Acts and Regulations

F-15.01 - Fisheries Bargaining Act

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Current to 1 January 2024
CHAPTER F-15.01
Fisheries Bargaining Act
Assented to April 30, 1982
Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:
INTERPRETATION
Definitions
1In this Act
“accredited buyers’ organization” means an organization of buyers that is accredited under this Act as the bargaining agent for a unit of buyers;(organisation d’acheteurs agréée)
“bargaining agent” means a fishermen’s organization or council of fishermen’s organizations that acts on behalf of fishermen(agent négociateur)
(a) in collective bargaining, or
(b) as a party to a collective agreement with a buyer or buyers’ organization;
“Board” means the Labour and Employment Board established under the Labour and Employment Board Act;(Commission)
“boycott” means, in the case of a fisherman or fishermen’s organization, a ban or restriction against the sale of fish to a buyer or a buyers’ organization by fishermen or a fishermen’s organization, or action by fishermen in combination or in concert or in accordance with a common understanding or other concerted activity on the part of fishermen designed to restrict or limit the supply of fish to a buyer or buyers’ organization, done with a view to compelling or inducing a buyer or buyers’ organization, or to aid other fishermen to compel or induce a buyer or buyers’ organization to agree to terms concerning the supply of fish; and, in the case of a buyer or buyers’ organization, the closing of a buyer’s business or businesses of a buyers’ organization or a refusal by a buyer or buyers’ organization to buy fish from a fisherman or fishermen’s organization, done with a view to compelling or inducing the fisherman or fishermen’s organization or to aid another buyer to compel or induce the fisherman or fishermen’s organization to agree to terms or conditions concerning the supply of fish to a buyer or buyers’ organization; and “to boycott” has a corresponding meaning;(boycottage)
“buyer” means any person who, for the purpose of resale or processing by him, purchases fish from a fisherman or from any other person acting on behalf of a fisherman;(acheteur)
“buyers’ organization” means an organization that is formed for the purpose of representing and that represents buyers;(organisation d’acheteurs)
“certified bargaining agent” means a bargaining agent that has been certified under this Act and the certification of which has not been revoked;(agent négociateur accrédité)
“Chief Executive Officer” means the chief executive officer appointed under the Labour and Employment Board Act;(chef administratif)
“collective agreement” means a signed agreement in writing between a buyer or a buyers’ organization acting on behalf of a buyer on the one hand, and a certified bargaining agent of fishermen, or a council of fishermen’s organization representing a certified bargaining agent of fishermen, acting on behalf of fishermen on the other hand, containing terms and conditions concerning the supply of fish, including provisions in regard to prices for fish supplied to the buyer by the fishermen;(convention collective)
“collective bargaining” means negotiating with a view to the conclusion of a collective agreement or the renewal or revision thereof, as the case may be, and “bargaining collectively” and “bargain collectively” have corresponding meanings;(négociations collectives)
“conciliation board” means a board of conciliation appointed or constituted under this Act;(commission de conciliation)
“conciliation officer” , “mediator” or “mediation officer” means a conciliation officer, mediator or mediation officer appointed under this Act;(conciliateur), (médiateur) ou (agent de médiation)
“council of fishermen’s organizations” means a council that is formed for the purpose of representing or that according to established bargaining practice represents fishermen’s organizations;(conseil d’organisations de pêcheurs)
“Court” means The Court of King’s Bench of New Brunswick and “judge”, when used in reference to the Provincial Court, means a judge of the Provincial Court;(Cour)
“day” means a calendar day;(jour)
“Deputy Minister” means the Deputy Minister of Post-Secondary Education, Training and Labour;(sous-ministre)
“dispute” means any dispute or difference or apprehended dispute or difference between a buyer or a buyers’ organization and one or more of the fishermen or fishermen’s organizations supplying fish to the buyer or buyers’ organization, or a certified bargaining agent acting on behalf of such fishermen or fishermen’s organizations, as to matters or things affecting or relating to terms or conditions with respect to the supplying of fish by such fisherman, fishermen or fishermen’s organization to the buyer or buyers’ organization or as to any privileges, rights or duties of the parties;(différend)
“fish” means any product of the sea which is supplied by a fisherman or fishermen’s organization to a buyer or buyers’ organization for consideration;(poisson)
“fisherman” means a commercial fisherman engaged in fishing for gain and includes a self-employed fisherman and a sharesman or a person agreeing to accept as compensation a share or portion of the proceeds or profits of a fishing venture, with or without other compensation;(pêcheur)
“fishermen’s organization” means an organization formed for purposes that include regulating certain relations between fishermen and buyers and which has a constitution and rules or by-laws setting forth its objects and purposes and defining the conditions under which fishermen may be admitted thereto and continued in membership;(organisation de pêcheurs)
“fishing industry” means the businesses that are engaged in catching, buying, processing and marketing fish;(industrie de la pêche)
“geographic area” means one of the following areas of the Province:(région géographique)
(a) Northeastern New Brunswick, which comprises the area following the coastline from the border with the Province of Quebec to but not including Burnt Church;
(b) Southeastern New Brunswick, which comprises the area following the coastline from and including Burnt Church to the border with the Province of Nova Scotia;
(c) Bay of Fundy, which comprises the area following the coastline of the Province of New Brunswick bordering on the Bay of Fundy;
“Minister” means the Minister of Post-Secondary Education, Training and Labour;(Ministre)
“rule” means a procedural rule of the Board;(règle)
“unit” means, in the case of fishermen, a group of fishermen who supply fish to one or more buyers or a buyers’ organization in a geographic area and, in the case of buyers, a group of buyers who purchase fish from one or more fishermen or fishermen’s organizations, and “appropriate for collective bargaining” with reference to a unit means a unit that is appropriate for such purposes, whether it is a buyers’ unit or a fishermen’s unit.(unité)
1983, c.30, s.12; 1986, c.8, s.49; 1992, c.2, s.25; 1998, c.41, s.57; 2000, c.26, s.136; 2001, c.44, s.1; 2006, c.16, s.73; 2007, c.10, s.41; 2017, c.63, s.26; 2019, c.2, s.65; 2023, c.17, s.97
Status of fisherman, majority vote in unit of midshore fishermen
2(1)No person shall cease to be a fisherman within the meaning of this Act by reason only of his ceasing fishing operations as a result of a boycott or because he has temporarily suspended such operations for any reason.
2(2)Notwithstanding any other provision of this Act, where a vote in a unit designated by the Board as a unit of midshore fishermen is required, the majority of votes cast by sharesmen in the unit and the majority of votes cast by fishermen in the said unit other than sharesmen are required.
RIGHTS OF BUYERS
AND FISHERMEN
Fishermen’s organization, buyer’s organization, restraint of trade
3(1)Every fisherman has the right to be a member of a fishermen’s organization and to participate in its lawful activities.
3(2)Every buyer has the right to be a member of a buyers’ organization and to participate in its lawful activities.
3(3)A fishermen’s organization and the acts thereof shall not be deemed to be unlawful by reason only that one or more of its objects are in restraint of trade.
Prohibition respecting buyers and buyers’ organization concerning fishermen’s organization and council of fishermen’s organization
4(1)No buyer or buyers’ organization, and no person acting on behalf of a buyer or buyers’ organization, shall participate in or interfere with the formation, selection or administration of a fishermen’s organization or council of fishermen’s organizations or the representation of fishermen by a fishermen’s organization or council of fishermen’s organizations or contribute financial or other support to it, but, notwithstanding anything in this section, a buyer or buyer’s organization may
(a) make to a fishermen’s organization donations to be used solely for the welfare of the members of the fishermen’s organization and their dependents;
(b) provide free transportation to representatives of the fishermen’s organization or a council of fishermen’s organizations for purposes of collective bargaining, the settlement of grievances, or an arbitration; and
(c) permit a fishermen’s organization or council of fishermen’s organization to use the buyers’ premises for the purposes of the fishermen’s organization or council of fishermen’s organizations.
4(2)No buyer or buyers’ organization, and no person acting on behalf of a buyer or buyers’ organization, shall
(a) refuse to purchase fish or to continue to purchase fish from any fisherman, or otherwise discriminate against any fisherman in regard to the purchase of fish or any term or condition of such purchase, because the fisherman is a member or officer of a fishermen’s organization or council of fishermen’s organizations,
(b) impose any condition in a contract concerning the supply of fish that restrains, or has the effect of restraining, a fisherman from exercising any right conferred upon him by this Act, or
(c) refuse to continue to purchase fish from a fisherman for the reason that
(i) the fisherman is or proposes to become, or seeks to induce any other person to become, a member or officer of a fishermen’s organization or council of fishermen’s organizations, or
(ii) the fisherman participates in the promotion, formation or administration of a fishermen’s organization or council of fishermen’s organizations.
4(3)No buyer or buyers’ organization, and no person acting on behalf of a buyer or a buyers’ organization, shall seek by intimidation, by refusing to purchase fish, by threat of refusing to purchase fish, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by a promise, or by an increase in the price of fish, or by altering any other term or condition of the supply of fish, or by any other means, to compel or induce a fisherman to refrain from becoming, or to cease to be, a member or officer or representative of a fishermen’s organization or council of fishermen’s organizations, or to deprive a fisherman of his rights under this Act, and no other person shall seek by intimidation or coercion to compel or induce a fisherman to become or refrain from becoming or to cease to be a member or officer of a fishermen’s organization or council of fishermen’s organizations or to deprive a fisherman of his rights under this Act.
4(4)No buyer or buyers’ organization, and no person acting on behalf of a buyer or buyers’ organization, shall
(a) refuse to purchase fish or to continue to purchase fish from a fisherman,
(b) threaten to refuse to continue to purchase fish from or otherwise threaten a fisherman,
(c) discriminate against a fisherman in regard to the purchase of fish or any term or condition of such purchase, or
(d) intimidate or coerce or impose a pecuniary or other penalty on a fisherman,
because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.
4(5)Nothing in this section or in this Act shall be deemed to deprive a buyer or a buyers’ organization or a person acting on behalf of a buyer or buyers’ organization, of freedom to express his or its views so long as he or it does not use coercion, intimidation, threats or undue influence.
4(6)Except as expressly provided, nothing in this Act shall be interpreted to affect the right of a buyer or a buyers’ organization to refuse to purchase fish from a fisherman for proper cause.
Prohibitions respecting fishermen’s organization and council of fishermen’s organizations concerning buyers’ organization and buyers
5(1)No fishermen’s organization or council of fishermen’s organizations and no person acting on behalf of a fishermen’s organization or council of fishermen’s organizations shall
(a) participate in, or interfere with, the formation, selection or administration of a buyers’ organization or the representation of a buyer by a buyers’ organization or contribute financial or other support to a buyers’ organization, or
(b) impose any condition in a collective agreement seeking to restrain or deprive a buyer from exercising his rights under this Act to become or to refrain from becoming or to cease to be a member of a buyer’s organization.
5(2)No fishermen’s organization or council of fishermen’s organizations and no person acting on behalf of a fishermen’s organization or council of fishermen’s organizations, shall seek by intimidation, by coercion, by threats, by the imposition of any pecuniary or other penalty, by undue influence or any other means, to compel or induce a fisherman or other person to become or to refrain from becoming, or to cease to be, a member or officer of a fishermen’s organization or council of fishermen’s organizations, or to deprive a fisherman or other person of his rights under this Act.
5(3)No fishermen’s organization or council of fishermen’s organizations and no person acting on behalf of a fishermen’s organization or council of fishermen’s organizations shall
(a) discriminate against a person in regard to the purchase of fish or a term or condition of the purchase of fish,
(b) intimidate or coerce or impose a pecuniary or other penalty on a person,
because of a belief that he may testify in a proceeding under this Act or because he has made or is about to make a disclosure that may be required of him in a proceeding under this Act or because he has made an application or filed a complaint under this Act or because he has participated or is about to participate in a proceeding under this Act.
