Bill 44 2013

An Act to deal with arbitration in the public sector

Note: This Act amends or repeals more than one Act.  For the legislative history of these Acts, see the Table of Consolidated Public Statutes – Detailed Legislative History at www.e-Laws.gov.on.ca.

CONTENTS

1.	Definitions
2.	Application of this Act
3.	Voluntary arbitration
4.	First agreement arbitration
5.	Roster of arbitrators
6.	Appointment of arbitrator
7.	Pre-arbitration conference
8.	Arbitration criteria, municipal sector
9.	Arbitration criteria, rest of public sector
10.	Capacity to Pay Division
11.	Reasons for decision or award
12.	Scope of award
13.	Regulations
14.	Transition
15.	Repeal of section 10
16.	Ambulance Services Collective Bargaining Act, 2001
17.	Crown Employees Collective Bargaining Act, 1993
18.	Education Act
19.	Fire Protection and Prevention Act, 1997
20.	Hospital Labour Disputes Arbitration Act
21.	Ontario Provincial Police Collective Bargaining Act, 2006
22.	Police Services Act
23.	Provincial Schools Negotiations Act
24.	Public Sector Dispute Resolution Act, 1997
25.	Public Sector Labour Relations Transition Act, 1997
26.	Toronto Transit Commission Labour Disputes Resolution Act, 2011
27.	Commencement
28.	Short title

______________

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,

"employee" includes a director or officer of an employer, and a holder of office elected or appointed under the authority of an Act of Ontario; ("employé")

"employer" means,

  (a)  an employer in the public sector that does not carry on its activities for the purpose of gain or profit to its members or shareholders, and includes the Crown and a body to which a person is elected or appointed under the authority of an Act of Ontario,

  (b)  Hydro One Inc. and each of its subsidiaries, and

   (c)  Ontario Power Generation Inc. and each of its subsidiaries; ("employeur")

"Hydro One Inc." has the same meaning as in the Electricity Act, 1998; ("Hydro One Inc.")

"Minister" means the Minister of Labour or any other member of the Executive Council to whom the responsibility for the administration of this Act is assigned or transferred under the Executive Council Act, except if the context specifically provides or requires otherwise; ("ministre")

"Ontario Power Generation Inc." has the same meaning as in the Electricity Act, 1998; ("Ontario Power Generation Inc.")

"public sector" means,

  (a)  the Crown in right of Ontario, every agency thereof, and every authority, board, commission, corporation, office or organization of persons, a majority of whose directors, members or officers are appointed or chosen by or under the authority of the Lieutenant Governor in Council or a member of the Executive Council,

  (b)  the corporation of every municipality in Ontario,

   (c)  subject to the Government funding condition in subsection (2), every local board as defined by the Municipal Affairs Act and every authority, board, commission, corporation, office or organization of persons, some or all of whose members, directors or officers are appointed or chosen by or under the authority of the council of the corporation of a municipality in Ontario,

  (d)  every board as defined in the Education Act,

  (e)  every university in Ontario and every college of applied arts and technology and post-secondary institution in Ontario whether or not affiliated with a university, the enrolments of which are counted for purposes of calculating annual operating grants entitlements,

    (f)  every hospital referred to in the list of hospitals and their grades and classifications maintained by the Minister of Health and Long-Term Care under the Public Hospitals Act and every private hospital operated under the authority of a licence issued under the Private Hospitals Act,

  (g)  subject to the Government funding condition in subsection (2), every corporation with share capital, at least 90 per cent of the issued shares of which are beneficially held by or for an employer or employers described in clauses (a) to (f), and every wholly-owned subsidiary thereof,

   (h)  subject to the Government funding condition in subsection (2), every corporation without share capital, the majority of whose members, directors or officers are members of, or are appointed or chosen by or under the authority of, an employer or employers described in clauses (a) to (f), and every wholly-owned subsidiary thereof,

    (i)  every board of health under the Health Protection and Promotion Act,

    (j)  the Office of the Lieutenant Governor of Ontario, the Office of the Assembly, members of the Assembly and the offices of persons appointed on an address of the Assembly,

   (k)  any corporation, entity, person or organization of persons to which the Government funding condition in subsection (2) applies,

    (l)  any authority, board, commission, corporation, office, person or organization of persons, or any class of authorities, boards, commissions, corporations, offices, persons or organizations of persons, prescribed as an employer by the regulations made under this Act,

(m)  Hydro One Inc. and each of its subsidiaries, and

   (n)  Ontario Power Generation Inc. and each of its subsidiaries; ("secteur public")

"roster of arbitrators" means the roster of persons described in subsection 5 (1). ("tableau des arbitres")

Funding received from Government

   (2)  A body referred to in clause (c), (g), (h) or (k) of the definition of "public sector" in subsection (1) is included in the definition of "public sector" in a year only if the body received funding from the Government of Ontario in that year of an amount that is at least equal to,

  (a)  $1,000,000; or

  (b)  10 per cent of the body's gross revenues for the year if that percentage is $120,000 or more.

Proof of percentage of funding

   (3)  The Management Board of Cabinet may require an officer, director or employee of a body to provide evidence satisfactory to the Secretary of the Management Board of Cabinet that the funding received from the Government of Ontario by the body in a year is less than 10 per cent of the body's gross revenues for the year, if, for the year,

  (a)  the body received funding from the Government of Ontario of at least $120,000 but less than $1,000,000; and

  (b)  the body would be an employer to which this Act applies if its funding from the Government of Ontario for the year were at least 10 per cent of its gross revenues for the year.

Failure to provide evidence

   (4)  If satisfactory evidence is not provided under subsection (3), the Management Board of Cabinet may require that payments from a ministry of the Crown to fund any activity or program of that body be withheld, and section 5 of the Public Sector Salary Disclosure Act, 1996 applies, with necessary modifications, in respect of the payment withheld.

When government funding condition not applicable

   (5)  If an employer described in clause (c), (g), (h) or (k) of the definition of "public sector" in subsection (1) is also described in another clause of that definition, the employer is in the public sector whether or not the government funding condition in subsection (2) is met.

Application of this Act

   2.  This Act applies with respect to an arbitration settling all or part of a collective agreement for employees of an employer if the Labour Relations Act, 1995 applies with respect to the collective agreement but the arbitration is not an arbitration under any of the following provisions:

    1.  Section 20 of the Ambulance Services Collective Bargaining Act, 2001.

    2.  Section 4 or 5 of the Crown Employees Collective Bargaining Act, 1993.

    3.  Section 277.9.2 or 277.9.3 of the Education Act.

    4.  Section 50.2 of the Fire Protection and Prevention Act, 1997.

    5.  Section 6 of the Hospital Labour Disputes Arbitration Act.

    6.  Section 6 of the Ontario Provincial Police Collective Bargaining Act, 2006.

    7.  Section 122 of the Police Services Act.

    8.  Section 6.2 or 6.3 of the Provincial Schools Negotiations Act.

    9.  Section 32 of the Public Sector Labour Relations Transition Act, 1997.

  10.  Section 5 of the Toronto Transit Commission Labour Disputes Resolution Act, 2011.

Voluntary arbitration

   3.  (1)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to an arbitrator appointed under section 6 and the parties shall notify the Minister.

