Bill 246 2010

An Act to resolve public transit services labour disputes without strikes or lock-outs

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

Definitions

   1.  (1)  In this Act,

"bargaining agent" means any bargaining agent described in subsection 2 (2); ("agent négociateur")

"Board" means the Ontario Labour Relations Board; ("Commission")

"collective agreement" means an agreement in writing between an employer and a bargaining agent containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the bargaining agent or the employees; ("convention collective")

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

"employer" means any employer described in subsection 2 (1); ("employeur")

"lock-out" has the same meaning as in the Labour Relations Act, 1995; ("lock-out")

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

"parties", when used in relation to a dispute, a mediation-arbitration proceeding dealing with the dispute or a collective agreement between the employer and a bargaining agent, means the employer and that bargaining agent; ("parties")

"public transit service" means any service for which a fare is charged for transporting the public by vehicles operated by or on behalf of the Province of Ontario, a municipality or a local board, or under an agreement with the Province of Ontario, a municipality or a local board; ("service de transport en commun")

"strike" has the same meaning as in the Labour Relations Act, 1995; ("grève")

"vehicle" includes transportation facilities for the physically disabled, but does not include,

  (a)  vehicles and marine vessels used for sightseeing tours,

  (b)  buses used to transport pupils, including buses owned and operated by, or operated under a contract with, a school board, private school or charitable organization,

   (c)  buses owned and operated by a corporation or organization solely for its own purposes without compensation for transportation,

  (d)  taxicabs,

  (e)  railway systems of railway companies incorporated under federal or provincial statutes,

    (f)  ferries,

  (g)  aviation systems, or

   (h)  ambulances. ("véhicule")

Interpretation

   (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, employers

   2.  (1)  This Act applies to the following employers:

    1.  Toronto Transit Commission.

    2.  Any other employer that,

            i.  operates a public transit service, and

           ii.  is prescribed by a regulation made under section 13.

Same, bargaining agents and employees

   (2)  This Act applies to the following bargaining agents and to the employees that are represented by the bargaining agents:

    1.  Local 113, Amalgamated Transit Union.

    2.  Lodge 235, International Association of Machinists and Aerospace Workers.

    3.  Canadian Union of Public Employees, Local 2.

    4.  Any other bargaining agent that is prescribed by a regulation made under section 13.

Application of Labour Relations Act, 1995

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

Conflict

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

Strike and lock-outs

   3.  Despite anything in the Labour Relations Act, 1995, no employee shall strike and no employer shall lock out any employee.

Notice of no collective agreement

   4.  (1)  If a conciliation officer appointed under section 18 of the Labour Relations Act, 1995 is unable to effect a collective agreement within the time allowed under section 20 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement, and sections 19 and 21 of that Act shall not apply.

Reference to OLRB

   (2)  The Minister may refer to the Board any question which in his or her opinion relates to the exercise of his or her power under subsection (1) and the Board shall report its decision on the question.

Arbitration

   5.  Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters remaining in dispute between the parties shall be decided by arbitration in accordance with this Act.

Appointment of single arbitrator

   6.  (1)  Where the parties agree to have the matters in dispute between them decided by a single arbitrator, they shall, within the time set out in subsection 7 (1), jointly appoint a person who agreed to act.

Single arbitrator's powers

   (2)  The person appointed under subsection (1) shall constitute the board of arbitration for the purposes of this Act and he or she shall have the powers and duties of the chair of a board of arbitration.

Notice to Minister

   (3)  As soon as the parties appoint a person to act as a single arbitrator, they shall notify the Minister of the name and address of the person appointed.

Appointment of board of arbitration

   7.  (1)  Within seven days after the day upon which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, each of the parties shall appoint to a board of arbitration a member who has agreed to act.

Extension of time

   (2)  The parties, by a mutual agreement in writing, may extend the period of seven days mentioned in subsection (1) for one further period of seven days.