5(4)Nothing in this Act shall be deemed to deprive a fishermen’s organization, a council of fishermen’s organizations or a person acting on behalf of a fishermen’s organization or council of fishermen’s organizations, of freedom to express its or his views so long as it or he does not use coercion, intimidation, threat or undue influence.
Other prohibitions, expulsion, suspension or penalty
6(1)No buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or other person shall use coercion or intimidation of any kind with a view to encouraging or discouraging membership in, or activity in or for, a buyer’s organization.
6(2)No fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization or other person shall use coercion or intimidation of any kind with a view to encouraging or discouraging membership in, or activity in or for a fishermen’s organization.
6(3)No buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations or other person shall seek to influence the manner in which a fisherman may vote, in any vote taken under this Act, by intimidation or coercion or by giving, or offering to give, money or any other valuable consideration.
6(4)No buyers’ organization, fishermen’s organization, council of fishermen’s organizations or other person shall seek to influence the manner in which a buyer may vote, in any vote taken under this Act, by intimidation or coercion.
6(5)No buyer or buyers’ organization, and no person acting on behalf of the buyer or buyer’s organization, shall, so long as a fishermen’s organization or council of fishermen’s organizations continues to be entitled to represent the fishermen in a bargaining unit, bargain with or enter into a collective agreement with any person or another fishermen’s organization or council of fishermen’s organizations on behalf of, or designed or intended to be binding upon, the fishermen in the bargaining unit or any of them, and, if entered into, any such agreement is void.
6(6)No fishermen’s organization or council of fishermen’s organizations and no person acting on behalf of the fishermen’s organization or council of fishermen’s organizations, shall, so long as another fishermen’s organization or council of fishermen’s organizations continues to be entitled to represent the fishermen in a bargaining unit, bargain with or enter into a collective agreement with a buyer or buyer’s organization on behalf of, or designed or intended to be binding upon, the fishermen in the bargaining unit or any of them, and, if entered into, any such agreement is void.
6(7)No buyers’ organization, and no person acting on behalf of the buyers’ organization, shall expel or suspend or impose a pecuniary or other penalty on a member of the buyers’ organization for the reason that the member refused to participate in or to continue to participate in a boycott contrary to the provisions of this Act.
6(8)No fishermen’s organization, and no person acting on behalf of the fishermen’s organization, shall expel or suspend or impose a pecuniary or other penalty on a member of the fishermen’s organization for the reason that the member refused to participate in or to continue to participate in a boycott contrary to the provisions of this Act.
6(9)No council of fishermen’s organizations, and no person acting on behalf of the council or of a fishermen’s organization, shall expel or suspend or impose a pecuniary or other penalty on a member or affiliate of the council for the reason that the member or affiliate refused to participate in or to continue to participate in a boycott contrary to the provisions of this Act.
Required membership in fishermen’s organization, refusal to buy fish from fishermen
7(1)Notwithstanding anything in this Act, the parties to a collective agreement may include in the agreement provisions for requiring, as a condition of purchasing fish, membership in the fishermen’s organization that is a party to or is bound by the agreement, granting a preference for the purchase of fish to members of the fishermen’s organization, or requiring the payment of dues or contributions to the fishermen’s organization.
7(2)Where a person is required by the terms of a collective agreement to be a member of a specified fishermen’s organization, his membership or application for membership shall not be affected by any terms or conditions not applicable to other members.
7(3)No fishermen’s organization that is a party to or bound by a collective agreement, containing a provision mentioned in subsection (1), shall require the buyer to refuse to purchase fish from a fisherman where such fisherman has been expelled or suspended from membership, or denied membership in the fishermen’s organization where
(a) the reason for the expulsion, suspension or denial of membership is that the fisherman was or is a member of another fishermen’s organization, or has engaged in activity against a fishermen’s organization or on behalf of another fishermen’s organization, or
(b) the fisherman has been discriminated against by the fishermen’s organization in the application of its membership rules in circumstances where the fisherman is qualified to engage in fishing and is otherwise eligible for membership.
7(4)Subsection (3) does not apply to a fisherman who is engaged in unlawful activity against the fishermen’s organization mentioned in subsection (1) or an officer or representative thereof, or whose activity against the fishermen’s organization or on behalf of another fishermen’s organization has been instigated or procured by the buyer or a person acting on behalf of the buyer, or where the buyer or person acting on behalf of the buyer has participated in such activity or contributed financial or other support to the fisherman in respect to such activity.
7(5)Notwithstanding anything in this Act, where the parties to a collective agreement have included in it any of the provisions permitted by subsection (1), any of such provisions may be continued in effect during the period when the parties are bargaining with a view to the renewal or revision of the agreement or to the making of a new agreement.
7(6)Notwithstanding anything in this Act, where the parties to a collective agreement have included in it any of the provisions permitted by subsection (1) and the buyer who was a party to or was bound by the agreement sells his business within the meaning of section 49, any of such provisions, as were included in the collective agreement, may be continued in effect during the period when the person to whom the business was sold and the fishermen’s organization or council of fishermen’s organizations, that is the bargaining agent for the fishermen in the appropriate bargaining unit by reason of a sale, bargain with a view to making a new agreement.
7(7)Nothing in subsection (5) or (6) affects the application of section 31.
7(8)No buyer, and no person acting on behalf of a buyer, shall refuse to buy fish from or otherwise discriminate against a fisherman within the meaning of this section when he has reasonable grounds for believing that membership was not available to the fisherman on the same terms and conditions generally applicable to other members or when he has reasonable grounds for believing that membership, subject to subsection (4), was denied, suspended or terminated for a reason specified in subsection (3).
Effects and obligations respecting assignments
8(1)Every buyer shall honour a written assignment to a fishermen’s organization certified as bargaining agent for a unit of fishermen, of money due and owing to a fisherman for the purchase of fish.
8(2)An assignment pursuant to subsection (1) shall be substantially in the following form:
To (name of buyer)
I hereby authorize you to deduct from money in your hands to my credit and to remit to (name of fishermen’s organization) dues in the following amount:
(1) Dues in the amount of $. . . . . .
(2) Dues of $. . . . . . . per . . . . . .
8(3)Unless the assignment is revoked in writing pursuant to subsection (4), the buyer shall remit the dues deducted to the fishermen’s organization named in the assignment at least once each month, together with a written statement of the names of the fishermen from whom the deductions were made, and the amount of each deduction.
8(4)Subject to the provisions of a collective agreement, an assignment pursuant to subsection (2) shall continue in effect for a minimum period of three consecutive months and thereafter the fisherman may revoke such assignment at any time by delivering to the buyer a revocation in writing.
8(5)If an assignment is revoked pursuant to subsection (4), the buyer shall give notice thereof to the fishermen’s organization.
8(6)Notwithstanding anything contained in subsections (1) to (5), there shall be no financial responsibility on the part of a buyer for dues of a fisherman unless there is sufficient unpaid money to the credit of that fisherman in the hands of the buyer.
1987, c.6, s.31
CERTIFICATION OF BARGAINING AGENT
1987, c.6, s.31
Application for certification
9(1)A fishermen’s organization claiming to have as members in good standing a majority of fishermen in a unit appropriate for collective bargaining who supply fish to one or more buyers in a unit appropriate for collective bargaining may, subject to the rules of the Board, make application to the Board to be certified as bargaining agent of the fishermen in the unit.
9(2)Where no collective agreement is in force and no bargaining agent has been certified under this Act for the fisherman in the unit, an application may, subject to section 10, be made at any time for certification as bargaining agent of the fishermen in the unit.
9(3)Where no collective agreement is in force but a bargaining agent has been certified under this Act for the fishermen in the unit and where no declaration has been made by the Board that the fishermen’s organization no longer represents the fishermen in the bargaining unit, another fishermen’s organization may, subject to section 10, apply to the Board for certification as bargaining agent of any of the fishermen in the bargaining unit determined in the certificate only after the expiry of twelve months from the date of the certificate, or only after the expiry of twelve months from the date of the termination of a collective agreement when section 19 applies.
9(4)Where a collective agreement for a term of not more than three years is in force, another fishermen’s organization may, subject to section 10, apply to the Board for certification as bargaining agent of any of the fishermen in the bargaining unit defined in the agreement only after the commencement of the last two months of its operation.
9(5)Where a collective agreement for a term of more than three years is in force, another fishermen’s organization may, subject to section 10, apply to the Board for certification as bargaining agent of any of the fishermen in the bargaining unit defined in the agreement only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation.
9(6)Where a collective agreement referred to in subsection (4) or (5) provides that it will continue to operate for a further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal or revision of the agreement or to the making of a new agreement, another fishermen’s organization may, subject to section 10, apply to the Board for certification as bargaining agent of any of the fishermen in the bargaining unit defined in the agreement during the further term or successive terms only during the last two months of each year that it so continues to operate or after the commencement of the last two months of its operation.
9(7)Where the Board is of the opinion that the fishermen in a unit or their buyer, or both, would suffer substantial and irremediable damage or loss if it did not entertain an application under subsection (1) at a time other than as authorized in subsection (4), (5) or (6), and that it is not reasonable in the circumstances that the fishermen or the buyer, as the case may be, should suffer that damage or loss, an application under this section may be made at any time.
Case where application for certification cannot be made
10(1)Subject to subsection (3), where a fishermen’s organization has not made a collective agreement within one year after its certification or within one year after the date of the termination of a collective agreement when section 19 applies, and the Minister has appointed a conciliation officer or appointed a mediator under section 59, no application for certification of a bargaining agent of the fishermen in the bargaining unit determined in the certificate shall be made until
(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board,
(b) thirty days have elapsed after the Minister has released to the parties a notice that he does not deem it advisable to appoint a conciliation board, or
(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer or the mediator that the differences between the parties concerning the terms of a collective agreement have been settled,
as the case may be.
10(2)Where notice has been given under section 29 with a view to the renewal or revision of a collective agreement then in operation or to the making of a new agreement and the Minister has appointed a conciliation officer or appointed a mediator under section 59, no application for certification of a bargaining agent of any of the fishermen in the bargaining unit as defined in the collective agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed the conciliation officer or the mediator, whichever is later, unless, following the appointment of the conciliation officer or the mediator, if no collective agreement has been made,
(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or the mediator,
(b) a conciliation board has been appointed and thirty days have elapsed after the report of the conciliation board has been released by the Minister to the parties, or
(c) thirty days have elapsed after the Minister has informed the parties that he does not deem it desirable to appoint a conciliation board,
whichever is later.
10(3)Where a fishermen’s organization has given notice under section 28 with a view to the making of a collective agreement and the fishermen in the bargaining unit on whose behalf the fishermen’s organization was certified as bargaining agent thereafter engage in a lawful boycott or the buyer or buyers’ organization lawfully boycotts, no application for certification of a bargaining agent of any of the fishermen in the bargaining unit determined in the certificate shall be made
(a) until six months have elapsed after the boycott commenced, or
(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or a notice that the Minister does not deem it advisable to appoint a conciliation board,
whichever occurs first.
Joint application by several fishermen’s organizations
11Two or more fishermen’s organizations, claiming to have as members in good standing a majority of fishermen in a unit that is appropriate for collective bargaining, may join in an application under this section and the provisions of this Act relating to an application by a fishermen’s organization and all matters or things arising therefrom shall apply in respect of this joint application and the fishermen’s organizations as if it were an application by one fishermen’s organization.