Applicable provisions

   (2)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the arbitrator.

First agreement arbitration

   4.  (1)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister.

Arbitrator

   (2)  An arbitrator appointed under section 6 shall conduct the arbitration.

Non-applicable provisions

   (3)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to the arbitration.

Applicable provisions

   (4)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act and subsections 48 (12) and (18) of the Labour Relations Act, 1995 apply, with necessary modifications, to the arbitrator.

Roster of arbitrators

   5.  (1)  In accordance with the process specified by the regulations made under this Act, the Minister shall establish a roster of persons who, in the opinion of the Minister, possess the qualifications prescribed by the regulations made under this Act for being appointed as an arbitrator for an arbitration under section 3 or 4.

Changes to roster

   (2)  In accordance with the process specified by the regulations made under this Act, the Minister may,

  (a)  remove the name of a person from the roster of arbitrators if the Minister is of the opinion that the person ceases to possess the qualifications mentioned in subsection (1); or

  (b)  add the name of a person to the roster of arbitrators if the Minister is of the opinion that the person has acquired the qualifications mentioned in subsection (1).

Appointment of arbitrator

   6.  (1)  Within seven days after the parties have agreed to refer matters to arbitration under subsection 3 (1) or after the Minister receives the copy of an application under subsection 4 (1), as the case may be, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Response of parties

   (2)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (3)  If the parties do not comply with subsection (2), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (4)  If the parties comply with clause (2) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (5)  If the parties comply with clause (2) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (6)  If an arbitrator appointed under subsection (3), (4) or (5) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (2) to (5) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Pre-arbitration conference

   7.  (1)  As soon as practicable after being appointed and before holding any hearing in an arbitration or allowing the parties to the arbitration to make submissions, an arbitrator shall convene a conference of the parties, during which each party shall disclose to the arbitrator and to the other party the issues that the party intends to raise during the arbitration and the evidence that the party intends to present during the arbitration.

Details of disclosure

   (2)  The disclosure shall contain the details that are reasonably necessary to allow the arbitrator and the other party to understand the nature of the issue or the evidence, as the case may be.

Length of conference

   (3)  The arbitrator shall determine the length of the conference which shall terminate no later than 30 days after the arbitrator is appointed.

If no disclosure

   (4)  A party shall not raise any issue or present any evidence in any proceedings in the arbitration after the end of the conference unless the party has disclosed it during the conference in accordance with subsections (1) and (2).

Process binds the parties

   (5)  The arbitrator shall not be entitled to relieve any party of the party's obligations under this section or the restriction described in subsection (4).

Arbitration criteria, municipal sector

   8.  (1)  In making a decision or award, an arbitrator settling all or part of a collective agreement for employees of an employer that is a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006 shall take into account the primary criteria listed in subsection (3) and the secondary criteria listed in subsection (4), in addition to any other criteria provided by law.

Ranking

   (2)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (3)  The primary criteria mentioned in subsection (1) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (4)  The secondary criteria mentioned in subsection (1) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

No tax increase

   (5)  In applying the criteria listed in subsection (3) or (4), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision or award.

Arbitration criteria, rest of public sector

   9.  (1)  In making a decision or award, an arbitrator settling all or part of a collective agreement for employees of an employer that is not a municipality or local board as described in subsection 8 (1) shall take into account the following criteria, in addition to any other criteria provided by law:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (2)  In applying the criteria listed in subsection (1), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision or award.

Capacity to Pay Division

   10.  (1)  The Minister of Finance shall establish a division within the Ministry, to be known in English as the Capacity to Pay Division and in French as Division de la capacité de payer.

Existing resources only

   (2)  The budget and staff of the Capacity to Pay Division shall be drawn only from the resources allocated to the Ministry on or before the day this Act comes into force.

Collection and publication of information

   (3)  The Capacity to Pay Division shall collect and publish information relating to arbitrations settling all or part of collective agreements for employees.

Specific publications

   (4)  Without limiting what else the Capacity to Pay Division may publish, it shall publish the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

    2.  For employees in the public and private sectors, comparisons of the terms and conditions of employment, including remuneration and benefits.

    3.  Information on the criteria set out in subparagraphs 5 i to iv of subsection 9 (1).

    4.  Information on recent arbitration decisions or awards settling all or part of collective agreements for employees of employers in Ontario or similar organizations elsewhere in Canada.

    5.  Information on collective agreements for employees of employers in Ontario or similar organizations elsewhere in Canada.

Filing with Capacity to Pay Division

   (5)  If an arbitrator makes a decision or award settling all or part of a collective agreement for employees of an employer, the arbitrator shall, as soon as possible, file a copy of the decision or award with the Capacity to Pay Division.

Reasons for decision or award

   11.  (1)  Upon making a decision or award, the arbitrator shall provide written reasons to each party.

Same

   (2)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria listed in section 8 or 9, as the case may be, and has done so in accordance with subsections 8 (2) and (5) and 9 (2).

Scope of award

   12.  In making a decision or award, an arbitrator shall not deal with a term or condition of employment that was not the subject of negotiation between the parties to the arbitration during the period before matters were referred to arbitration.

Regulations

   13.  (1)  The Lieutenant Governor in Council may make regulations,

  (a)  doing anything described as prescribed in clause (l) of the definition of "public sector" in subsection 1 (1);

  (b)  specifying the qualifications, including education and professional experience, that persons must possess to be eligible to be appointed to the roster of arbitrators;

   (c)  specifying the process that the Minister shall follow in establishing the roster of arbitrators;

  (d)  in addition to the requirements of this Act, governing the conduct of arbitration hearings by arbitrators and prescribing procedures for them.

Mandatory qualifications for roster of arbitrators

   (2)  The qualifications specified in a regulation made under clause (1) (b) shall include experience in alternate dispute resolution.

Process requirements for roster of arbitrators

   (3)  The process specified in a regulation made under clause (1) (c) shall be based on the principles of fairness to the parties to an arbitration, impartiality, independence from the Minister and respect for taxpayers.

Transition

   14.  This Act does not apply to an arbitration proceeding if the matter subject to arbitration has been referred to arbitration before 90 days after the day this Act comes into force.

Repeal of section 10

   15.  The following apply with respect to section 10:

    1.  Section 10 is repealed on the third anniversary of the day this Act comes into force unless, before that time, the Legislative Assembly passes a resolution that the section should not be repealed.

    2.  If the Assembly passes a resolution that section 10 should not be repealed, the section is repealed on the third anniversary of the passing of that resolution unless, before that time, the Assembly passes another resolution that the section should not be repealed.