Failure to appoint member

   (3)  Where a party fails to appoint a member of a board of arbitration within the period or periods mentioned in subsection (1) or (2), the Minister, upon the written request of either of the parties, shall appoint such member.

Third member

   (4)  Within 10 days after the day on which the second of the members was appointed, the two members appointed by or on behalf of the parties shall appoint a third member who has agreed to act, and such third member shall be the chair.

Failure to appoint third member

   (5)  Where the two members appointed by or on behalf of the parties fail within 10 days after the appointment of the second of them to agree upon the third member, notice of such failure shall be given forthwith to the Minister by the parties, the two members or either of them and the Minister shall appoint as a third member a person who is, in the opinion of the Minister, qualified to act.

Notice of appointment by party

   (6)  As soon as one of the parties appoints a member to a board of arbitration, that party shall notify the other party and the Minister of the name and address of the member appointed.

Notice of appointment by members

   (7)  As soon as the two members appoint a third member, they shall notify the Minister of the name and address of the third member appointed.

Selection of method

   (8)  If the chair of the board of arbitration was appointed by the Minister, subject to subsections (9) to (11), the Minister shall select the method of arbitration and shall advise the chair of the board of arbitration of the selection.

Same, mediation-arbitration

   (9)  The method selected shall be mediation-arbitration unless the Minister is of the view that another method is more appropriate.

Same, final offer selection

   (10)  The method selected shall not be final offer selection without mediation.

Same, mediation-final offer selection

   (11)  The method selected shall not be mediation-final offer selection unless the Minister in his or her sole discretion selects that method because he or she is of the view that it is the most appropriate method having regard to the nature of the dispute.

Vacancies

   (12)  If a person ceases to be a member of a board of arbitration by reason of resignation, death or otherwise before it has completed its work, the Minister shall appoint a member in his or her place after consulting the party whose point of view was represented by such person.

Replacement of member

   (13)  If, in the opinion of the Minister, a member of a board of arbitration has failed to enter on or to carry on his or her duties so as to enable it to render a decision within the time set out in subsection 10 (5) or within the time extended under subsection 10 (6), the Minister may appoint a member in his or her place after consulting the party whose point of view was represented by such person.

Replacement of chair

   (14)  If the chair of a board of arbitration is unable to enter on or to carry on his or her duties so as to enable it to render a decision within the time set out in subsection 10 (5) or within the time extended under subsection 10 (6), the Minister may appoint a person to act as chair in his or her place.

Where single arbitrator unable to act

   (15)  If the person appointed jointly by the parties as a single arbitrator dies before completing his or her work or is unable to enter on or to carry on his or her duties so as to enable him or her to render a decision within the time set out in subsection 10 (5) or within the time extended under subsection 10 (6), the Minister may, upon notice or complaint to him or her by either of the parties and after consulting the parties, inform the parties in writing that the arbitrator is unable to enter on or to carry on his or her duties and the provisions of this section relating to the appointment of a board of arbitration shall thereupon apply with necessary modifications.

Same

   (16)  No person shall be appointed a member of a board of arbitration under this Act who has any pecuniary interest in the matters coming before it or who is acting or has, within a period of six months preceding the date of his or her appointment, acted as solicitor, counsel or agent of either of the parties.

Time and place of hearings

   (17)  Subject to subsection (18), the chair of the board of arbitration shall fix the time and place of the first or any subsequent hearing and shall give notice thereof to the Minister and the Minister shall notify the parties and the members of the board of arbitration thereof.

When hearings commence

   (18)  The board of arbitration shall hold the first hearing within 30 days after the last (or only) member of the board is appointed.

Exception

   (19)  If the method of arbitration selected by the Minister under subsection (8) is mediation-arbitration or mediation-final offer selection, the time limit set out in subsection (18) does not apply in respect of the first hearing but applies instead, with necessary modifications, in respect of the commencement of mediation.