Determination of appropriate bargaining unit
12(1)Upon an application for certification as bargaining agent for fishermen in a unit, the Board shall determine the unit of fishermen and buyers that is appropriate for collective bargaining by reference to
(a) a geographic area, notwithstanding the number of buyers in such area, and
(b) inshore or midshore fishermen supplying fish to one or more buyers in the geographic area,
and the Board may, before determining the unit, take such steps as it deems appropriate for the purpose of ascertaining the wishes of the fishermen as to the appropriateness of the unit, and may, if it deems it appropriate to do so, include additional fishermen in or exclude fishermen from the unit for which the application was made.
12(2)The Board, in determining the appropriate unit of fishermen and buyers for collective bargaining, may designate one unit of inshore fishermen and one unit of midshore fishermen, where applicable, in each of the defined geographic areas, for each of the species or group of species specified in the regulations.
12(3)The Board, in determining whether a fisherman is an inshore or midshore fisherman or whether a group of fishermen belongs to the inshore or midshore category, shall have regard to the community of interest of each category in accordance with the following criteria listed in order of priority:
(a) species of fish sought;
(b) types of fishing gear used;
(c) overall length of fishing vessels;
(d) location of fishing grounds; and
(e) average duration of fishing voyages.
12(4)The Board, in determining the inclusions or the exclusions from the unit, may take into account the involvement of an individual fisherman or group of fishermen in commercial fishing activities on a regular basis or their involvement in other full-time occupations during a regular fishing season.
Representation vote
13(1)When, pursuant to an application for certification under this Act by a fishermen’s organization, the Board has determined that a unit of fishermen is appropriate for collective bargaining, the Board shall ascertain the number of fishermen in the bargaining unit at the date the application was made and the number of fishermen in the unit who were members of the fishermen’s organization at the date the application was made.
13(2)If the Board is satisfied that not less than forty per cent of the fishermen in the bargaining unit are members in good standing of the fishermen’s organization, the Board shall direct that a representation vote be taken.
13(3)If, on the taking of a representation vote, the majority of the votes cast are in favour of the applicant fishermen’s organization, the Board shall, subject to subsection (4), certify the fishermen’s organization as the bargaining agent of the fishermen in the bargaining unit.
13(4)If, on the taking of a representation vote, the Board is satisfied that less than sixty per cent of the eligible fishermen in the bargaining unit have cast their ballots in the vote, the Board shall dismiss the application for certification.
13(5)If, on any application to which this section refers, the Board is satisfied that more than fifty per cent of the fishermen in the bargaining unit are members in good standing of the fishermen’s organization, and where, in the opinion of the Board, a buyer or buyers’ organization has contravened this Act or regulations made pursuant to this Act in so significant a way that the representation vote does not reflect the true wishes of the fishermen in the bargaining unit determined to be appropriate for collective bargaining, and, in the opinion of the Board, the applicant fishermen’s organization, at the date of the filing of the application for certification, had as members in good standing not less than fifty per cent of the fishermen in the unit, the Board may, in its discretion, certify the fishermen’s organization as bargaining agent of the fishermen in the unit.
Pre-hearing representation vote
14(1)Upon an application for certification, the fishermen’s organization may request that a pre-hearing representation vote be taken.
14(2)Upon a request made under subsection (1), the Board shall determine a voting constituency and, if it appears to the Board on an examination of the records of the fishermen’s organization and the records of the buyers, that not less than forty per cent of the fishermen in the voting constituency were members of the fishermen’s organization at the time the application was made, the Board shall direct that a representation vote be taken among the fishermen in the voting constituency.
14(3)The Board may direct that the ballot boxes containing the ballots cast in a representation vote taken under subsection (2) be sealed and that the ballots not be counted until the parties have been given full opportunity to present evidence and make representations.
14(4)Where a representation vote has been taken under subsection (2), the Board shall determine the unit of fishermen that is appropriate for collective bargaining and, if it is satisfied that not less than forty per cent of the fishermen in the bargaining unit were members of the fishermen’s organization at the time the application was made, the representation vote taken under subsection (2) has the same effect as a representation vote taken under section 13(2).
Membership in good standing
15(1)Membership in good standing for the purposes of section 13 shall be determined in accordance with such rules as the Board may prescribe, subject to this section.
15(2)Where the Board is satisfied that a fishermen’s organization has an established practice of admitting persons to membership without regard to the eligibility requirements of its charter, constitution or by-laws, the Board, in determining whether a person is a member of the fishermen’s organization, shall not consider those eligibility requirements.
15(3)Where the Board is satisfied that a fisherman has made application in writing for membership in the fishermen’s organization, the expression “member” or “member in good standing” shall include a person who has paid to the fishermen’s organization on his own behalf an amount of at least one dollar in respect of dues or monthly or other periodic dues of the organization.
1985, c.4, s.27
Participation of buyer in formation of fishermen’s organization
16The Board shall not certify a fishermen’s organization if, contrary to the provisions of this Act, any buyer or buyers’ organization has participated in its formation, selection or administration or has contributed financial or other support to it, and, if entered into, a collective agreement between such fishermen’s organization and buyer or buyers’ organization, is void.
Application for accreditation by council of fishermen’s organization
17(1)Sections 9, 10, 12 to 16 and 18 apply mutatis mutandis to an application for certification by a council of fishermen’s organizations, but before the Board certifies such a council as bargaining agent for the fishermen in the bargaining unit, the Board shall satisfy itself that each of the fishermen’s organizations that is a constituent organization of the council has vested appropriate authority in the council to enable it to discharge the responsibilities of a bargaining agent.
17(2)Where the Board is of the opinion that appropriate authority has not been vested in the applicant, the Board may postpone disposition of the application to enable the constituent fishermen’s organizations to vest such additional or other authority as the Board deems necessary.
17(3)For the purposes of sections 13 and 14, a person who is a member of any constituent fishermen’s organization of a council shall be deemed by the Board to be a member of the council.
Where Board must reject application
18Where the Board is satisfied that a fishermen’s organization is not entitled to be certified under this Act, it shall reject the application, and may designate the length of time that must elapse before a new application will be considered from the same applicant.
EFFECT OF CERTIFICATION
Effect of certification
19(1)Where a fishermen’s organization is certified under this Act as the bargaining agent of the fishermen in a unit,
(a) the fishermen’s organization shall immediately replace any other bargaining agent of fishermen in the unit, and shall have exclusive authority to bargain collectively on behalf of fishermen in the unit and to bind them by a collective agreement with the buyer or buyers named on the certification order until the certification of the fishermen’s organization in respect of the fishermen is revoked,
(b) if another fishermen’s organization had previously been certified as bargaining agent in respect to fishermen in the unit, the certification of the last-mentioned fishermen’s organization shall be deemed to be revoked in respect of such fishermen,
(c) if, at the time of certification, a collective agreement that is binding on or that was entered into on behalf of fishermen in the unit is in force, the fishermen’s organization shall be substituted as a party to the agreement in place of the bargaining agent that is a party of the agreement on behalf of the fishermen in the unit,
(d) the certification shall apply to all buyers described in the certification order and all buyers thereafter purchasing the species of fish described in the certification order within the geographic area for which the fishermen’s organization was certified unless specifically excluded.
19(2)Where a fishermen’s organization is substituted as a party to a collective agreement under this section, the collective agreement, in so far as it applies to the fishermen in the unit for which the fishermen’s organization was certified, notwithstanding anything in the agreement or in the Act, may be terminated
(a) at any time by the mutual consent of the parties,
(b) when the agreement provides for a term of one year, at any time after the agreement has been in force for ten months, if written notice is given by the fishermen’s organization,
(c) when the agreement provides for a term of more than one year and less than the term in paragraph (d) and the agreement has been in force for one year, at the end of the second year or at the end of the term, if two months notice in writing is given by the fishermen’s organization preceding the anniversary date of the agreement or before the end of the term,
(d) when the agreement provides for a term of three years or more, at the end of the second or subsequent year that the agreement has been in force or at the end of the term, if two months notice in writing is given by the fishermen’s organization preceding the anniversary date of the agreement or before the end of the term, or
(e) when the agreement provides for the continuation of the agreement from year to year, and the agreement has been in force for ten months, at the end of the first or subsequent year, if two months notice in writing is given by the fishermen’s organization preceding the anniversary date of the agreement.
Amending, merging certification
20(1)Where a fishermen’s organization is certified under this Act, an application may be made to the Board at any time to amend the certification
(a) to change the name of the fishermen’s organization or buyer where the name of the fishermen’s organization or buyer has been changed,
(b) to include or exclude fishermen from the unit,
(c) to include or exclude buyers from the unit, or
(d) to combine previous certification orders into one order.
20(2)Where two or more fishermen’s organizations are certified under this Act an application may be made to the Board at any time for the merging of their certificates into one consolidated certificate.
20(3)Before disposing of an application under this section, the Board may make or cause to be made such examination of records or other inquiries, including the holding of hearings, as it deems necessary, or take or supervise the taking of such votes as it deems expedient to direct, and the Board may prescribe the nature of the evidence to be furnished to the Board.
20(4)In disposing of an application under this section, the Board shall declare which collective agreements, if any, shall continue in force and to what extent they shall continue in force and which collective agreements, if any, shall terminate.
TERMINATION OF BARGAINING RIGHTS
Application for declaration that organization no longer represents members
21(1)Where a fishermen’s organization does not make a collective agreement with the buyer within one year after its certification or within one year after the date of the termination of a collective agreement when section 19 applies, any of the fishermen in the bargaining unit determined in the certificate, subject to section 27, may apply to the Board for a declaration that the fishermen’s organization no longer represents the fishermen in the bargaining unit.
21(2)Any of the fishermen in the bargaining unit defined in a collective agreement may, subject to section 24, apply to the Board for a declaration that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit,
(a) when a collective agreement for a term of not more than three years is in force, only after the commencement of the last two months of its operation,
(b) when a collective agreement for a term of more than three years is in force, only after the commencement of the thirty-fifth month of its operation and before the commencement of the thirty-seventh month of its operation and during the two-month period immediately preceding the end of each year that the agreement continues to operate thereafter or after the commencement of the last two months of its operation,
(c) when a collective agreement referred to in paragraph (a) or (b) provides that it will continue to operate for any further term or successive terms if either party fails to give to the other notice of termination or of its desire to bargain with a view to the renewal or revision of the agreement or to the making of a new agreement, only during the last two months of each year that the agreement continues to operate, or after the commencement of the last two months of its operation.
21(3)Upon an application under subsection (1) or (2), the Board shall ascertain the number of fishermen in the bargaining unit at the date the application was made and, if satisfied that the application is supported by not less than forty per cent of the fishermen in the bargaining unit at such time as is determined under section 102(2)(e), the Board shall, by a representation vote, satisfy itself whether a majority of the fishermen desire that the right of the fishermen’s organization or council of fishermen’s organizations to bargain on their behalf be terminated.
21(4)Where, on the taking of the representation vote under subsection (3), more than fifty per cent of the ballots of all those eligible to vote are cast in opposition to the fishermen’s organization or council of fishermen’s organizations, the Board shall declare that the fishermen’s organization or council of fishermen’s organizations that was certified or that was or is a party to the collective agreement, as the case may be, no longer represents the fishermen in the bargaining unit; but, if the Board is satisfied that sixty per cent of the fishermen in the bargaining unit have not cast their votes, the Board can dismiss the application.
21(5)In determining the number of eligible voters for the purpose of subsection (4), fishermen who do not cast their ballots shall not be counted as eligible.
21(6)An application under subsection (1) or (2) may be made by the buyer and subsections (1) to (5) apply mutatis mutandis if, in the application of subsection (3), the Board is satisfied that a substantial question exists as to whether the fishermen’s organization or council of fishermen’s organizations is supported by the majority of the fishermen in the unit.
21(7)An application under subsection (1) or (2) may be made by another fishermen’s organization or council of fishermen’s organizations representing any of the fishermen in the bargaining unit described in the certification or in the collective agreement and subsections (1) to (5) apply mutatis mutandis.