    3.  For greater certainty, paragraph 2 applies with respect to all subsequent resolutions of the Assembly that section 10 should not be repealed.

Ambulance Services Collective Bargaining Act, 2001

   16.  (1)  Section 18 of the Ambulance Services Collective Bargaining Act, 2001 is amended by adding the following subsection:

Mediation

   (10.1)  The Board shall not order arbitration under this section unless the parties have conferred with a mediator to attempt to effect a collective agreement.

   (2)  Subsections 20 (1), (2), (3), (4) and (5) of the Act are repealed and the following substituted:

Appointment of arbitrator and selection of method

   (1)  If the Board orders that all matters remaining in dispute be referred to an arbitrator, the Minister shall, within seven days of the issuance of the order, provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (5.1)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (5.2)  If an arbitrator appointed under subsection (4), (5) or (5.1) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (3) to (5.1) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

   (3)  Subsections 21 (1), (2) and (3) of the Act are repealed and the following substituted:

Arbitration

   (1)  The arbitrator shall examine into and decide on matters that are in dispute, but the arbitrator shall not,

  (a)  deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration; or

  (b)  decide any matters that come within the jurisdiction of the Board.

Criteria

   (2)  In making a decision, the arbitrator shall consider:

  (a)  the primary criteria listed in subsection (2.3) and the secondary criteria listed in subsection (2.4), if the employer is a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006; or

  (b)  the criteria listed in subsection (2.5), if the employer is not a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006.

Definition

   (2.1)  In this section,

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Ranking, municipal delivery agent

   (2.2)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (2.3)  The primary criteria mentioned in clause (2) (a) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (2.4)  The secondary criteria mentioned in clause (2) (a) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

Non-municipal delivery agent

   (2.5)  The criteria mentioned in clause (2) (b) are the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (3)  In applying the criteria listed in subsection (2.3), (2.4) or (2.5), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

   (4)  Subsections 21 (6) and (7) of the Act are repealed and the following substituted:

Same

   (6)  Clauses 48 (12) (a) to (i) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the proceedings before the arbitrator and to his or her decision.

Non-application

   (7)  The Arbitration Act, 1991 and the Statutory Powers Procedure Act do not apply to arbitration proceedings under this Act.

   (5)  Subsection 21 (9) of the Act is repealed and the following substituted:

Time for decision

   (9)  The arbitrator shall make a decision within nine months after being appointed.

   (6)  Section 21 of the Act is amended by adding the following subsections:

Reasons

   (10.1)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (10.2)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (2) and has done so in accordance with subsections (2.2) and (2.6).

   (7)  The Act is amended by adding the following section:

Transition

   28.1  (1)  In this section,

"referral date" means the date on which an order made by the Board under clause 18 (8) (d) with respect to a bargaining unit of ambulance workers is deemed to have been released, in accordance with subsection 23 (9).

Same

   (2)  Arbitration proceedings for which the referral date falls before the day section 2 of the Public Sector Capacity to Pay Act, 2013 comes into force shall continue under this Act as it read immediately before that day.

Crown Employees Collective Bargaining Act, 1993

   17.  (1)  Subsections 4 (2), (3), (4), (5), (6), (7) and (8) of the Crown Employees Collective Bargaining Act, 1993 are repealed and the following substituted:

Referral to arbitrator

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to an arbitrator appointed under subsection (4.1), (4.2) or (4.3).

Appointment of arbitrator

   (3)  Within seven days after the parties have agreed to refer matters to arbitration, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (4)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (4.1)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4.2)  If the parties do not comply with subsection (4.1), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (4.3)  If the parties comply with clause (4.1) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (4.4)  If the parties comply with clause (4.1) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (4.5)  If an arbitrator appointed under subsection (4.2), (4.3) or (4.4) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (4.1) to (4.4) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Applicable provisions

   (5)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (1.1) to (1.1.6), (1.3), (1.4), (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

Procedure

   (6)  The arbitrator shall determine his or her own procedure but shall give full opportunity to the parties to present their evidence and make their submissions and section 117 of the Labour Relations Act, 1995 applies to the arbitrator and the arbitrator's decision and proceedings as if he or she were the Board.

Cost of arbitration

   (7)  Each party shall pay one-half of the remuneration and expenses of the arbitrator.

Reference back to arbitrator

   (8)  The arbitrator may, upon application by a party within 10 days after the release of a decision, amend, alter or vary the decision if it is shown to the satisfaction of the arbitrator that he or she failed to deal with any matter in dispute referred to him or her or that an error is apparent on the face of the decision.

   (2)  Subsection 4 (9) of the Act is amended by striking out "or board".

   (3)  Subsection 4 (11) of the Act is amended by striking out "or board of arbitration".

   (4)  Subsection 4 (12) of the Act is repealed and the following substituted:

Scope of arbitration

   (12)  In making a decision, the arbitrator shall not deal with,

  (a)  a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration; or

  (b)  any matters upon which the parties have agreed if the arbitrator is notified in writing of the agreement of the parties on those matters.

   (5)  Subsection 4 (14) of the Act is repealed and the following substituted:

Collective agreement prepared by arbitrator

   (14)  If the parties have not agreed upon the terms of a collective agreement within 30 days after the release of the decision of the arbitrator, the arbitrator shall prepare a document giving effect to the decision and any agreement between the parties about which the arbitrator has been notified.

   (6)  Subsection 4 (15) of the Act is amended by striking out "or board of arbitration".

Education Act

   18.  (1)  The Education Act is amended by adding the following sections:

Definition

   277.9.1  In this section and sections 277.9.2 to 277.9.4,

"Minister" means the Minister of Labour.

Voluntary arbitration

   277.9.2  (1)  Section 40 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Part with the modifications set out in this section.

Referral to arbitrator

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to an arbitrator appointed under section 277.9.4 and the parties shall notify the Minister.

Applicable provisions

   (3)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

First agreement arbitration

   277.9.3  (1)  Section 43 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Part with the modifications set out in this section.

Arbitrator

   (2)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister.

Non-applicable provisions

   (3)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the arbitrator under this section.

Applicable provisions

   (4)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

Appointment of arbitrator

   277.9.4  (1)  Within seven days after the parties have agreed to refer matters to arbitration under subsection 277.9.2 (2) or after the Minister receives the copy of an application under subsection 277.9.3 (2), as the case may be, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (6)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (7)  If an arbitrator appointed under subsection (4), (5) or (6) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (3) to (6) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Arbitration decision

   277.9.5  (1)  In making a decision, the arbitrator shall take into consideration the primary criteria listed in subsection (4) and the secondary criteria listed in subsection (5).

Definition

   (2)  In this section,

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Ranking

   (3)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (4)  The primary criteria mentioned in subsection (1) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (5)  The secondary criteria mentioned in subsection (1) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

No tax increase

   (6)  In applying the criteria listed in subsection (4) or (5), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

Scope of decision

   (7)  In making a decision, the arbitrator shall not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration.