Failure of member to attend

   (20)  Where a member of a board of arbitration appointed by a party or by the Minister is unable to attend the first hearing at the time and place fixed by the chair, the party shall, upon the request in writing of the chair, appoint a new member in place of such member and where such appointment is not made within five days of the date of the request, the Minister shall, upon the written request of the chair, appoint a new member in place of such member.

Order to expedite proceedings

   (21)  Where a board of arbitration has been established, the chair shall keep the Minister advised of the progress of the arbitration and where the Minister is advised that the board has failed to render a decision within the time set out in subsection 10 (5) or within the time extended under subsection 10 (6), the Minister may, after consulting the parties and the board, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be rendered within a reasonable time.

Procedure

   (22)  Subject to the other provisions of this section, a board of arbitration shall determine its own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.

Same

   (23)  If the members of a board of arbitration are unable to agree among themselves on matters of procedure or as to the admissibility of evidence, the decision of the chair governs.

Time for submission of information

   (24)  If the method of arbitration selected by the Minister under subsection (8) is mediation-arbitration or mediation-final offer selection, the chair of the board of arbitration may, after consulting with the parties, set a date after which a party may not submit information to the board unless,

  (a)  the information was not available prior to the date;

  (b)  the chair permits the submission of the information; and

   (c)  the other party is given an opportunity to make submissions concerning the information.

Decision

   (25)  The decision of a majority of the members of a board of arbitration is the decision of the board, but, if there is no majority, the decision of the chair is the decision of the board.

Notice of agreement to recommence

   (26)  If any member of the board of arbitration was appointed by the Minister, the parties may, at any time before the arbitrator or board renders a decision, jointly serve written notice on the Minister that they have agreed that the arbitration should be recommenced before a different board of arbitration.

Termination of appointments

   (27)  If notice is served on the Minister under subsection (26), the appointments of all the members of the board of arbitration are terminated.

Effective date of terminations

   (28)  The terminations are effective on the day the Minister is served with the notice.

Obligation to appoint

   (29)  Within seven days after the day the Minister is served with the notice, the parties shall jointly appoint, under subsection 6 (1), a person who agreed to act or shall each appoint, under subsection (1) of this section, a member who has agreed to act and section 6 and this section apply with respect to such appointments.

Powers

   (30)  The chair and the other members of a board of arbitration established under this Act have, respectively, all the powers of a chair and the members of a board of arbitration under the Labour Relations Act, 1995.

Appointment or proceedings of board not subject to review

   8.  Where a person has been appointed as a single arbitrator or the three members have been appointed to a board of arbitration, it shall be presumed conclusively that the board has been established in accordance with this Act and no application shall be made, taken or heard for judicial review or to question the establishment of the board or the appointment of the member or members, or to review, prohibit or restrain any of its proceedings.

Single arbitration of several disputes

   9.  (1)  Where there are matters in dispute between parties to be decided by more than one arbitration in accordance with this Act, the parties may agree in writing that the matters in dispute shall be decided by one board of arbitration.

Powers of board

   (2)  In an arbitration to which this section applies, the board may, in addition to the powers conferred upon a board of arbitration by this Act,

  (a)  make a decision on matters of common dispute between all of the parties; and

  (b)  refer matters of particular dispute to the parties concerned for further bargaining.

Same

   (3)  Where matters of particular dispute are not resolved by further collective bargaining under clause (2) (b), the board shall decide the matters.

Duty of board

   10.  (1)  The board of arbitration shall examine into and decide on matters that are in dispute and any other matters that appear to the board necessary to be decided in order to conclude a collective agreement between the parties, but the board shall not decide any matters that come within the jurisdiction of the Board.

Criteria

   (2)  In making a decision, the board of arbitration shall take into consideration all factors the board 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 decision, if current funding and taxation levels are not increased.

    3.  The economic situation in Ontario and in the municipality.

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

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

Restriction

   (3)  Nothing in subsection (2) affects the powers of the board of arbitration.

Board to remain seized of matters

   (4)  The board of arbitration shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.

