiction of selector retained.

94.3(6)

The failure of a selector to select a final offer under subsection (4) within the time specified under that subsection does not affect the jurisdiction of the selector to continue and complete the process of final offer selection prior to the appointment of a new selector under subsection (7).

Appointment of new selector.

94.3(7)

Where a selector fails or refuses to make a final offer selection as required under this section, the board may, after consulting with the parties to the dispute, appoint a new selector to make the final offer selection.

Factors to be considered in making decision.

94.3(8)

In making a decision under subsection (4), the selector may take into account

(a) the terms and conditions of the existing or any previous collective agreement between the parties;

(b) the 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 as the employees in the unit;

(c) changes in the cost of living as reflected in the Consumer Price Index for The City of Winnipeg published from time to time by Statistics Canada;

(d) where, in the opinion of the selector, the employer has provided sufficient information in respect thereof, the continuity and stability of employment for employees in the unit;

(e) where, in the opinion of the selector, the employer has provided sufficient information in respect thereof, the employer's ability to pay;

(f) such other matters as, in the discretion of the selector, will assist the selector in deciding whether a collective agreement between the parties which is fair and reasonable in the circumstances is more likely to result from the final offer of the union or the final offer of the employer.

Where final offer not submitted.

94.3(9)

Where one party fails to submit its final offer as required under subsection 94.2(7), the selector shall select the final offer submitted by the other party.

Finality of selector's decision.

94.3(10)

The decision of a selector under subsection (4) is final and binding on the parties and the employees in the unit, and the decision is not open to appeal or review in any court of law except on a question involving the jurisdiction of the selector.

Section 107 of Act applies.

94.3.1(1)

Section 107 applies with such modifications as the circumstances require to a hearing under subsection 94.3(1).

Powers of selector.

94.3.1(2)

A selector has all the powers, privileges and rights of a commissioner appointed under Part V of The Manitoba Evidence Act.

Evidence.

94.3.1(3)

A selector may receive and accept such evidence on oath or affirmation or otherwise as the selector deems proper whether the evidence is admissible in evidence in a court of law or not.

Secrecy of information.

94.3.1(4)

Information obtained from documents or things produced to a selector shall not be made public.

Offence.

94.3.1(5)

A person served with a summons pursuant to the powers of the selector under subsection (2) who fails to appear and give evidence on oath or affirmation or otherwise or to produce documents and things as required by the summons is guilty of an offence punishable on summary conviction.

Witness fees.

94.3.1(6)

Every person, except a witness summoned at the request of a party, who is summoned by a selector and who duly attends as a witness, is entitled to an allowance for expenses determined in accordance with the scale for the time being in force with respect to witnesses in civil suits in the Court of Queen's Bench.

Costs of selector.

94.4(1)

The parties shall equally bear the fees and expenses of the selector and any allowance for expenses of witnesses summoned by the selector.

Costs.

94.4(2)

Each party is responsible for the costs of preparing for, and presenting, its case at the hearing referred to in subsection 94.3(1), including the fees of its witnesses.

Collective agreement.

94.5(1)

Forthwith after receiving the decision of the selector under subsection 94.3(4), the parties shall commit to writing and shall file with the board

(a) the terms and conditions of the proposed collective agreement which have been agreed to between the parties; and

(b) the whole of the final offer selected by the selector;

and the resulting documents referred to in clause (a) and (b) constitute the collective agreement between the parties.

Effect of failure to comply with obligations.

94.5(2)

Where either party to the dispute fails or refuses to comply with subsection (1), the other party may comply with the requirements of that subsection in which case the documents filed by that other party constitute the collective agreement between the parties.

Duration of collective agreement.

94.5(3)

Except where the parties otherwise agree, the selector shall decide that the agreement referred to in subsection (1) or (2) shall be for a period of one year either from the date on which the previous collective agreement expired or the date on which the selector made a decision under subsection 94.3(4) or (9).

Negotiated settlement.

94.6(1)

Notwithstanding that the employees in a unit have accepted final offer selection in accordance with subsection 94.1(6), the union and the employer may, at any time, bargain collectively in accordance with this Act or the terms of a collective agreement between them with the view to renewing or revising the collective agreement, or concluding a new collective agreement between them, and

(a) if, prior to expiration of 48 hours following the conclusion of a hearing under subsection 94.3(1), or the waiving of a hearing under subsection 94.3(2), the union and the employer reach agreement on some of the terms and conditions of the proposed collective agreement which are in dispute between them, they shall notify the selector forthwith as to the terms and conditions on which agreement has been reached and the selector shall not consider the final offer of either party with respect to those terms and conditions in making a decision under subsection 94.3(4); and

(b) if, prior to the decision of the selector under subsection 94.3(4), the union and the employer reach agreement on all of the terms and conditions of the proposed collective agreement which are in dispute between them, they shall forthwith notify the selector thereof and the appointment of the selector thereupon terminates and the terms and conditions of the collective agreement between the parties shall be those negotiated through the process of collective bargaining.

Deemed Ratification

94.6(1.1)

Where the union and the employer reach agreement on some or all of the terms and conditions of a proposed collective agreement and notify the selector pursuant to clause 94.6(1)(a) or (b), the agreed terms for the purposes of subsection 94.6(1) and the agreed terms submitted to the selector pursuant to subsection 94.2(6) are deemed to have been ratified by the employees in the unit.

Compensation where selector's appointment terminates.

94.6(2)

Notwithstanding that the appointment of a selector has terminated in accordance with clause (1)(b) or otherwise in accordance with this Act, the selector is entitled to receive reasonable fees and expenses from the parties in accordance with the provisions of section 94.4.

Terms and conditions binding.

94.7(1)

The terms and conditions of a collective agreement

(a) selected by a selector under subsection 94.3(4) or (9); or

(b) deemed under subsection 94.6(1.1) to have been ratified by the employees;

are binding on the employer and the employees in the unit involved as if those terms and conditions were voluntarily agreed to by the parties to the dispute.

Amendment of agreement.

94.7(2)

A collective agreement containing the terms and conditions referred to in subsection (1) may be amended by the parties thereto by subsequent agreement in writing but no such amendment may reduce the term of the agreement determined pursuant to subsection 94.5(3).

Expiry date.

3

This Act expires at the end of five years from the date of proclamation.

Commencement of Act.

4

This Act comes into force on a date fixed by proclamation.