PART 1Labour Relations (continued)
DIVISION 9Arbitration (continued)
Duty and Powers
Marginal note:Assistance to parties
145 As soon as possible after being established, the arbitration board must endeavour to assist the parties to the dispute in entering into or revising a collective agreement.
146 (1) Except as otherwise provided in this Part, the arbitration board may determine its own procedure, including the date, time and place of its proceedings, but both parties must be given a full opportunity to present evidence and make representations.
Marginal note:Quorum and absence of members
(2) The chairperson of the arbitration board and one other member constitute a quorum in the case of an arbitration board consisting of three members but, in the absence of a member at any proceedings of the board, the other members may not proceed unless the absent member has been given reasonable notice of the proceedings.
147 (1) The arbitration board has all the powers of the Board set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(a) and (d) to (f) of the Federal Public Sector Labour Relations and Employment Board Act.
(2) The arbitration board may authorize any person to exercise any of its powers set out in paragraphs 16(c) and (d) of this Act and paragraphs 20(d) and (e) of the Federal Public Sector Labour Relations and Employment Board Act, and require that person to report to it on the exercise of those powers.
- 2003, c. 22, s. 2 “147”
- 2013, c. 40, s. 371
- 2017, c. 9, s. 56
Making of Arbitral Award
Marginal note:Factors to be considered
148 In the conduct of its proceedings and in making an arbitral award, the arbitration board must take into account the following factors, in addition to any other factors that it considers relevant:
(a) the necessity of attracting competent persons to, and retaining them in, the public service in order to meet the needs of Canadians;
(b) the necessity of offering compensation and other terms and conditions of employment in the public service that are comparable to those of employees in similar occupations in the private and public sectors, including any geographic, industrial or other variations that the arbitration board considers relevant;
(c) the need to maintain appropriate relationships with respect to compensation and other terms and conditions of employment as between different classification levels within an occupation and as between occupations in the public service;
(d) the need to establish compensation and other terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and
(e) the state of the Canadian economy and the Government of Canada’s fiscal circumstances.
- 2003, c. 22, s. 2 “148”
- 2013, c. 40, s. 307
- 2018, c. 24, s. 10
Marginal note:Making of arbitral award
149 (1) The arbitration board must make an arbitral award as soon as feasible in respect of all the matters in dispute that are referred to it.
(1.1) [Repealed, 2018, c. 24, s. 11]
Marginal note:Award to be signed
(2) The arbitral award must be signed by the chairperson of the arbitration board, or by the single member, as the case may be, and a copy must be sent to the Chairperson.
- 2003, c. 22, s. 2 “149”
- 2013, c. 40, s. 309
- 2018, c. 24, s. 11
Marginal note:Award not to require legislative implementation
150 (1) An arbitral award that applies to a bargaining unit — other than a bargaining unit determined under section 238.14 — must not, directly or indirectly, alter or eliminate any existing term or condition of employment, or establish any new term or condition of employment, if
(a) doing so would require the enactment or amendment of any legislation by Parliament, except for the purpose of appropriating money required for the implementation of the term or condition;
(c) the term or condition relates to standards, procedures or processes governing the appointment, appraisal, promotion, deployment, rejection on probation or lay-off of employees;
(d) in the case of a separate agency, the term or condition relates to termination of employment, other than termination of employment for a breach of discipline or misconduct; or
(e) doing so would affect the organization of the public service or the assignment of duties to, and the classification of, positions and persons employed in the public service.
Marginal note:Matters not negotiated
(2) The arbitral award may not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before arbitration was requested.
- 2003, c. 22, s. 2 “150”
- 2017, c. 9, s. 18
Marginal note:Decision of majority
151 (1) If the arbitration board consists of three members, a decision of a majority of the members in respect of the matters in dispute is a decision of the board on those matters and is the arbitral award in respect of those matters.
Marginal note:Decision where majority cannot agree
(2) If a majority of members of the arbitration board cannot agree in respect of the matters in dispute, the decision of the chairperson of the board is the arbitral award in respect of those matters.
Marginal note:Form of award
152 The form of the arbitral award must, wherever possible, permit the award to be
(a) read and interpreted with, or annexed to and published with, a collective agreement dealing with other terms and conditions of employment of the employees in the bargaining unit in respect of which the arbitral award applies; and
(b) incorporated into and implemented by any instrument that may be required to be made by the employer or the relevant bargaining agent in respect of the arbitral award.
Marginal note:Copy sent to parties
153 On receipt of a copy of the arbitral award, the Chairperson must, without delay, send a copy to the parties and may cause the award to be published in any manner that the Chairperson considers appropriate.
Duration and Operation of Arbitral Award
Marginal note:Binding effect
154 Subject to and for the purposes of this Part and Division 1 of Part 2.1, as of the day on which it is made, the arbitral award binds the employer and the bargaining agent that are parties to it and the employees in the bargaining unit in respect of which the bargaining agent has been certified. To the extent that it deals with matters referred to in section 12 of the Financial Administration Act, the arbitral award is also binding, on and after that day, on every deputy head responsible for any portion of the federal public administration that employs employees in the bargaining unit.
- 2003, c. 22, s. 2 “154”
- 2017, c. 9, s. 19
Marginal note:When arbitral award has effect
155 (1) The arbitral award has effect as of the day on which it is made or, subject to subsection (2), any earlier or later day that the arbitration board may determine.