21(8)Where the Board is of the opinion that the fishermen in a unit or their buyer, or both, would suffer substantial and irremediable damage or loss if it did not entertain an application made by or on behalf of those fishermen or that buyer under subsection (1) or (2), and that it is not reasonable in the circumstances that the fishermen or that the buyer, as the case may be, should suffer that damage or loss, an application under this section may be made at any time.
21(9)An application under subsection (6) does not affect any obligation of the buyer to bargain collectively under the provisions of this Act, but the Board, pending disposition of the application or on disposition, may extend any time limits applicable to collective bargaining under this Act as the circumstances may require.
Certificate of accreditation obtained by fraud
22Notwithstanding anything in this Act where a fisherman’s organization or council of fishermen’s organizations has obtained a certification certificate by fraud, the Board on its own motion or upon application made by a buyer described in the certification, another fishermen’s organization or by any fishermen in the bargaining unit may at any time declare that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit.
Representation vote
23(1)Where a fishermen’s organization or council of fishermen’s organizations fails to give a buyer described in the certification order notice under section 28 within thirty days following certification or within thirty days following the date of the termination of a collective agreement when section 19 applies, or where a fishermen’s organization or council of fishermen’s organizations fails to give notice under section 29, and no such notice is given by a buyer described in the certification order, the Board may upon the application of the buyer, or another fishermen’s organization or council of fishermen’s organizations, or of any of the fishermen in the bargaining unit, and with or without a representation vote, declare that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit.
23(2)Where a fishermen’s organization or council of fishermen’s organizations that has given notice under section 28 or 29, or that has received notice under section 29, fails to commence to bargain within thirty days from the giving of the notice, or after having commenced to bargain, but before the Minister has appointed a conciliation officer or appointed a mediator under section 59, allows a period of thirty days to elapse during which it has not sought to bargain, the Board may, upon the application of a buyer described in the certification order or another fishermen’s organization or council of fishermen’s organizations, or of any of the fishermen in the bargaining unit, and with or without a representation vote, declare that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit.
23(3)The fishermen’s organization or council of fishermen’s organizations and the buyer concerned may for the purposes of this section agree in writing to an extension of the times prescribed in subsection (1) or (2) in which event subsections (1) and (2) apply from the elapse of the extended time.
No fishermen in bargaining unit
24Where there have been no fishermen in a bargaining unit described in a certification or in a collective agreement for a period of two years, the Board, upon application of a buyer described in the certification order, may at any time thereafter declare that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit.
Where organization no longer desires to represent fishermen
25Where, upon an application made under sections 21 to 24, the fishermen’s organization or council of fishermen’s organizations concerned informs the Board that it does not desire to continue to represent the fishermen in the bargaining unit, the Board may declare that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit.
Cessation of status as certified bargaining agent
26(1)Where, upon an application made under sections 21 to 24, a declaration is made by the Board that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit, the fishermen’s organization or council of fishermen’s organizations ceases to be the certified bargaining agent, the buyer or buyers’ organization described in the certification order is not required to bargain collectively with the bargaining agent and, subject to subsection (2), any collective agreement in effect between the fishermen’s organization or council of fishermen’s organizations and the buyer that is binding upon the fishermen in the bargaining unit ceases to operate forthwith.
26(2)Upon a declaration made by the Board under section 22 that a fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit, the fishermen’s organization or council of fishermen’s organizations is not entitled to claim any rights or privileges flowing from certification and, if it has made a collective agreement binding upon the fishermen in the bargaining unit, the collective agreement is void from the commencement date of the agreement.
26(3)Where, under sections 21 to 25, a declaration is made by the Board that a fishermen’s organization or council of fishermen’s organizations no longer represents a fisherman in the bargaining unit, the fishermen’s organization or council of fishermen’s organizations, subject to the provisions of this Act, may at any time make application to be certified as bargaining agent for the same unit of fishermen, in whole or in part.
Exceptions and conditions respecting application for declaration that organization no longer represents unit
27(1)Subject to subsection (3), where a fishermen’s organization or council of fishermen’s organizations has not made a collective agreement within one year after its certification or within one year after the date of the termination of a collective agreement when section 19 applies and the Minister has appointed a conciliation officer or appointed a mediator under section 51, no application for a declaration that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit determined in the certificate shall be made until
(a) thirty days have elapsed after the Minister has released to the parties the report of a conciliation board,
(b) thirty days have elapsed after the Minister has released to the parties a notice that he does not deem it advisable to appoint a conciliation board, or
(c) six months have elapsed after the Minister has released to the parties a notice of a report of the conciliation officer or mediator that the differences between the parties concerning the terms of a collective agreement have been settled,
as the case may be.
27(2)Where notice has been given under section 29 with a view to the renewal or revision of a collective agreement then in operation or to the making of a new agreement and the Minister has appointed a conciliation officer or appointed a mediator under section 51, no application for a declaration that the fishermen’s organization or council of fishermen’s organizations that was a party to the collective agreement no longer represents the fishermen in the bargaining unit as defined in the agreement shall be made after the date when the agreement ceased to operate or the date when the Minister appointed the conciliation officer or mediator whichever is later, unless, following the appointment of the conciliation officer or mediator, if no collective agreement has been made,
(a) at least twelve months have elapsed from the date of the appointment of the conciliation officer or mediator,
(b) a conciliation board has been appointed and thirty days have elapsed after the report of the conciliation board has been released by the Minister to the parties, or
(c) thirty days have elapsed after the Minister has informed the parties that he does not deem it advisable to appoint a conciliation board,
whichever is later.
27(3)Where a fishermen’s organization or council of fishermen’s organizations has given notice under section 28 with the view to making an agreement and the fishermen in the bargaining unit on whose behalf the fishermen’s organization or council of fishermen’s organizations was certified as bargaining agent thereafter engage in a lawful boycott or the buyer or buyers’ organization engages in a lawful boycott, no application for a declaration that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in the bargaining unit determined in the certificate shall be made
(a) until six months have elapsed after the boycott commenced, or
(b) until seven months have elapsed after the Minister has released to the parties the report of the conciliation board or a notice that the Minister does not deem it advisable to appoint a conciliation board,
whichever occurs first.
COLLECTIVE BARGAINING
Collective bargaining where no agreement in force
28Where the Board has under this Act certified a fishermen’s organization or council of fishermen’s organizations as a bargaining agent of fishermen in a unit and no collective agreement with a buyer named in the certification order binding on or entered into on behalf of fishermen in the unit, is in force,
(a) the bargaining agent may, on behalf of the fishermen in the unit, by notice in writing, require the buyer or buyers’ organization named in the certification order to commence collective bargaining, or
(b) the buyer or buyers’ organization representing the buyer may, by notice in writing, require the bargaining agent to commence collective bargaining,
with a view to the conclusion of a collective agreement.
Notice of intention to bargain, Powers of Board
29(1)Either party to a collective agreement may, within the period of the ninetieth and thirtieth day before the expiry date of the agreement, give notice in writing to the other party of its desire to bargain with a view to the renewal or revision of the agreement then in operation or to the making of a new agreement.
29(2)Where the provisions of a collective agreement relating to its termination or renewal or revision prescribe a period of notice that is longer than the period required under subsection (1), a notice, if given by a party to the agreement in accordance with the provisions thereof, shall be deemed a compliance with subsection (1).
29(3)Upon an application being made by or on behalf of fishermen affected by a collective agreement that has been renewed, revised, or replaced by a new collective agreement upon less than the notice prescribed in subsection (1), the Board may require the parties to the new agreement, or any of them, to show cause why a fishermen’s organization or council of fishermen’s organizations that is not a party to the new agreement should not be permitted to apply to be certified as the bargaining agent for the fishermen affected in place of the fishermen’s organization or council of fishermen’s organizations that is a party to the agreement and the Board, notwithstanding anything in this Act, may make such order with respect to the matter as it may deem just and reasonable, including permitting the fishermen’s organization or council of fishermen’s organizations that is not a party to the agreement to apply to be certified as the bargaining agent for the fishermen in the bargaining unit and the cancellation of the renewed, revised or new agreement.
29(4)Where notice is given by or to a buyers’ organization that has a collective agreement with a fishermen’s organization or council of fishermen’s organizations, it shall be deemed to be a notice given by or to each member of the buyers’ organization who is bound by the agreement or who has ceased to be a member of the buyers’ organization but has not notified the fishermen’s organization or council of fishermen’s organizations in writing that he has ceased to be a member.
Commencement of negotiations
30(1)Where notice to commence collective bargaining has been given under section 28, the certified bargaining agent and the buyer, or the buyers’ organization representing the buyer named in the notice shall, without delay, but in any case within twenty days after the notice was given, or such further time as the parties may agree, meet and commence or cause authorized agents on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude a collective agreement.
30(2)Where a party to a collective agreement has given notice under section 29 to the other party to the agreement, the parties shall, without delay, but in any case within twenty days after the notice was given, or such further time as the parties may agree upon, meet and commence or cause authorized agents on their behalf to meet and commence to bargain collectively and make every reasonable effort to conclude a renewal or revision of the agreement or a new agreement.
30(3)Where collective bargaining has been substantially entered into under subsection (1) or (2), a party so bargaining collectively shall not discontinue, or withdraw from, the collective bargaining on the ground that no notice, or improper or insufficient notice, has been given under section 28 or 29.
30(4)Where a buyers’ organization commences to bargain with a fishermen’s organization or council of fishermen’s organizations, it shall deliver to the fishermen’s organization or council of fishermen’s organizations, and to each buyer therein named, a list of the names of the buyers on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all the members of the buyers’ organization who are buying fish from the fishermen for whom the fishermen’s organization or the council of fishermen’s organizations is entitled to bargain and to make a collective agreement at that time, except a buyer who, either by himself or through the buyers’ organization, has within fourteen days of the commencement of bargaining notified the fishermen’s organization or council of fishermen’s organizations in writing that the buyers’ organization is not authorized to bargain collectively on behalf of the buyer named in the notification.
30(5)Where a council of fishermen’s organizations, other than a certified council of fishermen’s organizations, commences to bargain with a buyer or buyers’ organization, it shall deliver to the buyer or buyers’ organization, and to each fishermen’s organization therein named, a list of the names of fishermen’s organizations on whose behalf it is bargaining and, in default of so doing, it shall be deemed to bargain for all members or affiliates of the council of fishermen’s organizations and for all fishermen for whom the respective fishermen’s organizations are entitled to bargain and to make a collective agreement at that time with the buyer or the buyers’ organization, except a fishermen’s organization that, either by itself or through the council of fishermen’s organizations, has within fourteen days of the date of the commencement of bargaining notified the buyer or the buyers’ organization in writing that the council of fishermen’s organizations is not authorized to bargain collectively on behalf of the fishermen’s organization named in the notification.
30(6)Where a list is delivered or a notification given under subsection (4) or (5), a copy thereof shall be delivered or given to the Board within the time prescribed and, on default, the Board may by order require the delivery of a copy of the list or of the notification.
Increase or decrease in pricing, arbitration
31(1)Where a fishermen’s organization or council of fishermen’s organizations has applied for certification and notice thereof from the Board has been received by a buyer or buyers’ organization, no buyer or buyers’ organization described in the application shall, except with the consent of the fishermen’s organization or council of fishermen’s organizations, increase or decrease the price paid for fish to those fishermen or the price at which any necessary fishing supplies are sold to those fishermen, for the purpose of compelling the fishermen to accept certain conditions related to the purchase of fish, or alter the rights, privileges or duty of the buyer or the fishermen until
(a) the fishermen’s organization has given notice under section 28, in which case subsection (2) applies, or
(b) the application for certification by the fishermen’s organization or council of fishermen’s organizations is dismissed or terminated by the Board or withdrawn by the fishermen’s organization or council of fishermen’s organizations.