Reasons

   (8)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (9)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (1) and has done so in accordance with subsection (6).

   (2)  Section 277.10 of the Act is amended by striking out "or board of arbitration".

Fire Protection and Prevention Act, 1997

   19.  (1)  Section 50.1 of the Fire Protection and Prevention Act, 1997 is repealed.

   (2)  Subsections 50.2 (1), (2), (3), (4), (5), (6), (7) and (8) of the Act are repealed and the following substituted:

Appointment of arbitrator

   (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, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (6)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (7)  If an arbitrator appointed under subsection (4), (5) or (6) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (3) to (6) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Selection of method

   (8)  Subject to subsections (9) to (11), the Minister shall select the method of arbitration and shall advise the arbitrator of the selection.

   (3)  Subsections 50.2 (12), (13), (14), (15) and (16) of the Act are repealed.

   (4)  Subsections 50.2 (17), (18) and (19) of the Act are repealed and the following substituted:

When hearings commence

   (17)  The arbitrator shall hold the first hearing within 30 days after being appointed.

Exception

   (18)  If the method of arbitration selected by the Minister under subsection (3) is mediation-arbitration or mediation-final offer selection, the time limit set out in subsection (17) does not apply in respect of the first hearing, but applies instead, with necessary modifications, in respect of the commencement of mediation.

   (5)  Subsections 50.2 (20), (21), (22), (23), (24), (25), (26), (27), (28) and (29) of the Act are repealed and the following substituted:

Order to expedite proceedings

   (20)  The arbitrator shall keep the Minister advised of the progress of the arbitration and if the Minister is advised that the arbitrator has failed to make a decision within the time set out in subsection 50.5 (5), the Minister may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be made within a reasonable time.

Procedure

   (21)  Subject to the other provisions of this section, the arbitrator shall determine his or her own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.

Powers

   (22)  The arbitrator has all the powers of a chair and the members of a board of arbitration under the Labour Relations Act, 1995.

   (6)  Section 50.3 of the Act is repealed and the following substituted:

Appointment or proceedings of arbitrator not subject to review

   50.3  If an arbitrator has been appointed, it shall be presumed conclusively that he or she has been appointed in accordance with this Part and no application shall be made, taken or heard for judicial review or to question the appointment or to review, prohibit or restrain any of his or her proceedings.

   (7)  Subsection 50.4 (1) of the Act is amended by striking out "board of arbitration" at the end and substituting "arbitrator".

   (8)  Subsections 50.4 (3) and (4) of the Act are repealed and the following substituted:

Powers of arbitrator

   (3)  In an arbitration to which this section applies, the arbitrator may, in addition to the powers conferred upon an arbitrator by this Part,

  (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

   (4)  If matters of particular dispute are not resolved by further collective bargaining under clause (3) (b), the arbitrator shall decide the matters.

   (9)  Subsections 50.5 (1), (2), (3), (4), (5) and (6) of the Act are repealed and the following substituted:

Duty of arbitrator

   (1)  The arbitrator shall examine into and decide on matters that are in dispute but shall not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration.

Applicable provisions

   (1.1)  Sections 7 and 12 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

Criteria

   (2)  In making a decision, the arbitrator shall consider,

  (a)  the primary criteria listed in subsection (2.3) and the secondary criteria listed in subsection (2.4), if the employer is a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006; or

  (b)  the criteria listed in subsection (2.5), if the employer is not a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006.

Definition

   (2.1)  In this section,

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Ranking, employer is a municipality

   (2.2)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (2.3)  The primary criteria mentioned in clause (2) (a) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (2.4)  The secondary criteria mentioned in clause (2) (a) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

Employer is not a municipality

   (2.5)  The criteria mentioned in clause (2) (b) are the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (3)  In applying the criteria listed in subsection (2.3), (2.4) or (2.5), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

Reasons

   (3.1)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (3.2)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (2) and has done so in accordance with subsections (2.2) and (3).

Arbitrator to remain seized of matters

   (4)  The arbitrator 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 arbitrator shall make a decision within nine months after being appointed.

   (10)  Subsection 50.5 (7) of the Act is repealed and the following substituted:

Cost of arbitration

   (7)  Each party shall pay one-half of the remuneration and expenses of the arbitrator.

   (11)  Subsection 50.5 (8) of the Act is amended by striking out "arbitration board" and substituting "arbitrator".

   (12)  Subsection 50.6 (1) of the Act is amended by striking out "board of arbitration" and substituting "arbitrator".

   (13)  Subsections 50.6 (3), (4), (5), (6) and (7) of the Act are repealed and the following substituted:

Decision of arbitrator

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

Same

   (4)  If the parties have not notified the arbitrator in writing that, during the bargaining under this Part or during the proceedings before the arbitrator, they have agreed upon some matters to be included in the collective agreement, the arbitrator shall decide all matters in dispute and all other matters that appear to the arbitrator 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 arbitrator 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 arbitrator and any agreement of the parties, and the document then constitutes a collective agreement.

Preparation of agreement by arbitrator

   (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 arbitrator and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the arbitrator in writing forthwith, and the arbitrator shall prepare a document in the form of a collective agreement giving effect to the decision of the arbitrator 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 arbitrator within a period of five days from the day of its submission by the arbitrator to them, the document shall come into effect as though it had been executed by the parties and the document then constitutes a collective agreement.

   (14)  The Act is amended by adding the following section before the heading "Operation of Collective Agreements":

Transition

   50.9  If a matter has been referred to arbitration before the day section 2 of the Public Sector Capacity to Pay Act, 2013 comes into force, the arbitration proceeding shall be conducted under this Act as it read immediately before that day.

Hospital Labour Disputes Arbitration Act

   20.  (1)  Section 5 of the Hospital Labour Disputes Arbitration Act is repealed.

   (2)  Subsections 6 (1), (2), (3), (4), (5), (6), (7) and (7.1) of the Act are repealed and the following substituted:

Appointment of arbitrator

   (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, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (6)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Selection of method

   (7)  Subject to subsections (7.2) to (7.4), the Minister shall select the method of arbitration and shall advise the arbitrator of the selection.

   (3)  Subsections 6 (8), (9) and (10) of the Act are repealed.

   (4)  Subsections 6 (11), (12), (13) and (13.1) of the Act are repealed and the following substituted:

If arbitrator unable to act

   (11)  If the 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 make a decision within the time set out in subsection 9 (4), 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 an arbitrator shall then apply with necessary modifications.

Restriction on appointment of arbitrator

   (12)  No person shall be appointed an arbitrator under this Act who has any pecuniary interest in the matters coming before him or her 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

   (13)  Subject to subsection (13.1), the arbitrator shall fix the time and place of the first or any subsequent hearing and shall give notice of it to the Minister and the Minister shall notify the parties of it.

When hearings commence

   (13.1)  The arbitrator shall hold the first hearing within 30 days after being appointed.