Marginal note:Limitation on retroactive effect
(2) The arbitral award or any of its parts may be given retroactive effect, but not earlier than the day notice to bargain collectively was given.
Marginal note:Effect on previous collective agreement or award
(3) If a provision of an arbitral award is to have retroactive effect, the provision displaces, for the retroactive period specified in the arbitral award, any term or condition of any previous collective agreement or arbitral award with which it is in conflict.
Marginal note:Term of arbitral award
156 (1) The arbitration board must determine the term of the arbitral award and set it out in the arbitral award.
(2) In determining the term of an arbitral award, the arbitration board must take the following into account:
(a) if a collective agreement applicable to the bargaining unit is in force or has been entered into but is not yet in force, the term of that collective agreement; or
(b) if no collective agreement applying to the bargaining unit has been entered into,
(i) the term of any previous collective agreement that applied to the bargaining unit, or
(ii) the term of any other collective agreement that it considers relevant.
Marginal note:Limitation on term
(3) An arbitral award may not be for a term of less than one year or more than two years from the day on which it becomes binding on the parties, unless the arbitration board determines otherwise in any case where paragraph (2)(a) or (b) applies.
Marginal note:Duty to implement provisions of the arbitral award
157 Subject to the appropriation by or under the authority of Parliament of any money that may be required by the employer, the parties must implement the provisions of the arbitral award within 90 days after the day on which the award becomes binding on them or within any longer period that the parties may agree to or that the Board, on application by either party, may set.
Matters Not Dealt With
Marginal note:Reference of matters not dealt with
158 Any party that considers that the arbitration board has failed to deal with a matter in dispute that was referred to arbitration may, within seven days after the day on which the arbitral award is made, refer the matter back to the arbitration board which must then deal with it.
158.1 [Repealed, 2018, c. 24, s. 12]
159 The Board may, on the joint application of both parties to whom an arbitral award applies, amend any provision of the arbitral award if it considers that the amendment is warranted having regard to circumstances that have arisen since the making of the arbitral award, or of which the arbitration board did not have notice when the award was made, or to any other circumstances that the Board considers relevant.
Application of Division
160 This Division applies to the employer and the bargaining agent for a bargaining unit whenever
(a) the process for the resolution of a dispute applicable to the bargaining unit is conciliation; and
(b) the parties have bargained in good faith with a view to entering into a collective agreement, but are unable to reach agreement on a term or condition of employment that may be included in a collective agreement.
- 2003, c. 22, s. 2 “160”
- 2013, c. 40, s. 311(F)
Request for Conciliation
Marginal note:Request for conciliation
161 (1) Either party may, by notice in writing to the Chairperson, request conciliation in respect of any term or condition of employment that may be included in a collective agreement.
Marginal note:Contents of notice
(2) The party requesting conciliation must
(a) specify in the notice the terms or conditions of employment in respect of which it requests conciliation, and its proposals concerning the report to be made in respect of that term or condition; and
(b) annex to the notice a copy of the most recent collective agreement entered into by the parties.
Marginal note:Notice to other party
(3) On receiving the notice, the Chairperson must send a copy to the other party.
Marginal note:Request for conciliation of additional matters
(4) The other party may, within seven days after receiving the copy, by notice in writing to the Chairperson, request conciliation in respect of any other term or condition of employment that may be included in a collective agreement and that remained in dispute when the first request for conciliation was made.
Marginal note:Notice to include proposal
(5) The party making the request under subsection (4) must specify in the notice its proposal concerning the report to be made in respect of the term or condition of employment in respect of which it requests conciliation.
Establishment of Public Interest Commission
Marginal note:Recommendation to establish
162 (1) Subject to subsection (3), on receiving a request for conciliation, the Chairperson must recommend to the Minister that a public interest commission be established for conciliation of the matters in dispute.
(2) The Chairperson may delay recommending the establishment of a public interest commission until satisfied that the party making the request has bargained sufficiently and seriously with respect to the matters in dispute.
(3) If the Chairperson considers, after consultation with each of the parties, that the establishment of a public interest commission is unlikely to assist them in reaching agreement, the Chairperson must, without delay, notify the parties in writing that he or she will not recommend the establishment of such a commission.
Marginal note:Chairperson’s initiative
163 (1) The Chairperson may, on his or her own initiative, recommend to the Minister that a public interest commission be established for the conciliation of a dispute if he or she considers that establishing one might assist the parties in reaching agreement and that the parties are unlikely to reach agreement otherwise.
(2) Before acting under subsection (1), the Chairperson must notify the parties of his or her intention to do so.
164 (1) The public interest commission consists of either a single member appointed in accordance with section 166 or, subject to subsection (2), three members, appointed in accordance with section 167.
Marginal note:Request for commission of three members
(2) The public interest commission is to consist of three members only if one of the parties requests it.
- 2003, c. 22, s. 2 “164”
- 2013, c. 40, s. 312
- 2018, c. 24, s. 13
165 (1) For the purposes of sections 166 and 167, the Chairperson must, after consultation with the parties, prepare a list of names of persons who could be selected to act as a public interest commission that consists of a single member, or as the chairperson of a public interest commission that consists of three members.
(2) The list must set out
(a) the names of all eligible persons jointly recommended by the parties; and
(b) if the Chairperson is of the opinion that the parties have not jointly recommended a sufficient number of persons, the names of any other eligible persons whom the Chairperson considers suitable.
- 2003, c. 22, s. 2 “165”
- 2013, c. 40, s. 313
- 2018, c. 24, s. 14
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