Industrial Relations Act
These "frequently asked questions and answers" are meant to serve only as a guide to the Industrial Relations Act. These questions and answers are an attempt to express the provisions of the Act in practical language. The reader is strongly advised to consult the appropriate Provincial Act. Where any difference exists between this document and the Industrial Relations Act, the Act will prevail.
1. What is a collective agreement?
A collective agreement is an agreement in writing between an employer and the trade union representing employees of the employer which contains provisions respecting conditions of employment, rates of pay, hours of work, and the rights and obligations of the parties to the agreement. Ordinarily the agreement is for a definite period such as one, two or three years, but not less than twelve months. Under some conditions, amendments are made to agreements by mutual consent during the term of the agreement in order to deal with special circumstances.
2. What is collective bargaining?
Collective bargaining is the framework under which the negotiation of the collective agreement takes place. It is a process in which a trade union and an employer negotiate, in good faith, the rights and obligations of a first collective agreement or the renewal of a previous collective agreement. In this process, the parties usually focus on such issues as wages, working conditions, grievance procedures and fringe benefits.
3. Who can participate in collective bargaining?
Every employee (except managers; superintendents; and persons who in the opinion of the Labour and Employment Board are employed in a confidential capacity in matters relating to labour relations or who exercise management functions) has the right to be a member of a trade union and to participate in the union's lawful activities, including collective bargaining.
4. How do unions get bargaining rights?
There are two methods of gaining bargaining rights. The first is certification and the second is voluntary recognition.
5. What is certification?
Certification is the process whereby the Labour and Employment Board designates a trade union as the sole and exclusive bargaining agent for a group of employees, referred to as a bargaining unit, following proof that the bargaining agent has majority support among the employees in the bargaining unit.
6. What is voluntary recognition?
Voluntary recognition is where a trade union acquires the status of exclusive bargaining agent for a group of employees in a defined bargaining unit because an employer voluntarily agrees to recognize it as such.
7. When can a union apply for certification?
Where no collective agreement is in force and no trade union is certified under the Act, an application for certification may be made at any time before the Labour and Employment Board.
8. How does collective bargaining begin?
If a trade union has been certified and no collective agreement is in force, the trade union may give the employer written notice of its desire to bargain or the employer (or employer's organization) may give written notice to the trade union of its desire to bargain.
According to the Industrial Relations Act, where a collective agreement is already in force, either party may within the period of the 90th and 30th day before expiration of the agreement, give notice in writing to the other of its desire to bargain for the renewal or revision of the collective agreement.
Once notice is given, both sides must meet as soon as possible, but no later than 20 days after the notice was given (unless extended upon mutual agreement of the parties), to commence bargaining and must make every reasonable effort to reach an agreement.
9. During collective bargaining, is it possible for wage rates and other working conditions to be changed?
Once notice to bargain has been given, unless the parties otherwise agree, wage rates, benefits, working conditions, and other rights must remain the same until a collective agreement has been concluded or the parties are in a strike or lock-out position.
10. What can one side do if the other side refuses to negotiate or appears not to be negotiating in good faith?
If one party does not respond to a notice to bargain, or appears not to be bargaining in good faith, the other party may file a complaint with the Minister. The Minister may then refer the complaint to the Labour and Employment Board.
The Board shall inquire into the complaint and determine whether to dismiss the complaint or order compliance with the requirement to bargain in good faith. One of the parties or both may also apply to the Minister for the appointment of a conciliation officer.
11. What happens if, during negotiations, an employer and a trade union cannot agree on the terms to be included in a collective agreement?
Once notice has been given to commence collective bargaining, whether or not actual bargaining has taken place, either party may ask the Minister to appoint a conciliator or mediation officer to assist in the conclusion of an agreement. The request must be accompanied by a statement of difficulties encountered by the parties in negotiations to date.
12. What do conciliators and mediation officers do?
Conciliators and mediation officers attempt to resolve differences between parties by offering the input of a neutral third party into the matters in dispute. They then file a report with the Minister.
13. What if no agreement is reached during the conciliation process?
If no agreement can be reached by the parties, they may agree to submit their differences to binding arbitration (firefighters and police officers must proceed in this fashion) or they may, after 9 days from the date the conciliation board report is filed, engage in a strike or lock-out.
14. Can there be a strike or lock-out during the term of the collective agreement?
No, there can be no strike or lock-out during the term of a collective agreement.
15. Can amendments be made to a collective agreement?
Yes, revisions of any provision in the agreement, other than a provision relating to the term of the agreement's operation, may be made at any time with mutual consent of the parties.
16. What is interest arbitration?
Referred to as "Collective Agreement" arbitration it occurs where the parties cannot agree to the terms and conditions of a proposed collective agreement. Interest arbitration may be voluntary or compulsory. (In New Brunswick, it is compulsory for firefighters and police officers, voluntary for all other groups of employees).
17. What is rights arbitration?
Referred to as "Grievance" arbitration it occurs where a difference arises between the parties relative to the interpretation, application or to the administration a collective agreement.
18. What happens if an employee or trade union feels that the employer is not following the terms of the collective agreement, or if there is a disagreement about the meaning of a part of the collective agreement?
In such a case, the employee or trade union may file a complaint, referred to as a grievance, with their employer.
19. Can the employer file a grievance if the union is not complying with the agreement?
Yes, such grievances are handled in much the same way that employee or trade union grievances are handled.