   (5)  Subsection 6 (13.2) of the Act is amended by striking out "(7.1)" and substituting "(7)".

   (6)  Subsection 6 (14) of the Act is repealed.

   (7)  Subsections 6 (15), (16), (16.1), (17), (18), (18.1), (18.2), (18.3), (18.4) and (19) of the Act are repealed and the following substituted:

Order to expedite proceedings

   (15)  The arbitrator shall keep the Minister advised of the progress of the arbitration and if the Minister is advised that the arbitrator has failed to make a decision within the time set out in subsection 9 (4), the Minister may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be made within a reasonable time.

Procedure

   (16)  Subject to the other provisions of this section, an arbitrator shall determine his or her own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.

Powers

   (17)  The arbitrator has all the powers of a chair and the members of a board of arbitration under the Labour Relations Act, 1995.

   (8)  Section 7 of the Act is repealed and the following substituted:

Appointment or proceedings of arbitrator not subject to review

   7.  If an arbitrator has been appointed, it shall be presumed conclusively that he or she has been appointed in accordance with this Act and no application shall be made, taken or heard for judicial review or to question the appointment or to review, prohibit or restrain any of his or her proceedings.

   (9)  Subsection 8 (1) of the Act is amended by striking out "board of arbitration" at the end and substituting "arbitrator".

   (10)  Subsections 8 (3) and (4) of the Act are repealed and the following substituted:

Powers of arbitrator

   (3)  In an arbitration to which this section applies, the arbitrator may, in addition to the powers conferred upon an arbitrator 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

   (4)  If matters of particular dispute are not resolved by further collective bargaining under clause (3) (b), the arbitrator shall decide the matters.

   (11)  Subsections 9 (1) and (1.1) of the Act are repealed and the following substituted:

Duty of arbitrator

   (1)  The arbitrator shall examine into and decide on matters that are in dispute, but the arbitrator shall not,

  (a)  deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration; or

  (b)  decide any matters that come within the jurisdiction of the Ontario Labour Relations Board.

Applicable provisions

   (1.0.1)  Section 7 of the Public Sector Capacity to Pay Act, 2013 applies, with necessary modifications, to the arbitrator and the arbitrator's decision.

Criteria

   (1.1)  In making a decision, the arbitrator shall consider,

  (a)  the primary criteria listed in subsection (1.1.3) and the secondary criteria listed in subsection (1.1.4), if the employer is a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006; or

  (b)  the criteria listed in subsection (1.1.5), if the employer is not a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006.

Definition

   (1.1.1)  In this section,

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Ranking, municipal hospital

   (1.1.2)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (1.1.3)  The primary criteria mentioned in clause (1.1) (a) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (1.1.4)  The secondary criteria mentioned in clause (1.1) (a) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

Non-municipal hospital

   (1.1.5)  The criteria mentioned in clause (1.1) (b) are the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (1.1.6)  In applying the criteria required by subsection (1.1.3), (1.1.4) or (1.1.5), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

   (12)  Subsection 9 (1.3) of the Act is repealed and the following substituted:

Reasons

   (1.3)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (1.4)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (1.1) and has done so in accordance with subsections (1.1.2) and (1.1.6).

   (13)  Subsection 9 (2) of the Act is repealed and the following substituted:

Arbitrator to remain seized of matters

   (2)  The arbitrator 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.

   (14)  Subsection 9 (3) of the Act is amended by striking out "The Arbitrations Act" at the beginning and substituting "The Arbitration Act, 1991".

   (15)  Subsections 9 (4) and (5) of the Act are repealed and the following substituted:

Time for decision

   (4)  The arbitrator shall make a decision within nine months after being appointed.

   (16)  Section 9.1 of the Act is repealed and the following substituted:

Cost of arbitration

   9.1  Each party shall pay one-half of the remuneration and expenses of the arbitrator.

   (17)  Subsection 10 (1) of the Act is amended by striking out "board of arbitration" and substituting "arbitrator".

   (18)  Subsections 10 (3), (4), (5), (6), (7), (8) and (9) of the Act are repealed and the following substituted:

Decision of arbitrator

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

Same

   (4)  If the parties have not notified the arbitrator in writing that, during the bargaining under this Act or during the proceedings before the arbitrator, they have agreed upon some matters to be included in the collective agreement, the arbitrator shall decide all matters in dispute and all other matters that appear to the arbitrator 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 arbitrator 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 arbitrator and any agreement of the parties, and the document then constitutes a collective agreement.

Preparation of agreement by arbitrator

   (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 arbitrator and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the arbitrator in writing forthwith, and the arbitrator shall prepare a document in the form of a collective agreement giving effect to the decision of the arbitrator 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 arbitrator within a period of five days from the day of its submission by the arbitrator to them, the document shall come into effect as though it had been executed by the parties and the document then constitutes a collective agreement under the Labour Relations Act, 1995.

Effective date

   (8)  Except in arbitrations under section 8, the date the arbitrator makes the decision is the effective date of the document that constitutes a collective agreement between the parties.

Same

   (9)  The date the arbitrator makes the decision under section 8 upon matters of common dispute shall be deemed to be the effective date of the document that constitutes a collective agreement between the parties.

   (19)  Subsections 10 (12) and (13) of the Act are repealed and the following substituted:

Same

   (12)  If, under subsection (11), the period of two years has expired on or will expire within a period of less than 90 days from the date the arbitrator makes the decision, the document that constitutes a collective agreement shall continue to operate for a period of 90 days from the date the arbitrator makes the decision for the purposes of subsections 7 (4), 59 (1) and 63 (2) of the Labour Relations Act, 1995.

Retroactive terms

   (13)  In making a decision upon matters in dispute between the parties, the arbitrator may provide,

  (a)  if notice was given under section 16 of the Labour Relations Act, 1995, that any of the terms of the agreement, except its term of operation, shall be retroactive to the day that the arbitrator fixes, but not earlier than the day upon which the notice was given; or

  (b)  if notice was given under section 59 of the Labour Relations Act, 1995, that any of the terms of the agreement, except its term of operation, shall be retroactive to the day that the arbitrator fixes, but not earlier than the day upon which the previous agreement ceased to operate.

   (20)  Section 16 of the Act is repealed and the following substituted:

Filing of decisions

   16.  Every arbitrator shall file a copy of every decision of the arbitrator with the Minister.

   (21)  The Act is amended by adding the following section:

Transition

   17.1  If a matter has been referred to arbitration before the day section 2 of the Public Sector Capacity to Pay Act, 2013 comes into force, the arbitration proceeding shall be conducted under this Act as it read immediately before that day.

   (22)  Section 18 of the Act is amended by striking out "a board of arbitration established under this Act" at the end and substituting "an arbitrator appointed under this Act".