31(2)Where notice has been given under section 28 or 29 and no collective agreement is in operation, no buyer or buyers’ organization named in the notice shall, except with the consent of the fishermen’s organization or council of fishermen’s organizations, increase or decrease the price paid for fish to fishermen in relation to whom the notice to bargain has been given or the price at which any necessary fishing supplies are sold to such fishermen or any right, privilege or duty of the buyer, the buyers’ organization, the fishermen’s organization, the council of fishermen’s organizations or the fishermen until a collective agreement or a renewal or revision of the agreement or a new agreement has been concluded or one of the following conditions has been met:
(a) until a party has requested the Minister to instruct a conciliation officer to confer with the parties and seven days have elapsed from the date on which the Minister has released to the parties a notice under subsection 32(3) that he does not deem it advisable to appoint a conciliation officer or to appoint a mediator under section 51,
(b) until, where the Minister has appointed a conciliation officer or a mediator to confer with the parties, fourteen days have elapsed after the Minister has released to the parties a notice that he does not deem it advisable to appoint a conciliation board,
(c) until, where the Minister has appointed a conciliation board, fourteen days have elapsed after the Minister has released to the parties the report of the conciliation board, or
(d) until the right of the fishermen’s organization or council of fishermen’s organizations to represent the fishermen has been terminated,
whichever occurs first.
31(3)Where notice has been given under section 29 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (2) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation with the reference made thereunder and section 36 applies mutatis mutandis thereto.
Conciliation officer, conciliation board, mediator
32(1)Where a notice to commence collective bargaining has been given under section 28 or 29, and
(a) collective bargaining has not commenced within the time prescribed under this Act, or
(b) collective bargaining has commenced,
and either party thereto requests the Minister in writing to instruct a conciliation officer to confer with the parties thereto to assist them to conclude a collective agreement or a renewal or revision thereof and such request is accompanied by a statement of the difficulties, if any, that have been encountered before the commencement or in the course of the collective bargaining, or in any other case in which in the opinion of the Minister it is advisable so to do, the Minister may appoint one or more conciliation officers to confer with the parties engaged in collective bargaining.
32(2)Where a conciliation officer fails to bring about an agreement between parties engaged in collective bargaining, or in any other case where in the opinion of the Minister a conciliation board should be appointed to endeavour to bring about agreement between parties to a dispute, the Minister may appoint a conciliation board for such purpose.
32(3)Where the Minister receives a request to appoint a conciliation officer under subsection (1), he shall, within seven days of receiving the request, send to the parties a notice as to whether he deems it advisable to appoint a conciliation officer.
32(4)Where the Minister has received the report of a conciliation officer appointed under subsection (1) and a subsequent request by a party to appoint a conciliation board under subsection (2) he shall, within fifteen days of receiving the request, send to the parties a notice as to whether he deems it advisable to appoint a conciliation board.
32(5)The Minister, in any case to which subsection (1) applies, may appoint a mediator under section 59.
32(6)Notwithstanding anything in this Act, where the Minister has appointed a conciliation officer or a mediator under this section and the parties have failed to enter into a collective agreement within fifteen months from the date of such appointment, the Minister may, upon the joint request of the parties, again appoint a conciliation officer or a mediator to confer with the parties and endeavour to effect a collective agreement, and, upon such appointment being made, all provisions of this Act relating to or regulating a first appointment of a conciliation officer, mediator, or conciliation board appointed under this section and all provisions prescribing any such appointment as a requirement or condition, or prescribing the effect of any such appointment under this Act, shall apply mutatis mutandis, but such appointment is not a bar to an application for certification or for a declaration that the fishermen’s organization no longer represents the fishermen in the bargaining unit.
32(7)Notwithstanding the failure of a fishermen’s organization or council of fishermen’s organizations to give written notice under section 28, or the failure of either party to give written notice under section 29, where the parties have met and bargained, the Minister may appoint a conciliation officer, a mediator, or a conciliation board in any case to which subsection (1), (2), or (5) applies.
Execution of collective agreement
33(1)Where persons who are bargaining collectively have agreed upon the terms to be contained in the collective agreement, they shall forthwith commit the terms of the collective agreement to writing and, if ratification or approval is required, cause the agreement to be referred to their respective parties for ratification or approval.
33(2)Where the parties who are bargaining collectively have agreed upon the terms to be contained in the collective agreement, or pursuant to subsection (1) have ratified or approved the terms, the parties shall forthwith execute and deliver, each to the other, a true copy of the collective agreement so executed.
33(3)Where a collective agreement has been executed under subsection (2), each party thereto shall file a copy of the collective agreement with the Minister and with the Board.
33(4)Where a collective agreement within subsection (3) is revised during its term under the provisions of this Act, each party thereto shall file a copy of the revisions with the Minister and with the Board.
33(5)A collective agreement filed under subsection (3) by a council of fishermen’s organizations or by a buyers’ organization shall be deemed to be filed by each of the parties bound by the agreement.
33(6)A failure to comply with subsection (3) or (4) does not invalidate any proceedings under the collective agreement or under this Act.
ACCREDITATION OF
BUYERS’ ORGANIZATION
Application for accreditation as bargaining agent
34Where a fishermen’s organization or council of fishermen’s organizations has been certified as the bargaining agent for a unit of fishermen supplying fish to more than one buyer or where a fishermen’s organization or council of fishermen’s organizations has entered into collective agreements with more than one buyer, a buyers’ organization may apply to the Board to be accredited as the bargaining agent for all the buyers who buy fish from fishermen for whom the fishermen’s organization or council of fishermen’s organization has bargaining rights.
Determination of appropriate bargaining unit
35(1)Upon an application for accreditation, the Board shall determine the unit of buyers that is appropriate for collective bargaining.
35(2)The unit of buyers appropriate for collective bargaining shall include all buyers who purchase fish from fishermen for whom a fishermen’s organization, or council of fishermen’s organizations affected by the application has bargaining rights.
Duties of Board before agreeing to buyers’ organization
36(1)Upon an application for accreditation under section 34, the Board shall ascertain
(a) the number of buyers in the unit of buyers on the date of the application who have within one year prior to such date had fishermen, for whom the fishermen’s organization or council of fishermen’s organizations has bargaining rights, supplying fish to them,
(b) the number of buyers referred to in paragraph (a), represented by the buyers’ organization on the date of the application,
(c) the quantity of all fish supplied to the buyers by the fishermen referred to in paragraph (a) during the last calendar year immediately preceding the date of the application or such other calendar year or twelve month period as the Board considers advisable.
36(2)The Board, if satisfied
(a) that the majority of the buyers referred to in paragraph (1)(a) are represented by the buyers’ organization and such majority of buyers bought more than one-half of all the fish supplied by the fishermen referred to in paragraph (1)(a) during the previous calendar year or such other calendar year or twelve-month period as the Board considers advisable, or
(b) that the buyers’ organization represents a group of buyers who bought more than two-thirds of all the fish supplied by the fishermen referred to in paragraph (1)(a) during the previous calendar year or such other calendar year or twelve-month period as the Board considers advisable,
shall, subject to subsection (3), accredit the buyers’ organization as the bargaining agent of the buyers in the unit of buyers.
36(3)Before accrediting a buyers’ organization under subsection (2), the Board shall satisfy itself that the buyers’ organization is a properly constituted organization and that each of the buyer members whom it represents has vested appropriate authority in the organization to enable it to discharge the responsibilities of an accredited bargaining agent.
36(4)Where the Board is of the opinion that appropriate authority has not been vested in the buyers’ organization, the Board may postpone disposition of the application to enable buyers represented by the organization to vest such additional or other authority in the organization as the Board considers necessary.
36(5)The Board shall not accredit any buyers’ organization if any fishermen’s organization or council of fishermen’s organizations has participated in its formation, selection or administration or has contributed financial or other support to it.
Effect of accreditation
37(1)Upon the accreditation of a buyers’ organization, all rights, duties and obligations under this Act of buyers for whom the accredited buyers’ organization is or becomes the bargaining agent apply mutatis mutandis to the accredited buyers’ organization.
37(2)Upon the accreditation of a buyers’ organization, any collective agreement in operation between the fishermen’s organization or council of fishermen’s organizations and any buyer in paragraph 36(1)(a) is binding on the parties thereto only for the remainder of the term of operation of the agreement, regardless of any provision therein respecting its renewal or revision.
37(3)When any collective agreement mentioned in subsection (2) ceases to operate, the buyer shall thereupon be bound by any collective agreement then in existence between the fishermen’s organization or council of fishermen’s organizations and the accredited buyers’ organization or subsequently entered into by such parties.
37(4)Where, after the date of the making of an application for accreditation, a fishermen’s organization or a council of fishermen’s organizations obtains bargaining rights through certification for a fisherman who supplies fish to a buyer, that buyer is bound by any collective agreement in existence at the time of the certification between the fishermen’s organization or council of fishermen’s organizations and the applicant buyers’ organization or subsequently entered into by the parties.
37(5)A collective agreement between a fishermen’s organization or council of fishermen’s organizations and a buyer who, but for the one-year requirement, would have been included in paragraph 36(1)(a) is binding on the parties thereto only for the remainder of the term of operation of the agreement regardless of any provisions therein respecting its renewal or revision.
37(6)When any collective agreement mentioned in subsection (5) ceases to operate, the buyer shall thereupon be bound by any collective agreement then in existence between the fishermen’s organization or council of fishermen’s organizations and the accredited buyers’ organization or subsequently entered into by such parties.
37(7)Where, under the provisions of this section, a buyer becomes bound by a collective agreement between a fishermen’s organization or council of fishermen’s organizations and an accredited buyers’ organization after the agreement has commenced to operate, the agreement ceases to be binding on the buyer in accordance with the terms thereof, notwithstanding subsection 46(1).
Application of subsections 30(4) and 45(3), binding agreement
38(1)Subsection 30(4) and subsection 45(3) do not apply to an accredited buyers’ organization.
38(2)A collective agreement between an accredited buyers’ organization and a fishermen’s organization or council of fishermen’s organizations is, subject to and for the purpose of this Act, binding upon the accredited buyers’ organization and the fishermen’s organization or council of fishermen’s organizations, as the case may be, and upon each buyer in the unit of buyers represented by the accredited buyers’ organization at the time the agreement was entered into and upon such other buyers as may subsequently be bound by that agreement as if it was made between each of such buyers and the fishermen’s organization or council of fishermen’s organizations and, if any such buyer ceases to be represented by the accredited buyers’ organization during the term of operation of the agreement, the buyer shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the fishermen’s organization or council of fishermen’s organizations.
38(3)A collective agreement between an accredited buyers’ organization and a fishermen’s organization or council of fishermen’s organizations is binding on the fishermen in the bargaining unit defined in the agreement selling to any buyer bound by the collective agreement.
Application for declaration that organization no longer represents buyers, and conditions
39(1)Where an accredited buyers’ organization does not make a collective agreement with the fishermen’s organization or council of fishermen’s organizations, as the case may be, within one year after its accreditation, any of the buyers in the unit of buyers determined in the accreditation certificate may apply at any time to the Board for a declaration that the accredited buyers’ organization no longer represents the buyers in the bargaining unit.
39(2)Any of the buyers in the bargaining unit defined in a collective agreement between an accredited buyers’ organization and a fishermen’s organization or council of fishermen’s organizations, as the case may be, may apply to the Board only during the last two months of the operation of the agreement for a declaration that the accredited buyers’ organization no longer represents the buyer in the unit of buyers.
39(3)Upon an application under subsection (1) or (2), the Board shall ascertain
(a) the number of buyers in the unit of buyers on the date of the application,
(b) the number of buyers in the unit of buyers who, within the two-month period immediately preceding the date of making of the application, have voluntarily signified in writing that they no longer wish to be represented by the accredited buyers’ organization.