20. How are grievances settled?
a) Every collective agreement must contain a grievance procedure for settling disagreements without work stoppages with respect to the application, interpretation, and administration of the agreement. Where a collective agreement does not contain such a provision, the Industrial Relations Act deems such a procedure to be included in the agreement.
b) The grievance mediation procedure is a voluntary process which can be an effective alternative to grievance arbitration. Grievance mediation does not interfere with the rights of the parties to have access to the grievance and arbitration processes. The parties to a collective agreement through the assistance of a grievance mediator, attempt to resolve a grievance through negotiations, therefore allowing the parties to control and shape settlements. If no agreement is reached, the grievance may still be referred to Arbitration. The only expense incurred by the parties in grievance mediation is the cost of the facilities, if necessary.
c) Arbitration is a process by which a third party makes a settlement decision that is final and binding on the parties. The Arbitrator is not familiar with the negotiations that have taken place between the parties. All he or she knows, and all he or she can base the decision on is what the Arbitrator hears and sees at the Arbitration.
21. How can a trade union and an employer receive assistance in settling a grievance?
If the grievance procedure outlined in the collective agreement has been exhausted and the grievance has not been settled, the parties may submit the grievance to arbitration for a final and binding determination. Arbitration may be done by a sole arbitrator or by an arbitration board.
22. Who selects the arbitrator or members of an arbitration board?
An arbitrator is appointed by the parties on mutual agreement and, in the case of an arbitration board, each party appoints one person to be a member of the board. These two members appoint a third to be chairperson. If these appointments are not made, the Minister Post-Secondary Education, Training and Labour upon the request of either party, may make such appointments.
23. Who pays for arbitration?
Each of the parties pay one-half the remuneration and expenses of an arbitrator and, in the case of an arbitration board, each party pays for the person they appointed and one-half of the Chairperson's remuneration and expenses.
24. How long does an arbitration board have to settle a dispute?
An arbitrator or an arbitration board shall proceed with and complete the arbitration as expeditiously as possible, having regard to the interests of the parties, and shall render an award within 3 months after the date of appointment of an arbitrator or arbitration board. The time for making the award may be extended by the parties. Whether the time for making the award has expired will not invalidate an award.
25. What is expedited arbitration?
It is an option open to parties to a grievance that allows the grievance to be settled by an arbitrator within a set time limit. You can request expedited arbitration after you have exhausted the grievance procedure under your collective agreement or, 30 days have elapsed since the grievance was first brought to the attention of the other party, whichever comes first.
26. What is the normal procedure to use expedited arbitration?
An application must be filed with the Minister of Post-Secondary Education, Training and Labour for expedited arbitration (application forms are available via the Industrial Relations Branch of the department) at (506) 453-2261. Within 28 days of receiving a request, an arbitrator will be appointed and conduct a hearing. If both parties agree, a mediator may be appointed to assist in settling the grievance before the hearing. If the grievance is not settled, the grievance will proceed to arbitration. If requested by the parties, the arbitrator will provide written reasons for the decision within 21 days of the end of the hearing. This decision is filed with the Minister.
27. What power does the arbitrator or arbitration board have?
Arbitrators and arbitration boards have broad powers, including the power to summons witnesses before them; to hear evidence under oath; to receive and accept relevant evidence; and to correct any clerical mistake, error or oversight found in their award. They also have the power to enter any premises concerning the matter(s) in dispute for a site visit. A decision of an arbitrator or of an arbitration board is final and conclusive to the matter in dispute.
28. What is a strike?
A strike is a cessation of work, a refusal to work or to continue work by employees in combination or in concert with a common understanding, or a slow-down or other concerted activity on the part of employees designed to restrict or limit production for the purpose of compelling an employer to agree to terms or conditions of employment.
29. What is a lock-out?
A lock-out is the closing of a place of employment, a suspension of work, or a refusal by an employer to continue to employ a number of its employees, for the purpose of compelling bargaining unit employees to agree to terms or conditions of employment.
30. When is a strike or lock-out illegal?
A strike or lock-out is illegal while a collective agreement is in operation.
31. Who can go on strike or be locked out?
All employees defined in a bargaining unit represented by a trade union may legally strike or be locked out by an employer, except those employed as firefighters and police officers who do not have the right to strike.
32. Must there be a strike or lock-out vote before a strike or lock-out can take place?
Yes, a strike or lock-out vote taken by secret ballot must precede any strike or lock-out action. All employees in the bargaining unit are entitled to vote, and a majority must vote in favour in order for the declaration of a strike or lock-out to be made. A lock-out vote is only necessary where an employers' organization is involved.
A vote to ratify the employer's offer under the proposed collective agreement and a strike vote may be combined together on a single ballot.
33. When a majority votes in favour of a strike or lock-out, must there be a strike or lock-out?
No, just because a majority votes in favour of a strike or lock-out, the bargaining agent or employers' organization is not obligated to declare a strike or lock-out.
34. When can a strike or lock-out vote take place?
No strike or lock-out vote may be held until 9 days have elapsed (7 day waiting period plus 2 day mailing period) after the Minister has decided not to appoint a conciliation officer or a conciliation board.
35. Must advance notice be given before strike or lock-out activity?
Written notice, at least 24 hours in advance, must be given by a trade union or an employer before a lawful strike or lock-out can take place.