   (23)  Clauses 19 (a) and (b) of the Act are repealed and the following substituted:

  (a)  providing for and regulating the engagement of experts, investigators and other assistants by arbitrators;

  (b)  providing for and fixing the remuneration and expenses of arbitrators;

Ontario Provincial Police Collective Bargaining Act, 2006

   21.  (1)  Section 6 of the Ontario Provincial Police Collective Bargaining Act, 2006 is amended by adding the following subsection:

Definitions

   (1.1)  In this section,

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

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013; (secteur public")

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013. ("tableau des arbitres")

   (2)  Subsections 6 (2) and (3) of the Act are repealed and the following substituted:

Appointment of arbitrator and selection of method

   (2)  The following rules apply to the appointment of the arbitrator and the selection of the method of arbitration:

    1.  The Solicitor General shall inform the Minister who shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

    2.  Within seven days of receiving the list, the parties shall give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator or give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

    3.  If the parties do not give any required notice to the Minister, the Minister may appoint as the arbitrator any person whose name appears on the list. If the parties give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator, the Minister shall appoint the person as the arbitrator. If the parties give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator, the Minister shall consider the notice and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

    4.  If the appointed arbitrator is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and paragraphs 2 and 3 apply, with necessary modifications, with respect to the appointment of an arbitrator.

    5.  The chair of the Ontario Police Arbitration Commission shall select the method of arbitration and shall advise the arbitrator of the selection. The method selected shall be mediation-arbitration unless the chair of the Commission is of the view that another method is more appropriate. The method selected shall not be final offer selection without mediation and it shall not be mediation-final offer selection unless the chair of the Commission, 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. If the method selected is mediation-final offer selection, the arbitrator shall be the mediator.

When hearings commence

   (3)  The arbitrator shall hold the first hearing within 30 days after being appointed.

   (3)  Subsection 6 (5) of the Act is repealed.

   (4)  Subsection 6 (6) of the Act is repealed and the following substituted:

Hearing

   (6)  If the method of arbitration selected by the chair of the Ontario Police Arbitration Commission is conventional arbitration, the arbitrator shall hold a hearing but may impose limits on the submissions of the parties and the presentation of their cases.

   (5)  Subsections 6 (8), (9), (10) and (11) of the Act are repealed and the following substituted:

Time for decision

   (8)  The arbitrator shall make a decision within nine months after being appointed.

Order to expedite proceedings

   (9)  The arbitrator shall keep the chair of the Ontario Police Arbitration Commission advised of the progress of the arbitration and if the chair is advised that the arbitrator has failed to make a decision within the time set out in subsection (8), the chair may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be made within a reasonable time.

Criteria

   (10)  In making a decision on the matter, the arbitrator shall consider the following criteria:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (11)  In applying the criteria listed in subsection (10), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

   (6)  Subsection 6 (12) of the Act is amended by striking out "an arbitration board" in the portion before clause (a) and substituting "an arbitrator".

   (7)  Subsection 6 (12) of the Act is amended by striking out "or" at the end of clause (b), by adding "or" at the end of clause (c) and by adding the following clause:

  (d)  was not the subject of negotiation between the parties during the period before matters were referred to arbitration.

   (8)  Section 6 of the Act is amended by adding the following subsections:

Reasons

   (13)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (14)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria listed in subsection (10) and has done so in accordance with subsection (11).

Applicable provisions

   (15)  Subsection 6 (12), section 7, subsection 9 (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator.

Police Services Act

   22.  (1)  Section 122 of the Police Services Act is amended by adding the following subsection:

Definitions

   (1.1)  In this section,

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

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013; ("secteur public")

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013. ("tableau des arbitres")

   (2)  Subsection 122 (2) of the Act is repealed and the following substituted:

Appointment of arbitrator and selection of method

   (2)  The following rules apply to the appointment of the arbitrator and the selection of the method of arbitration:

    1.  The Chair of the Arbitration Commission shall inform the Minister who shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

    2.  Within seven days of receiving the list, the parties shall give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator or give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

    3.  If the parties do not give any required notice to the Minister, the Minister may appoint as the arbitrator any person whose name appears on the list. If the parties give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator, the Minister shall appoint the person as the arbitrator. If the parties give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator, the Minister shall consider the notice and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

    4.  If the appointed arbitrator is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and paragraphs 2 and 3 apply, with necessary modifications, with respect to the appointment of an arbitrator.

    5.  The chair of the Arbitration Commission shall select the method of arbitration and shall advise the arbitrator of the selection.  The method selected shall be mediation-arbitration unless the chair of the Arbitration Commission is of the view that another method is more appropriate. The method selected shall not be final offer selection without mediation and it shall not be mediation-final offer selection unless the chair of the Arbitration Commission 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. If the method selected is mediation-final offer selection, the arbitrator shall be the mediator.

   (3)  Subsection 122 (3.2) of the Act is repealed.

   (4)  Subsection 122 (3.3) of the Act is repealed and the following substituted:

Hearing

   (3.3)  If the method of arbitration selected by the chair of the Arbitration Commission is conventional arbitration, the arbitrator shall hold a hearing but may impose limits on the submissions of the parties and the presentation of their cases.

   (5)  Subsections 122 (3.5), (3.6) and (3.7) of the Act are repealed and the following substituted:

Time for decision

   (3.5)  The arbitrator shall make a decision within nine months after being appointed.

Order to expedite proceedings

   (3.6)  The arbitrator shall keep the chair of the Arbitration Commission advised of the progress of the arbitration and if the chair is advised that the arbitrator has failed to make a decision within the time set out in subsection (3.5), the chair may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that a decision will be made within a reasonable time.

Cost of arbitration

   (3.7)  Each party shall pay one-half of the remuneration and expenses of the arbitrator.

   (6)  Subsection 122 (5) of the Act is repealed and the following substituted:

Criteria

   (5)  In making a decision, the arbitrator shall take into consideration the primary criteria listed in subsection (5.0.2) and the secondary criteria listed in subsection (5.0.3).

Ranking

   (5.0.1)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (5.0.2)  The primary criteria mentioned in subsection (5) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (5.0.3)  The secondary criteria mentioned in subsection (5) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

No tax increase

   (5.0.4)  In applying the criteria listed in subsection (5.0.2) or (5.0.3), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

   (7)  Subsection 122 (5.2) of the Act is repealed and the following substituted:

Scope of decision

   (5.2)  In making a decision, the arbitrator shall not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration.

Reasons

   (5.3)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (5.4)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (5) and has done so in accordance with subsection (5.0.4).

   (8)  Section 122 of the Act is amended by adding the following subsection:

Applicable provisions

   (7)  Subsection 6 (12), section 7, subsection 9 (3) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator.

Provincial Schools Negotiations Act

   23.  (1)  Subsection 5 (1) of the Provincial Schools Negotiations Act is amended by adding "except if this Act provides otherwise" at the end.

   (2)  The Act is amended by adding the following sections:

Definition

   6.1  In this section and sections 6.2 to 6.4,

"Minister" means the Minister of Labour.