39(4)If the Board, on an application made under subsection (1) or (2) is satisfied that
(a) a majority of the buyers in paragraph (3)(a) has voluntarily signified in writing that they no longer wish to be represented by the accredited buyers’ organization, and
(b) the buyers who constitute the majority referred to in paragraph (a) have bought, during the calendar year immediately preceding the date of the application, or such other calendar year or twelve month period as the Board considers advisable, more than half of all the fish supplied by the fishermen affected by the accreditation,
the Board shall declare that the buyers’ organization that was accredited or that was or is a party to the collective agreement, as the case may be, no longer represents the buyers in the unit of buyers.
39(5)Where an accredited buyers’ organization does not give notice to commence to bargain within thirty days after it becomes entitled so to do following its accreditation, or where it fails to give notice under section 29, and no such notice is given by the fishermen’s organization or council of fishermen’s organizations, any of the buyers in the unit of buyers determined in the accreditation certificate or any of the fishermen in the unit or a fishermen’s organization or council of fishermen’s organizations affected by the accreditation may, with the consent of the Board, apply for a declaration that the accredited buyers’ organization no longer represents the buyers in the bargaining unit and the Board, upon the application, may upon inquiry, declare that the accredited buyers’ organization no longer represents the buyers in the bargaining unit.
39(6)Where an accredited buyers’ organization that has given notice to commence to bargain within thirty days after it became entitled so to do following its accreditation or that has given notice under section 29, or that has received notice under section 28 or 29, fails to commence to bargain within thirty days from the giving of the notice, or after having commenced to bargain, but before the Minister has appointed a conciliation officer or appointed a mediator under section 51, allows a period of thirty days to elapse during which it has not sought to bargain, any of the buyers in the unit of buyers determined in the accreditation certificate or any of the fishermen in the unit or a fishermen’s organization or council of fishermen’s organizations affected by the accreditation may, with the consent of the Board, apply for a declaration that the accredited buyers’ organization no longer represents the buyers in the bargaining unit and the Board, upon the application, may, upon inquiry, declare that the accredited buyers’ organization no longer represents the buyers in the bargaining unit.
39(7)Upon an application under subsections (1) to (6), when the buyers’ organization informs the Board that it does not desire to continue to represent the buyers in the unit of buyers, the Board may declare that the buyers’ organization no longer represents the buyers in the unit.
39(8)Upon the Board making a declaration under subsections (4) to (7) the buyers’ organization ceases to be an accredited buyers’ organization, and
(a) any collective agreement in operation between the fishermen’s organization or council of fishermen’s organizations and the buyers’ organization that is binding upon the buyers in the unit of buyers ceases to operate forthwith,
(b) all rights, duties and obligations under this Act of the buyers’ organizations revert mutatis mutandis to the individual buyers’ represented by the buyers’ organization, and
(c) the fishermen’s organization or council of fishermen’s organizations, as the case may be, is entitled to give to any buyer in the unit of buyers a written notice of its desire to bargain with a view to making a collective agreement, and such notice has the same effect as a notice under section 28.
39(9)The fishermen’s organization or council of fishermen’s organizations, as the case may be, and the accredited buyers’ organization may for the purposes of this section agree in writing to an extension of the times prescribed in subsection (1), (5) or (6) in which event subsection (1), (5) or (6) applies from the elapse of the extended time.
39(10)An application under subsection (5) or (6) by a fishermen’s organization or council of fishermen’s organizations does not affect any obligation of the fishermen’s organization or council of fishermen’s organizations to bargain collectively under the provisions of this Act, but the Board, pending disposition of the application or on disposition, may extend any time limits applicable to collective bargaining under this Act as the circumstances may require.
Collective agreement void in certain cases
40(1)No fishermen’s organization or council of fishermen’s organizations that has bargaining rights for fishermen who supply fish to the buyers represented by an accredited buyers’ organization and no such buyer, and no person acting on behalf of such buyer, fishermen’s organization or council of fishermen’s organizations shall, so long as the accredited buyers’ organization continues to be entitled to represent the buyers in a unit of buyers, bargain with each other with respect to such fishermen or enter into a collective agreement designed or intended to be binding upon such fishermen and, if entered into, any such agreement is void.
40(2)No fishermen’s organization or council of fishermen’s organizations that has bargaining rights for fishermen who supply fish to buyers represented by an accredited buyers’ organization and no such buyer, and no person acting on behalf of such buyer, fishermen’s organization or council of fishermen’s organizations shall, so long as the accredited buyers’ organization continues to be entitled to represent the buyers in a unit of buyers, enter into any agreement or understanding, oral or written, which provides for the supply of fish by fishermen during a legal boycott and any such agreement or understanding, if entered into, is void.
Organization of buyers must act in good faith
41(1)An accredited buyers’ organization, so long as it continues to be entitled to represent buyers in a unit of buyers, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the buyers in the unit, whether members of the accredited buyers’ organization or not.
41(2)An application by a buyer for membership in an accredited buyers’ organization shall not be affected by any terms or conditions not applicable to other members and membership shall not be denied or terminated except for cause which, in the opinion of the Board, is fair and reasonable.
COLLECTIVE AGREEMENTS
Mandatory provisions
42(1)Every collective agreement shall provide that the fishermen’s organization or council of fishermen’s organizations that is a party thereto is recognized as the exclusive bargaining agent of the fishermen in the bargaining unit defined therein.
42(2)Every collective agreement to which an accredited buyers’ organization is a party shall provide that the accredited buyers’ organization is recognized as the exclusive bargaining agent of the buyers for whom the buyers’ organization has been accredited.
42(3)Where a collective agreement does not contain the provision as is mentioned in subsection (1) or (2), it may be added to the agreement at any time by the Board upon the application of either party.
42(4)Every collective agreement shall include provisions, binding on the parties bound by the agreement, in regard to prices for fish supplied under the collective agreement.
Provision against boycotts
43(1)Every collective agreement shall provide that there shall be no boycotts so long as the agreement continues to operate.
43(2)Where a collective agreement does not contain such a provision as is mentioned in subsection (1), it shall be deemed to contain the following provision:
“There shall be no boycotts so long as this agreement continues to operate.”
Provision for final and binding settlement by arbitration
44(1)Every collective agreement shall provide for the final and binding settlement by arbitration or otherwise, without cessation of normal business dealings between a fisherman or a fishermen’s organization and a buyer or a buyers’ organization, of all differences between the parties to, or persons bound by, the agreement or on whose behalf it was entered into, concerning its interpretation, application, administration or an alleged violation of the agreement, including any question as to whether a matter is arbitrable.
44(2)Where a collective agreement does not contain such a provision as is mentioned in subsection (1), it shall be deemed to contain the following provision:
“Where a difference arises between the parties relating to the interpretation, application or administration of this agreement, including any question as to whether a matter is arbitrable, or where an allegation is made that this agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of the person appointed to the arbitration board by the party giving the notice. The party to whom the notice is given shall, within five days of receiving the notice, name the person whom it appoints to the arbitration board and shall advise the other party of the name of its appointee to the arbitration board. The two appointees so selected shall, within five days of the appointment of the second of them, appoint a third person who shall be the Chairman. Where the party receiving the notice fails to appoint a member of the arbitration board, or where the two appointees of the parties fail to agree upon a Chairman within the time limited, the Minister of Post-Secondary Education, Training and Labour for New Brunswick, upon the request of a party to the agreement, shall appoint a member on behalf of the party failing to make an appointment, or shall appoint the third member, as the case may be, and, where the case requires, shall appoint both. The arbitration board shall hear and determine the difference or allegation and shall issue a decision and the decision is final and binding upon the parties and upon any fishermen or buyer affected by it. The decision of a majority is the decision of the arbitration board, but, if there is no majority, the decision of the Chairman shall be the decision of the arbitration board.”
44(3)Where, in the opinion of the Board, any part of the arbitration provisions in a collective bargaining agreement, including the method of appointment of the arbitrator or arbitration board, is inadequate, or the provisions set out in subsection (2) are unsuitable in any particular case, the Board, on the application of a party to the collective agreement, may modify any such provision in such manner as not to conflict with subsection (1), but, until so modified, the arbitration provision in the collective agreement or in subsection (2), as the case may be, applies.
44(4)Where a collective agreement, whether entered into before or after the commencement of this Act, provides for a panel of arbitrators jointly appointed or nominated thereto by the parties, the parties may at any time, except with respect to an arbitrator who has been appointed or designated to an arbitration or except with respect to a board of arbitration that is constituted, where he or it has entered upon a hearing, remove, substitute or add the names of persons to the panel and may modify any such provision in such manner as not to conflict with subsection (1), but until so modified, or modified pursuant to subsection (3), the arbitration provision in the collective agreement applies.
44(5)Where a collective agreement, whether entered into before or after the commencement of this Act, provides for arbitration before a three member board, or is deemed to provide for such a board by virtue of subsection (2), the parties may at any time, except with respect to an arbitration board which is constituted, and has entered upon a hearing, substitute therefor a provision applicable for the term of the agreement or for the term mentioned in the substituted provision, for arbitration before a single arbitrator and the parties may appoint a person to be the arbitrator or provide for appointment from a panel of arbitrators, but until so modified, or modified pursuant to subsection (3), the arbitration provision in the collective agreement or deemed to be included therein by virtue of subsection (2) applies.
44(6)Subsection (4) applies mutatis mutandis to a provision made under subsection (5) for the appointment of a panel of arbitrators.
1983, c.30, s.12; 1986, c.8, s.49; 1992, c.2, s.25; 1998, c.41, s.57; 2000, c.26, s.136; 2006, c.16, s.73; 2007, c.10, s.41; 2017, c.63, s.26; 2019, c.2, s.65
Only one collective agreement, agreement binding
45(1)There shall be only one collective agreement at a time between a fishermen’s organization or council of fishermen’s organizations and a buyer or buyers’ organization with respect to the fishermen in the bargaining unit defined in the collective agreement.
45(2)A collective agreement is, subject to and for the purposes of this Act, binding upon the buyer and upon the fishermen’s organization that is a party to the agreement and upon the fishermen in the bargaining unit defined in the agreement.
45(3)A collective agreement between a buyers’ organization and a fishermen’s organization or a council of fishermen’s organizations is, subject to and for the purposes of this Act, binding upon the buyers’ organization and each person who was a member of the buyers’ organization at the time the agreement was entered into and on whose behalf the buyers’ organization bargained with the fishermen’s organization or council of fishermen’s organizations as if it was made between each of such persons and the fishermen’s organization or council of fishermen’s organizations and upon the fishermen in the bargaining unit defined in the agreement and, if any such person ceases to be a member of the buyers’ organization during the term of operation of the agreement, he shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the fishermen’s organization or council of fishermen’s organizations, as the case may be.
45(4)A collective agreement between a certified council of fishermen’s organizations and a buyer is, subject to and for the purposes of this Act, binding upon each fishermen’s organization that is a constituent organization of such a council as if it had been made between each of such fishermen’s organizations and the buyer.
45(5)A collective agreement between a council of fishermen’s organizations, other than a certified council of fishermen’s organizations, and a buyer or a buyers’ organization is, subject to and for the purposes of this Act, binding upon the council of fishermen’s organizations and each fishermen’s organization that was a member of or affiliated with the council of fishermen’s organizations at the time the agreement was entered into and on whose behalf the council of fishermen’s organizations bargained with the buyer or buyers’ organization as if it was made between each of such fishermen’s organizations and the buyer or buyers’ organization, and upon the fishermen in the bargaining unit defined in the agreement, and, if any such fishermen’s organization ceases to be a member of or affiliated with the council of fishermen’s organizations during the term of operation of the agreement, it shall, for the remainder of the term of operation of the agreement, be deemed to be a party to a like agreement with the buyer or buyers’ organization, as the case may be.
