Bill 225 2009

An Act to resolve the labour dispute between DriveTest and United Steelworkers, Local 9511

Preamble

DriveTest and United Steelworkers, Local 9511 were parties to a collective agreement that has expired. The union has been on strike since August 23, 2009.

The parties have engaged in collective bargaining for a new collective agreement, but have failed to resolve their dispute. Negotiations have reached an impasse and the parties are clearly deadlocked.

The employer is the only body that conducts the examinations that applicants must pass in order to obtain a driver's licence under the Highway Traffic Act. As a result, no applicants have been able to obtain driver's licences during the strike and the economy of the Province has been disrupted. The public interest and welfare requires that a dispute resolution mechanism be provided to settle all matters in dispute between the parties.

Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

Interpretation and Application

Definitions

   1.  (1)  In this Act,

"arbitrator" means an arbitrator appointed under section 10 for the purposes of this Act; ("arbitre")

"bargaining agent" means the United Steelworkers, Local 9511; ("agent négociateur")

"employees" means the employees of the employer who are represented by the bargaining agent; ("employés")

"employer" means Serco DES Inc. carrying on business as DriveTest; ("employeur")

"Minister" means the Minister of Labour; ("ministre")

"new collective agreement" means a collective agreement executed after the day this Act receives Royal Assent that applies to the employees in the bargaining unit represented by the bargaining agent; ("nouvelle convention collective")

"parties", when used in relation to a dispute between the employer and the bargaining agent, means the employer and the bargaining agent. ("parties")

Labour relations expressions

   (2)  Expressions used in this Act have the same meaning as in the Labour Relations Act, 1995, unless the context requires otherwise.

Application of Act

   2.  (1)  This Act applies to the employer, the bargaining agent and the employees that the bargaining agent represents if the employer and the bargaining agent have not executed a collective agreement after November 23, 2009 and before the day on which this Act receives Royal Assent.

Application of Labour Relations Act, 1995

   (2)  Except as modified by this Act, the Labour Relations Act, 1995 applies to the employer, the bargaining agent and the employees.

Conflict

   (3)  In the event of a conflict between this Act and the Labour Relations Act, 1995, this Act prevails.

Strikes and Lock-outs

Termination of lock-out

   3.  (1)  As soon as this Act receives Royal Assent, the employer shall,

  (a)  terminate any lock-out of employees that is in effect immediately before this Act receives Royal Assent; and

  (b)  operate and continue to operate its undertakings.

Termination of strike

   (2)  As soon as this Act receives Royal Assent, the bargaining agent shall terminate any strike by employees that it represents that is in effect immediately before this Act receives Royal Assent.

Same

   (3)  As soon as this Act receives Royal Assent, each employee shall terminate any strike that is in effect before this Act receives Royal Assent and shall, without delay, resume the performance of the duties of his or her employment or shall continue performing them, as the case may be.

Exception

   (4)  Subsection (3) does not preclude an employee from not reporting to work and performing his or her duties for reasons of his or her ill health or by mutual consent of the employee and the employer.

Prohibition re strike

   4.  (1)  Subject to section 6, no employee shall strike and no person or trade union shall call or authorize or threaten to call or authorize a strike by any employees.

Same

   (2)  Subject to section 6, no officer, official or agent of a trade union shall counsel, procure, support or encourage a strike by any employees.

Prohibition re lock-out

   5.  (1)  Subject to section 6, the employer shall not lock out or threaten to lock out any employees.

Same

   (2)  Subject to section 6, no officer, official or agent of the employer shall counsel, procure, support or encourage a lock-out of any employees.

Strike or lock-out after new collective agreement

   6.  After a new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent is executed by the parties, the Labour Relations Act, 1995 governs the right of those employees to strike and the right of the employer to lock out those employees.

Deeming provision:  unlawful strike or lock-out

   7.  A strike or lock-out in contravention of section 3, 4 or 5 shall be deemed to be an unlawful strike or lock-out for the purposes of the Labour Relations Act, 1995.

Offence

   8.  (1)  A person, including the employer, or a trade union who contravenes or fails to comply with section 3, 4 or 5 is guilty of an offence and on conviction is liable,

  (a)  in the case of an individual, to a fine of not more than $3,000; and

  (b)  in any other case, to a fine of not more than $50,000.

Continuing offence

   (2)  Each day of a contravention or failure to comply constitutes a separate offence.

Related matters

   (3)  Subsection 104 (3) and sections 105, 106 and 107 of the Labour Relations Act, 1995 apply, with necessary modifications, with respect to an offence under this section.

Terms of employment

   9.  Until a new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent is executed by the parties, the terms and conditions of employment that applied with respect to those employees on the day before the first day on which it became lawful for any employee in the bargaining unit to strike continue to apply.

Arbitration

Appointment of arbitrator

   10.  (1)  If the parties have not executed a new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent, the employer and the bargaining agent may, by unanimous agreement, appoint one person as an arbitrator.

Mandatory appointment

   (2)  If no appointment is made under subsection (1) within five days of this Act receiving Royal Assent, the Minister shall forthwith appoint one person as an arbitrator and notify the parties of the name and address of the person appointed.

Replacement

   (3)  If an arbitrator appointed under this section is unable or unwilling to perform his or her duties so as to make an award, the Minister shall forthwith appoint a new arbitrator and the arbitration process shall begin anew.