Voluntary arbitration

   6.2  (1)  Section 40 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Act with the modifications set out in this section.

Referral to arbitrator

   (2)  Under subsection 40 (1) of the Labour Relations Act, 1995, if the parties agree to refer matters remaining in dispute between them to arbitration, the referral shall be to an arbitrator appointed under section 6.3 and the parties shall notify the Minister.

Applicable provisions

   (3)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

First agreement arbitration

   6.3  (1)  Section 43 of the Labour Relations Act, 1995 applies with respect to resolving matters in dispute between parties under this Act, with the modifications set out in this section.

Arbitrator

   (2)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Ontario Labour Relations Board shall forward a copy to the Minister.

Non-applicable provisions

   (3)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the arbitrator under this section.

Applicable provisions

   (4)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator and the arbitrator's decision.

Appointment of arbitrator

   6.4  (1)  Within seven days after the parties have agreed to refer matters to arbitration under subsection 6.2 (2) or after the Minister receives the copy of an application under subsection 6.3 (2), as the case may be, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (6)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (7)  If an arbitrator appointed under subsection (4), (5) or (6) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (3) to (6) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Arbitration decision

   6.5  (1)  In making a decision, the arbitrator shall consider the following criteria:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (2)  In applying the criteria listed in subsection (1), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

Scope of decision

   (3)  In making a decision under this Act, an arbitrator shall not deal with a term or condition of employment that was not the subject of negotiation between the parties to the arbitration during the period before matters were referred to arbitration.

Reasons

   (4)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (5)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria listed in subsection (1) and has done so in accordance with subsection (2).

Public Sector Dispute Resolution Act, 1997

   24.  Paragraph 3 of section 1 of the Public Sector Dispute Resolution Act, 1997 is amended by adding "given the pressing financial need of the Province of Ontario to achieve fiscal solvency by freezing compensation levels in the public sector until the Province no longer has an annual deficit" at the end.

Public Sector Labour Relations Transition Act, 1997

   25.  (1)  Subsection 32 (3) of the Public Sector Labour Relations Transition Act, 1997 is repealed.

   (2)  Section 32 of the Act is amended by adding the following subsections:

Definitions

   (5)  In this section,

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

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013; ("secteur public")

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013. ("tableau des arbitres")

First agreement arbitration

   (6)  Upon receiving an application under subsection 43 (1) of the Labour Relations Act, 1995, the Board shall forward a copy to the Minister, who, within seven days after receiving the copy, shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Response of parties

   (7)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (8)  If the parties do not comply with subsection (7), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (9)  If the parties comply with clause (7) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (10)  If the parties comply with clause (7) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (11)  If an arbitrator appointed under subsection (8), (9) or (10) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (7) to (10) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

Non-applicable provisions

   (12)  Subsections 43 (3) to (7), (9) and (10) of the Labour Relations Act, 1995 do not apply to an arbitration conducted by the arbitrator under this section.

Applicable provisions

   (13)  Subsections 6 (7), (12), (13) and (15), section 7, subsections 9 (3) and (4) and sections 9.1 and 17.1 of the Hospital Labour Disputes Arbitration Act, subsections 48 (12) and (18) of the Labour Relations Act, 1995 and section 7 of the Public Sector Capacity to Pay Act, 2013 apply, with necessary modifications, to the arbitrator.

Criteria to consider

   (14)  In making a decision under section 43 of the Labour Relations Act, 1995, as that section applies under subsection (1), an arbitrator shall take into consideration,

  (a)  the primary criteria listed in subsection (16) and the secondary criteria listed in subsection (17), if the employer is a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006; or

  (b)  the criteria listed in subsection (18), if the employer is not a municipality or local board as defined in section 1 of the Municipal Act, 2001 or section 3 of the City of Toronto Act, 2006.

Ranking, employer is a municipality

   (15)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (16)  The primary criteria mentioned in clause (14) (a) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (17)  The secondary criteria mentioned in clause (14) (a) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

Employer is not a municipality

   (18)  The criteria mentioned in clause (14) (b) are the following:

    1.  National, provincial and local unemployment rates, economic growth rates and personal income levels.

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

    3.  Inherent advantages in bargaining enjoyed by the employees because there is a monopoly on services, because the activities are not carried on for profit, or for both reasons.

    4.  If applicable, the mandate of elected officials.

    5.  The following matters with respect to the Province of Ontario:

            i.  Projected budget surplus or deficit.

           ii.  Revenue and expenditures.

          iii.  Growth or decline of the tax base.

          iv.  Net debt and borrowing costs.

No tax increase

   (19)  In applying the criteria listed in subsection (16), (17) or (18), the arbitrator shall assume that no tax rate will be increased to pay the costs of the decision.

Reasons

   (20)  Upon making the decision, the arbitrator shall provide written reasons to each party.

Same

   (21)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (14) and has done so in accordance with subsections (15) and (19).

Scope of decision

   (22)  In making a decision, the arbitrator shall not deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration.

Toronto Transit Commission Labour Disputes Resolution Act, 2011

   26.  (1)  Subsections 5 (1), (2), (3), (4) and (5) of the Toronto Transit Commission Labour Disputes Resolution Act, 2011 are repealed and the following substituted:

Appointment of arbitrator

   (1)  Within seven days after the day on which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration.

Definition

   (2)  In this section,

"roster of arbitrators" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Response of parties

   (3)  Within seven days of receiving the list, the parties shall,

  (a)  give notice to the Minister that they jointly agree on having a person whose name appears on the list act as the arbitrator; or

  (b)  give notice to the Minister setting out the name of a person whose name does not appear on the list but whose name does appear on the roster of arbitrators and whom the parties jointly propose that the Minister should appoint as the arbitrator.

If no response by parties

   (4)  If the parties do not comply with subsection (3), the Minister may appoint as the arbitrator any person whose name appears on the list.

Arbitrator appointed from list

   (5)  If the parties comply with clause (3) (a), the Minister shall appoint the person named in the notice described in that clause as the arbitrator.

Minister's reaction

   (5.1)  If the parties comply with clause (3) (b), the Minister shall consider the notice described in that clause and, within 14 days after receiving it, appoint as the arbitrator the person named in the notice or any person whose name appears on the list.

Replacement

   (5.2)  If an arbitrator appointed under subsection (4), (5) or (5.1) is unable or unwilling to perform his or her duties, the Minister shall provide the parties with a list of no fewer than three persons from the roster of arbitrators who are available to conduct the arbitration and subsections (3) to (5.1) shall apply, with necessary modifications, with respect to the appointment of an arbitrator.

   (2)  Subsections 6 (1), (2) and (3) of the Act are repealed and the following substituted:

Selection of method

   (1)  The Minister shall select the method of arbitration.