Duration and commencement of collective agreement
46(1)Where a collective agreement does not provide for its term of operation or provides for its operation for an unspecified term or for a term of less than one year, it shall be deemed to provide for its operation for a term of one year from the date that it commenced to operate.
46(2)Where a collective agreement, or an arbitration award made under section 68 or a conciliation board award made under section 58 does not specify a commencement date, the agreement or award shall be deemed to commence on the first day of the month next following the month in which the agreement is executed or the award is made, as the case may be, and a collective agreement incorporating any such award shall be deemed to commence on the date of the commencement of the award.
46(3)Notwithstanding subsection (2), the parties may, before or after a collective agreement has ceased to operate, agree to continue its operation or any of its provisions for a period of less than one year while they are bargaining for its renewal or revision or for a new agreement, but such continued operation does not bar an application for certification or for a declaration that the fishermen’s organization no longer represents the fishermen in the bargaining unit.
46(4)Where a collective agreement is for a term longer than one year, the agreement shall contain or be deemed to contain a provision for the termination of the agreement
(a) at any time after the first year, by consent of the parties to the agreement, or
(b) at the end of the final year of the term of the agreement, by not less than two months notice given in writing by either party to the agreement before the end of the final year of the term of the agreement.
46(5)Subject to subsection (4), a collective agreement shall not be terminated by the parties before it ceases to operate in accordance with its provisions or before it may be terminated under the provisions of this Act without the consent of the Board on the joint application of the parties.
46(6)Notwithstanding anything in this section, where a buyer joins a buyers’ organization other than an accredited buyers’ organization, that is a party to a collective agreement with a fishermen’s organization or council of fishermen’s organizations, and he agrees with the fishermen’s organization or council of fishermen’s organizations to be bound by the collective agreement between the fishermen’s organization or council of fishermen’s organizations and the buyers’ organization, the agreement ceases to be binding upon the buyer and the fishermen’s organization or council of fishermen’s organizations at the same time as the agreement between the buyers’ organization and the fishermen’s organization or council of fishermen’s organizations ceases to be binding.
46(7)Nothing in this section prevents the revision by consent of the parties at any time of any provision of a collective agreement other than a provision relating to the term of operation.
SUCCESSOR RIGHTS
Successor of fishermen’s organization
47(1)Where a fishermen’s organization or council of fishermen’s organizations claims that by reason of a merger or amalgamation or a transfer of jurisdiction it is the successor of a fishermen’s organization or council of fishermen’s organizations that at the time of the merger, amalgamation or transfer of jurisdiction was the bargaining agent of a unit of fishermen supplying fish to a buyer and any question arises in respect of its right to act as the successor, the Board, in any proceeding before it or on the application of any person or fishermen’s organization concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
47(2)Before issuing a declaration under subsection (1), the Board, may make or cause to be made such examination of records or other inquiries, including the holding of hearings, as it deems necessary, or take or supervise the taking of such votes as it deems expedient to direct, and the Board may prescribe the nature of the evidence to be furnished to the Board.
47(3)Where the Board makes an affirmative declaration under subsection (1), the successor shall for the purposes of this Act be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the buyer, the successor and the fishermen concerned shall recognize such status in all respects.
Successor of buyers’ organization
48(1)Where a buyers’ organization claims that by reason of a merger or amalgamation it is the successor of a buyers’ organization, other than an accredited buyers’ organization, that at the time of the merger or amalgamation represented buyers in collective bargaining with a bargaining agent or as a party to a collective agreement, the Board, in any proceedings before it or on the application of any person or buyer concerned, may declare that the successor has or has not, as the case may be, acquired the rights, privileges and duties under this Act of its predecessor, or the Board may dismiss the application.
48(2)Before issuing a declaration under subsection (1), the Board, may make or cause to be made such examination of records or other inquiries, including the holding of hearings, as it deems necessary, or take or supervise the taking of such votes as it deems expedient to direct and the Board may prescribe the nature of the evidence to be furnished to the Board.
48(3)Where the Board makes an affirmative declaration under subsection (1), the successor shall, for the purposes of this Act, be conclusively presumed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement or otherwise, and the fishermen’s organization or council of fishermen’s organizations, the successor and the fishermen concerned shall recognize such status in all respects.
Sale of business
49(1)In this section
“business” includes a part or parts thereof;(entreprise)
“sells” includes leases, transfers and any other manner of disposition, and “sold” and “sale” have corresponding meanings.(vend)
49(2)Where a buyer who is bound by or is a party to a collective agreement with a fishermen’s organization or council of fishermen’s organizations sells his business, the person to whom the business had been sold is, until the Board otherwise declares, bound by the collective agreement as if he had been a party thereto and, where a buyer sells his business while an application for certification or termination of bargaining rights to which he is a party is before the Board, the person to whom the business has been sold is, until the Board otherwise declares, the buyer for the purpose of the application as if he were named as the buyer in the application.
49(3)Where a buyer, buying fish from a fisherman on behalf of whom a fishermen’s organization or council of fishermen’s organizations has been certified as bargaining agent, sells his business, the fishermen’s organization or council of fishermen’s organizations continues, until the Board otherwise declares, to be the bargaining agent for the fishermen supplying fish to the person to whom the business was sold in the like bargaining unit in that business, and the fishermen’s organization or council of fishermen’s organizations is entitled to give to the person to whom the business was sold a written notice of its desire to bargain with a view to making a collective agreement and such notice has the same effect as a notice under section 28.
49(4)Where a business was sold to a person and a fishermen’s organization or council of fishermen’s organizations was the bargaining agent of any of the fishermen supplying fish to such business, or a fishermen’s organization or council of fishermen’s organizations is the bargaining agent of the fishermen supplying fish to any business carried on by the person to whom the business was sold, and
(a) any question arises as to what constitutes the like bargaining unit referred to in subsection (3), or
(b) any person, fishermen’s organization or council of fishermen’s organizations claims that, by virtue of the operation of subsection (2) or (3), a conflict exists between the bargaining rights of the fishermen’s organization or council of fishermen’s organizations that represented the fishermen who supplied fish to the predecessor buyer and the fishermen’s organization or council of fishermen’s organizations that represents the fishermen supplying fish to the person to whom the business was sold, or between collective agreements,
the Board may, upon the application of any person, fishermen’s organization or council of fishermen’s organizations concerned,
(c) define the composition of the like bargaining unit referred to in subsection (3) with such modification, if any, as the Board deems necessary,
(d) amend, to such extent as the Board deems necessary, any bargaining unit in any certificate issued to any fishermen’s organization or any bargaining unit defined in any collective agreement, and
(e) declare which collective agreement, if any, shall continue in force and to what extent it shall continue in force and which collective agreement, if any, shall terminate.
49(5)The Board may, upon the application of any person, fishermen’s organization or council of fishermen’s organizations concerned, made within ninety days after the successor buyer referred to in subsection (2) becomes bound by the collective agreement, or within ninety days after the fishermen’s organization or council of fishermen’s organizations has given a notice under subsection (3), terminate the bargaining rights of the fishermen’s organization or council of fishermen’s organizations bound by the collective agreement or that has given notice, as the case may be, if, in the opinion of the Board, the person to whom the business was sold has changed its character so that it is substantially different from the business of the predecessor buyer.
49(6)Before disposing of any application under this section, the Board may make or cause to be made such examination of records or other inquiries, including the holding of hearings, as it deems necessary, or take or supervise the taking of such votes as it deems necessary, and the Board may prescribe the nature of the evidence to be furnished to the Board.
49(7)Where an application is made under this section, a buyer is not required, notwithstanding that a notice has been given by a fishermen’s organization or council of fishermen’s organizations, to bargain with that fishermen’s organization or council of fishermen’s organizations concerning the fishermen to whom the application relates until the Board has disposed of the application and has declared which fishermen’s organization or council of fishermen’s organizations, if any, has the right to bargain with the buyer on behalf of the fishermen concerned in the application.
49(8)For the purposes of sections 9, 10, 21, 23 and 27, a notice given by a fishermen’s organization or council of fishermen’s organizations under subsection (3) has the same effect as a certification under section 13.
49(9)Where, on any application under this section or in any other proceeding before the Board, a question arises as to whether a business has been sold by one buyer to another, the Board shall determine the question and its decision thereon is final and conclusive for the purposes of this Act.
DISPUTE SETTLEMENT
PROCEDURES
Duties of conciliator
50(1)Where a conciliation officer has been instructed under section 32 to confer with parties engaged in collective bargaining or any dispute, he shall, within fourteen days after being so instructed, or within such longer period as the Minister may from time to time allow, make a report to the Minister setting out
(a) the matters, if any, upon which the parties have agreed,
(b) the matters, if any, upon which the parties cannot agree,
(c) any other matter that in his opinion is material or relevant or should be brought to the attention of the Minister, and
(d) his opinion as to the advisability of appointing a conciliation board with a view to effecting a collective agreement.
50(2)A conciliation officer shall, in such manner as he thinks fit, expeditiously and carefully inquire into the dispute and all matters affecting the merits and just settlement thereof and he may fix the time and place for meetings and notify the parties as to the time and place so fixed.
50(3)When a conciliation officer has made a report under subsection (1), the Minister shall forthwith inform the parties that the report has been made and shall state the date on which it was made.
Composition of conciliation board, prohibition respecting membership
51(1)A board of conciliation appointed under section 32 shall consist of three members appointed in the manner provided in this section.
51(2)Where the Minister has decided to appoint a conciliation board, he shall forthwith, by notice in writing, require each of the parties, within seven days after receipt by the party of the notice, to nominate one person to be a member of the conciliation board, and upon receipt of the recommendations or upon the expiration of the seven-day period, the Minister shall appoint two members who, in his opinion, are representative of the different points of view of the respective parties.
51(3)The two members appointed under subsection (2) shall, within five days after the day on which the second of them is appointed, nominate a third person to be a member and chairman of the conciliation board, and the Minister shall, upon receipt of the recommendation or upon the expiration of the five-day period, appoint a third person to be a member and chairman of the conciliation board.
51(4)When the conciliation board has been appointed, the Minister shall forthwith notify the parties of the names of the members of the board and thereupon the board shall be deemed to have been constituted or established.
51(5)Where the Minister has given notice to parties that a conciliation board has been appointed under this Act, it shall be conclusively presumed that the conciliation board described in such notice has been established in accordance with the provisions of this Act, and no order shall be made or process entered or proceedings taken in any court, whether by way of injunction, judicial review, or otherwise, to question the granting of the conciliation board or the appointment of any of its members, or to review, prohibit or restrain any of its proceedings.
51(6)No person shall act as a member of a conciliation board who has any pecuniary interest in the matters referred to the board or who is acting, or has, within a period of six months preceding the date of his appointment, acted in the capacity of solicitor, legal adviser, counsel, or paid agent of either of the parties.
1986, c.4, s.21
Resignation or death of member, failure to report to Minister
52(1)Upon a person ceasing to be a member of a conciliation board by reason of his resignation or death before it has completed its work, the Minister shall appoint a member in his place who shall be selected in the manner prescribed by subsection 51(2) or (3) for the selection of the person who has so ceased to be a member.
52(2)Where, in the opinion of the Minister, a member of a conciliation board has failed to enter on his duties so as to enable it to report to the Minister within a reasonable time after its appointment, the Minister may appoint a member in his place after consulting the party whose point of view was represented by such person.
52(3)Where the chairman of a conciliation board is unable to enter on his duties so as to enable it to report to the Minister within a reasonable time after the appointment of the board, he shall advise the Minister of his inability and the Minister may appoint a person to act as chairman in his place.