Minister's power

   (4)  In making an appointment under this section, the Minister may appoint as an arbitrator a person who the Minister considers appropriate.

No review

   (5)  It is conclusively presumed that the appointment of an arbitrator made under this section is properly made, and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator's proceedings.

Notice, matters agreed on

   11.  (1)  As soon as possible after the arbitrator is appointed, but in any event no later than seven days after the appointment, the parties shall give the arbitrator written notice of the matters on which they reached agreement before the appointment.

Same

   (2)  The parties may at any time give the arbitrator written notice of the matters on which they reach agreement after the appointment of an arbitrator.

Arbitration

   12.  (1)  Immediately on giving the notice under subsection 11 (1), the parties shall be deemed to have referred to the arbitrator, with respect to the bargaining unit for which no new collective agreement has been executed, all matters remaining in dispute that may be provided for in that collective agreement.

Jurisdiction of arbitrator

   (2)  The arbitrator has exclusive jurisdiction to determine all matters that the arbitrator considers necessary to conclude a new collective agreement with respect to the employees in the bargaining unit.

Same

   (3)  The arbitrator remains seized of and may deal with all matters within the arbitrator's jurisdiction until the new collective agreement with respect to the employees in the bargaining unit is executed.

Notice of matters in dispute

   (4)  Within seven days after beginning the arbitration or within a greater time period that the Minister specifies, the arbitrator shall determine which matters remain in dispute and give written notice of the determination to the parties.

Duty to submit final offer

   (5)  Within the time and in the manner that the arbitrator specifies, each of the parties shall submit to the arbitrator a final offer in respect of the matters remaining in dispute, as specified in the notice mentioned in subsection (4), and proposed wording for a new collective agreement to implement the offer.

Time limits

   (6)  The arbitrator shall make all awards under this Act within 60 days after receiving the notice under subsection 11 (1).

Extensions

   (7)  The Minister may extend the time period specified in subsection (6) either before or after it expires.

New collective agreement concluded by parties

   (8)  If the parties execute a new collective agreement with respect to the employees in the bargaining unit, they shall notify the arbitrator of the fact and the arbitration proceeding with respect to the bargaining unit is thereby terminated.

Procedure

   13.  The arbitrator shall determine the procedure for the arbitration proceeding but shall permit the parties to present evidence and make submissions.

Powers of arbitrator

   14.  (1)  Clauses 48 (12) (a) to (i) of the Labour Relations Act, 1995 apply, with necessary modifications, to proceedings of the arbitrator and to his or her decisions.

Non-application of certain Acts

   (2)  The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply to proceedings of the arbitrator or to his or her decisions.

Award of arbitrator

   15.  (1)  An award by the arbitrator under this Act with respect to the employees in the bargaining unit represented by the bargaining agent shall address all the matters that the arbitrator considers necessary to conclude a new collective agreement with respect to those employees.

Criteria

   (2)  In making an award, the arbitrator shall take into consideration all factors that he or she considers relevant, including the following criteria:

    1.  The employer's ability to pay in light of its fiscal situation.

    2.  The extent to which services may have to be reduced, in light of the award, if current taxation levels are not increased.

    3.  The economic situation in Ontario.

    4.  A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment. 

    5.  The employer's ability to attract and retain qualified employees.

    6.  The purposes of the Public Sector Dispute Resolution Act, 1997.

Expiry of new collective agreement

   (3)  Each award shall specify that the new collective agreement expires on December 31, 2011.

Retroactive alteration of terms of employment

   (4)  Nothing in section 9 precludes the arbitrator from making an award that provides for the retroactive alteration of one or more terms and conditions of employment, to one or more dates after December 31, 2008.

Effect of award

   16.  An award of an arbitrator under this Act relating to a new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent is final and binding on the parties and on those employees.

Costs

   17.  The employer shall pay one-half of the fees and expenses of the arbitrator and the bargaining agent shall pay the other half.

Execution of New Collective Agreement

Execution of new collective agreement

   18.  (1)  Within seven days after the arbitrator makes an award, the parties shall prepare and execute documents giving effect to the award.

Same

   (2)  The documents required by subsection (1) constitute the new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent.

Extension

   (3)  The arbitrator may extend the period mentioned in subsection (1), but the extended period shall end no later than 30 days after the arbitrator made the award.

Preparation by arbitrator

   (4)  If the parties do not prepare and execute the documents as required under subsection (1), the arbitrator shall prepare the necessary documents and give them to the parties for execution.

Failure to execute

   (5)  If either party fails to execute the documents prepared by the arbitrator within seven days after receiving them, the documents come into force as though they had been executed by the parties and those documents constitute the new collective agreement with respect to the employees in the bargaining unit represented by the bargaining agent.

Repeal, Commencement and Short Title

Repeal

   19.  This Act is repealed on a day to be named by proclamation of the Lieutenant Governor.

Commencement

   20.  This Act comes into force on the day it receives Royal Assent.

Short title

   21.  The short title of this Act is the DriveTest Labour Dispute Resolution Act, 2009.

 

EXPLANATORY NOTE

The Bill addresses the labour dispute between DriveTest and United Steelworkers, Local 9511.  It requires the termination of any strike or lock-out and provides a mechanism for achieving a new collective agreement.