   (3)  Section 7 of the Act is amended by adding the following subsection:

Pre-arbitration conference

   (0.1)  Section 7 of the Public Sector Capacity to Pay Act, 2013 applies, with necessary modifications, to the proceedings before the arbitrator and to his or her decision.

   (4)  Subsections 7 (3) and (4) of the Act are repealed and the following substituted:

Order to expedite proceedings

   (3)  The arbitrator shall keep the Minister advised of the progress of the arbitration and if the Minister is advised that an award has not been rendered within the time set out in subsection 10 (6), the Minister may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that an award will be rendered within a reasonable time, but such an order shall require that an award be rendered no later than 120 days after the arbitrator was appointed.

   (5)  Section 8 of the Act is repealed.

   (6)  Subsections 10 (1) and (2) of the Act are repealed and the following substituted:

Duty of arbitrator

   (1)  The arbitrator shall examine into and decide on matters that are in dispute, but the arbitrator shall not,

  (a)  deal with a term or condition of employment that was not the subject of negotiation between the parties during the period before matters were referred to arbitration; or

  (b)  decide any matters that come within the jurisdiction of the Board.

Criteria

   (2)  In making an award, the arbitrator shall take into consideration the primary criteria listed in subsection (2.3) and the secondary criteria listed in subsection (2.4).

Definition

   (2.1)  In this section,

"public sector" has the same meaning as in the Public Sector Capacity to Pay Act, 2013.

Ranking

   (2.2)  The primary criteria shall be given greater weight than the secondary criteria.

Primary criteria

   (2.3)  The primary criteria mentioned in subsection (2) are the following:

    1.  A comparison with the wages and conditions of employment of employees of the employer who are outside the bargaining unit involved in the arbitration.

    2.  A comparison with the wages and conditions of employment of persons working outside the public sector in the same municipality.

    3.  A comparison of total compensation costing of the collective agreement, including present and future liabilities, with the total compensation costing of any comparator agreement.

    4.  The net changes in the Consumer Price Index for Ontario as published by Statistics Canada under the authority of the Statistics Act (Canada) for the five-year period before the referral to arbitration.

    5.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the unemployment rate, participation rate and employment rate in the five-year period before the referral to arbitration.

    6.  The decline or improvement in the fiscal health of the municipality, relative to comparable municipalities in Ontario, as measured by changes to the following in the five-year period before the referral to arbitration:

            i.  Total property tax assessment and weighted property tax assessment per household.

           ii.  Actual tax revenue.

          iii.  Assessment ratio among residential, commercial and industrial properties.

          iv.  Taxes receivable as a percentage of total taxes levied.

           v.  End of year reserve balance as a percentage of total operating expenditures.

          vi.  Per capita cost of post-employment benefit liability.

         vii.  Caseloads under the Ontario Works Act, 1997 and the Ontario Disability Support Program Act, 1997.

        viii.  Median household income.

          ix.  Annual change in assessment measured by new construction.

           x.  Ratio of population between 18 and 65 years of age to population under 18 or over 65.

          xi.  Percentage of population above the low income cut-off as published by Statistics Canada under the authority of the Statistics Act (Canada).

    7.  A comparison with the wages and conditions of employment of persons in comparable municipalities with similar fiscal health characteristics,

            i.  in the public sector, and

           ii.  outside the public sector.

    8.  Any Act, regulation or ministerial directive that limits the employer's expenditures or revenue collection.

    9.  The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.

Secondary criteria

   (2.4)  The secondary criteria mentioned in subsection (2) are the following:

    1.  The general economic situation in Ontario and in the municipality, to the extent that it has not been addressed by the primary criteria.

    2.  The job security of the employees, compared to the job security of other persons employed in the municipality in the public sector and outside the public sector.

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

    4.  The interest and welfare of the municipality.

No tax increase

   (2.5)  In applying the criteria listed in subsection (2.3) or (2.4), the arbitrator shall assume that no tax rate will be increased to pay the costs of the award.

   (7)  Section 10 of the Act is amended by adding the following subsections:

Reasons

   (3.1)  Upon making the award, the arbitrator shall provide written reasons to each party.

Same

   (3.2)  The written reasons must clearly demonstrate that the arbitrator has given proper consideration to the criteria required by subsection (2) and has done so in accordance with subsections (2.2) and (2.5).

   (8)  Subsection 10 (7) of the Act is repealed.

   (9)  Section 20 of the Act is amended by adding the following subsection:

Transition

   (3)  If a matter has been referred to arbitration before the day section 2 of the Public Sector Capacity to Pay Act, 2013 comes into force, the arbitration proceeding shall be conducted under this Act as it read immediately before that day.

Commencement

   27.  (1)  Subject to subsection (2), this Act comes into force on the day it receives Royal Assent.

Same

   (2)  Sections 2, 3, 4, 6 to 12 and 14 to 26 come into force 90 days after the day this Act receives Royal Assent.

Short title

   28.  The short title of this Act is the Public Sector Capacity to Pay Act, 2013.

 

EXPLANATORY NOTE

The Bill enacts the Public Sector Capacity to Pay Act, 2013 and makes related amendments to 11 Acts in connection with interest arbitration in the public sector, which is broadly defined. The Bill implements many of the recommendations contained in the report submitted on February 15, 2012 by the Commission on the Reform of Ontario's Public Services led by Don Drummond.

In accordance with the process specified by the regulations made under the Act, the Minister of Labour is required to establish a roster of arbitrators having the qualifications specified by the regulations. A single arbitrator is to conduct an arbitration. The Minister appoints the arbitrator after having provided the parties with a list of at least three available arbitrators taken from the roster of arbitrators. If the parties jointly propose the name of a person who is not on the list but who is on the roster, the Minister may appoint that person as the arbitrator.

The arbitrator is required to convene a conference for the parties to the arbitration to disclose the issues that they intend to raise during the arbitration and the evidence that they intend to present during the arbitration. A party is precluded from raising an issue or presenting evidence after the end of the conference if the party has not disclosed it during the conference. The arbitrator is required to take into account the criteria set out in section 8, in the case of employers in the municipal sector, or section 9, in the case of employers in the rest of the public sector, in addition to any other criteria provided by law. The criteria include economic indicators of particular communities and employment contracts.

The arbitrator is required to render decisions within nine months after having been appointed. If this deadline is not met, the responsible Minister or other official has the power to make an order to ensure that a decision will be rendered within a reasonable time.

The arbitrator is required to provide written reasons clearly demonstrating that he or she has given proper consideration to the criteria and has applied the criteria on the basis that no tax rate will be increased to pay the costs of the decision.

The Minister of Finance is required to establish, within existing resources of the Ministry of Finance, a Capacity to Pay Division whose function is the collection and publication of information about interest arbitrations in the public sector and about related matters.

The Public Sector Dispute Resolution Act, 1997 is amended to add a reference to "the pressing financial need of the Province of Ontario to achieve fiscal solvency by freezing compensation levels in the public sector until the Province no longer has an annual deficit".