Legal Alert: NS Government Proposes Changes To First Contract Arbitration in NS

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Legal Alert: NS Government Proposes Changes To First Contract Arbitration in NS

: December 9, 2013

On December 6, 2013 the NS Government introduced changes to first contract arbitration in NS that won’t take it off the table altogether – but will significantly change the process. Bill No. 19, if passed into law, will amend the first contract arbitration regime implemented with the 2011 enactment of section 40A of the Trade Union Act:

Board Discretion. Under the current legislation, if the union and the employer have unsuccessfully engaged in both collective bargaining and conciliation, either party can apply to the NS Labour Board for – and get – first contract arbitration. Essentially, a party can apply for first contract arbitration when merely faced with an impasse owing to hard bargaining. Under Bill No. 19, however, the Board will have discretion to determine whether first contract arbitration should commence if it determines – with reference to specific factors in the Bill – that collective bargaining has been unsuccessful. Effectively, a party seeking first contract arbitration will be required to demonstrate to the Board that the other party has engaged in “bad faith” bargaining. If the Board is satisfied that both parties are making a good faith effort to reach an agreement, it can direct the parties to resume conciliation. These changes mirror the Ontario Labour Relations Act and would bring the NS Trade Union Act into line with other Provinces.

Choice of Arbitrator. Under the current legislation, the parties have a chance to agree on an arbitrator; if they can’t then the Board must settle the collective agreement terms. Under Bill No. 19, the Board can direct the parties to arbitration and effectively choose the arbitrator if the parties don’t agree on the choice of an arbitrator. Either party can still ask that the Board itself settle the agreement terms.

Decertification. Under Bill No. 19, an application for decertification has priority over an application to settle the terms of a first collective agreement.

Job Action. Bill No. 19 still requires that job action (strike or lockout) end if a party applies for first contract arbitration. It adds the restriction that neither employers nor unions can take any job action once the first contract arbitration process has started.

Increased Flexibility. Bill No. 19 removes a number of time limitations for steps in the current process – and effectively gives conciliation officers and the Board greater flexibility to encourage and allow for free collective bargaining between the parties.

Effective Date. Bill No. 19 will only come into effect once it’s passed and an effective date is set.

Click here to read Bill No. 19.

Watch for updates on this legislative development from McInnes Cooper’s Labour and Employment Team.

Please contact your McInnes Cooper lawyer or any member of our McInnes Cooper Labour and Employment Team to discuss this topic or any other legal issue.

McInnes Cooper has prepared this document for information only; it is not intended to be legal advice. You should consult McInnes Cooper about your unique circumstances before acting on this information. McInnes Cooper excludes all liability for anything contained in this document and any use you make of it.

© McInnes Cooper, 2013. All rights reserved. McInnes Cooper owns the copyright in this document. You may reproduce and distribute this document in its entirety as long as you do not alter the form or the content and you give McInnes Cooper credit for it. You must obtain McInnes Cooper’s consent for any other form of reproduction or distribution. Click here to request our consent.

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