Time for decision

   (5)  The board of arbitration shall give a decision within 90 days after the last (or only) member of the board is appointed.

Extension

   (6)  The parties may agree to extend the time described in subsection (5), either before or after the time has passed.

Remuneration and expenses

   (7)  The remuneration and expenses of the members of a board of arbitration shall be paid as follows:

    1.  A party shall pay the remuneration and expenses of a member appointed by or on behalf of the party.

    2.  Each party shall pay one-half of the chair's remuneration and expenses.

Enforcement of arbitration decisions

   (8)  Where a party or employee has failed to comply with any of the terms of the decision of an arbitration board, any party or employee affected by the decision may file in the Superior Court of Justice a copy of the decision, exclusive of the reasons therefor, whereupon the decision shall be entered in the same way as a judgment or order of that court and is enforceable as such.

Non-application

   (9)  The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply with respect to an arbitration under this Act.

Where agreement reached

   11.  (1)  Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties agree on all the matters to be included in a collective agreement, they shall put them in writing and shall execute the document, and thereupon it constitutes a collective agreement under the Labour Relations Act, 1995.

Failure to make agreement

   (2)  If the parties fail to put the terms of all the matters agreed upon by them in writing or if having put the terms of their agreement in writing either of them fails to execute the document within seven days after it was executed by the other of them, they shall be deemed not to have made a collective agreement and the provisions of sections 4 to 10 apply, with necessary modifications.

Decision of board

   (3)  Where, during the bargaining under this Act or during the proceedings before the board of arbitration, the parties have agreed upon some matters to be included in the collective agreement and have notified the board in writing of the matters agreed upon, the decision of the board shall be confined to the matters not agreed upon by the parties and to such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

Same

   (4)  Where the parties have not notified the board of arbitration in writing that, during the bargaining under this Act or during the proceedings before the board of arbitration, they have agreed upon some matters to be included in the collective agreement, the board shall decide all matters in dispute and such other matters that appear to the board necessary to be decided to conclude a collective agreement between the parties.

Execution of agreement

   (5)  Within five days of the date of the decision of the board of arbitration or such longer period as may be agreed upon in writing by the parties, the parties shall prepare and execute a document giving effect to the decision of the board and any agreement of the parties, and the document thereupon constitutes a collective agreement under the Labour Relations Act, 1995.

Preparation of agreement by board

   (6)  If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the chair of the board in writing forthwith, and the board shall prepare a document in the form of a collective agreement giving effect to the decision of the board and any agreement of the parties and submit the document to the parties for execution.

Failure to execute agreement

   (7)  If the parties or either of them fail to execute the document prepared by the board within a period of five days from the day of its submission by the board to them, the document shall come into effect as though it had been executed by the parties and the document thereupon constitutes a collective agreement under the Labour Relations Act, 1995.

Delegation

   12.  (1)  The Minister may delegate in writing to any person the Minister's power to make an appointment, order or direction under this Act.

Proof of appointment

   (2)  An appointment, an order or a direction made under this Act that purports to be signed by or on behalf of the Minister shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or the position of the person appearing to have signed it.

Regulations, Lieutenant Governor in Council

   13.  The Lieutenant Governor in Council may make regulations prescribing employers and bargaining agents for the purposes of paragraph 2 of subsection 2 (1) and paragraph 4 of subsection 2 (2).

Regulations, Minister

   14.  The Minister may make regulations respecting transitional matters that, in his or her opinion, are necessary or desirable to facilitate the implementation of this Act.

Commencement

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

Short title

   16.  The short title of this Act is the Essential Public Transit Services Act, 2010.

 

EXPLANATORY NOTE

The Bill prohibits strikes and lock-outs in connection with labour disputes between the Toronto Transit Commission and its employees, and provides a mechanism to resolve those disputes by arbitration.  The Bill also authorizes the Lieutenant Governor in Council to make regulations extending this regime to any other public transit service.