Oath of office
53(1)The chairman of a conciliation board, before acting as such, shall
(a) take and subscribe the following oath, or
(b) make and subscribe the following affirmation,
before a person authorized to administer an oath or affirmation, and file the oath or affirmation with the Minister:
I do solemnly swear (or affirm) that I am not disqualified under the Fisheries Bargaining Act from acting as a member of a conciliation board and that I will faithfully, truly and impartially, to the best of my knowledge, skill and ability, fulfil and perform the duties which devolve upon me under the Fisheries Bargaining Act by reason of my duties as chairman and that I will not, except in the discharge of my duties, disclose to any person any of the evidence or other matter brought before the said board. (In the case where an oath is taken add “So help me God”)
53(2)Each member of a conciliation board, before acting as such, shall
(a) take and subscribe the following oath, or
(b) make and subscribe the following affirmation,
before a person authorized to administer an oath or affirmation, and file the oath or affirmation with the Minister:
I do solemnly swear (or affirm) that I am not disqualified under the Fisheries Bargaining Act from acting as a member of a conciliation board and that I will faithfully and truly, to the best of my knowledge, skill and ability, fulfil and perform the duties which devolve upon me under the Fisheries Bargaining Act by reason of my duties as a member and that I will not, except in the discharge of my duties, disclose to any person any of the evidence or other matter brought before the said board. (In the case where an oath is taken add “So help me God”)
1983, c.4, s.8
Delivery of statement of matters
54When the Minister has appointed a conciliation board, he shall forthwith deliver to it a statement of the matters referred to it, and may, either before or after the making of its report, amend or add to such statement.
Powers and procedure of commission
55(1)A conciliation board shall, forthwith upon the appointment of the chairman thereof, endeavour to bring about agreement between the parties in relation to the matters referred to it.
55(2)Except as otherwise provided in this Act, a conciliation board may determine its own procedure, but shall give full opportunity to all parties to present evidence and make representations.
55(3)The chairman may, after consultation with the other members of the board, fix the time and place of sittings of a conciliation board and notify the parties as to the time and place so fixed.
55(4)The chairman of a conciliation board shall in writing, immediately upon the conclusion of its first sitting, inform the Minister of the date on which the sitting was held.
55(5)The chairman and one other member of a conciliation board constitute a quorum, but in the absence of a member, the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.
55(6)The decision of a majority of the members present at a sitting of a conciliation board shall be the decision of the conciliation board but, if there is no majority, the decision of the chairman shall be the decision of the conciliation board.
55(7)The chairman shall forward to the Minister a detailed certified statement of the sitting of the board, and of the members and witnesses present at each sitting.
55(8)The report of the majority of the members is the report of the conciliation board.
Witnesses, powers of inspection
56(1)A conciliation board has the power of summoning before it any witnesses and of requiring them to give evidence under oath, or if they are persons entitled to affirm in civil matters, on affirmation, and orally or in writing, and to produce such documents and things as the conciliation board deems requisite to the full investigation and consideration of the matters referred to it.
56(2)A conciliation board has the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases.
56(3)Any member of a conciliation board may administer an oath or affirmation, and the conciliation board may receive and accept evidence on oath or affirmation, affidavit or otherwise as in its discretion the board may deem fit and proper, whether admissible as evidence in a court of law or not.
56(4)A conciliation board, or a member thereof, or any person who has been authorized for such purpose in writing by a conciliation board, may, without any other warrant than this section, at any time, enter a building, ship, vessel, factory, workshop, place or premises of any kind where work is being or has been done or commenced by fishermen or in which a buyer carries on business or any matter or thing is taking place or has taken place, concerning the matters referred to the conciliation board, and may inspect and view any work, material, machinery, appliance or article therein, and interrogate any person in or upon any such place, matter or thing hereinbefore mentioned; and no person shall hinder or obstruct the board, member or any person authorized by the board, in the exercise of a power conferred by this subsection or refuse to answer an interrogation made.
Report of conciliation board
57(1)A conciliation board shall, within fourteen days after the appointment of the chairman of the board, report its findings and recommendations to the Minister.
57(2)The period mentioned in subsection (1) may be extended
(a) for a further period not exceeding thirty days, by agreement of the parties or by the Minister, or
(b) for such further period beyond the period fixed in paragraph (a) by agreement of the parties or by the Minister.
57(3)Where a conciliation board is unable to report within the time allowed under subsection (1) or (2), the chairman shall notify the Minister in writing that there has been no agreement or that the board is unable to report, as the case may be, and in any such case, subject to subsection (2), the notification constitutes the report of the Board.
57(4)When a conciliation board has made its report, the Minister may direct it to clarify or amplify any part of the report, and the chairman shall, upon receipt of the request, reconvene the board, and the report shall be deemed not to have been received by the Minister until it has been so clarified or amplified.
57(5)When the report of the conciliation board is received, the Minister, subject to subsection (4), shall forthwith send a copy thereof to each of the parties.
57(6)The Minister may require each party to whom a copy of a report is sent pursuant to subsection (5) to notify the Minister in writing, within the time prescribed in subsection 74(2) or forthwith on the expiration of the period, subject to such extension as may be allowed, whether the recommendations contained in the report have been accepted or rejected wholly or in part, and which recommendations, if any, have been rejected.
Recommendations binding on parties
58(1)Where a conciliation board has been appointed and at any time, before or after it has made its report, the parties so agree in writing, the recommendations of the conciliation board are binding on the parties and they shall give effect thereto.
58(2)An agreement to be bound by the recommendations of a conciliation board under subsection (1) is effective when filed with the Minister or when filed with the board for transmission to the Minister.
58(3)Where the Minister is requested to appoint a conciliation board, if all the parties bargaining collectively offer or undertake in writing to be bound by, and give effect to, the recommendations of the conciliation board, each of those parties is bound by, and shall give effect to, the recommendations of the conciliation board if it is appointed.
58(4)An award under this section may be retroactive to the date of appointment of a conciliation officer or mediator, or to such earlier or later date as may be fixed in the award of the conciliation board, as the case may be, but in no case shall the award be retroactive, where no collective agreement was in operation, to a day before the day on which notice to bargain collectively was given by either party, or, where a collective agreement was in operation, before the expiration date of the agreement or the expiration date of a provision therein subject to revision under the agreement.
58(5)Where the parties agree to be bound under this section by the report of a conciliation board before the board has reported, subsection 66(2) and subsections 68(4) to (6) and (8) to (10) shall apply mutatis mutandis and subsection 105(1) shall apply to the proceedings and the award of the conciliation board as if such board were named therein.
Appointment of mediator, duties and powers
59(1)Where the Minister is authorized to appoint a conciliation officer, the Minister may appoint a mediator at any time before he has appointed a conciliation board or before he has informed the parties that he does not deem it advisable to appoint a conciliation board.
59(2)Where the Minister has appointed a mediator after a conciliation officer has been appointed, the appointment of the conciliation officer is thereby terminated.
59(3)Where a mediator is appointed under this section, he shall forthwith confer with the parties and endeavour to effect a collective agreement.
59(4)Section 50 applies mutatis mutandis to a mediator and a mediator has all the powers of a conciliation board or a member thereof under section 56.
59(5)The report of a mediator has the same effect as the report of a conciliation officer.
59(6)Where a mediation officer is directed to report under subsection 60(3), the mediation officer is a mediator within the meaning of and for the purposes of this section.
Appointment of mediation officer, duties and powers
60(1)Notwithstanding any provision of this Act, the Minister may at any time appoint a person as a mediation officer when he is satisfied that the appointment of a mediation officer may bring about settlement of a dispute or prevent a dispute.
60(2)It shall be the function of a mediation officer appointed under this section to investigate the causes of an existing or potential dispute, to attempt to bring about a settlement of the dispute or to prevent the dispute, and to assist fishermen’s organizations and a buyer in the development of effective business dealings between the two parties.
60(3)When a mediation officer is unable to effect a settlement of the dispute and the Minister has not appointed a conciliation board or informed the parties that he does not deem it advisable to appoint a conciliation board, the mediation officer shall, at the direction of the Minister, make a report in accordance with section 50 and the report shall be deemed to be the report of a conciliation officer for the purposes of this Act.
60(4)A mediation officer appointed under this section shall have all the powers of a mediator appointed under section 59.
60(5)A mediation officer appointed under this section shall make a report to the Minister, but, except as provided in subsection (3), the appointment of a mediation officer under this section does not affect any right to boycott.
Effect of failure to report within time provided
61The failure of a conciliation officer, or mediator, or a mediation officer or conciliation board to report to the Minister within the time provided in this Act shall not invalidate the proceedings of the conciliation officer, mediator, mediation officer or conciliation board or terminate the authority of the conciliation officer, mediator, mediation officer or conciliation board.
Vacancy re arbitration proceeding appointment, remuneration
62(1)Where, in any arbitration proceeding under the provisions of section 44, an arbitrator appointed by the parties, or an arbitrator appointed by or deemed to be appointed by a party, or a chairman appointed by the arbitrators appointed by the parties or deemed to be appointed by them refuses to act or is incapable of acting or dies, any party may serve the other party or the arbitrators, as the case may be, with a written notice to appoint an arbitrator or a chairman within the time, if any, specified in the collective agreement for filling the vacancy, or within seven days if no time or provision is so prescribed, and, on the failure of an appointment to be made within the required time, a request may be made under subsection (2).
62(2)Where there is failure to appoint an arbitrator or to constitute an arbitration board under a collective agreement or under the provisions of section 44, the Minister, upon the request of either party, may appoint the arbitrator or make such appointments as are necessary to constitute the arbitration board, as the case may be, and any person so appointed by the Minister shall be deemed to have been appointed in accordance with the collective agreement, the provisions of section 44, or subsection (1).
62(3)Where the Minister has appointed an arbitrator or the chairman of an arbitration board under subsection (2), each of the parties shall pay one-half the remuneration and expenses of the person appointed, and, where the Minister has appointed a member of an arbitration board under subsection (2), on the failure of one of the parties to make an appointment, that party shall pay the remuneration and expenses of the person appointed.
62(4)Where a vacancy is filled under subsection (1) or (2) and the vacancy occurred after the commencement of the hearings in an arbitration proceeding, the hearings need not be recommenced or repeated where a transcript has been taken, but, on request made by any party to the proceedings, or in any case where the arbitrator or arbitration board deems it advisable to do so, the arbitrator or the board may in its discretion rehear the matter in whole or in part.
Eligibility requirements and oath of arbitrator
63(1)Any person is eligible to be appointed an arbitrator or chairman or member of an arbitration board, in any arbitration proceeding under the provisions of section 44, but no person shall serve who is directly affected by the matter in arbitration or who has been involved in an attempt to negotiate or settle the matter.
63(2)Every arbitrator in any arbitration proceeding under the provisions of section 44, before proceedings to try the matter in arbitration, shall
(a) take and subscribe the following oath, or
(b) make and subscribe the following affirmation,
before a person authorized to administer an oath or affirmation, and file the oath or affirmation with the Minister:
I do solemnly swear (or affirm) that I am not disqualified under the Fisheries Bargaining Act from acting as an arbitrator and that I will faithfully, truly and impartially, to the best of my knowledge, skill and ability, fulfil and perform the duties which devolve upon me as ____________________ in the matter of an arbitration between ________________ and ________________ . (In the case where an oath is taken add “So help me God”)
1983, c.4, s.8
Time for making award, effects of collective agreement continue in force
64(1)Where a difference has been submitted to arbitration under the provisions of section 44, the arbitrator or the arbitration board shall proceed with and complete the arbitration as expeditiously as possible, having regard to the interest of the parties, and shall make an award
(a) within three months after the date of the appointment of the arbitrator or the constitution of the arbitration board, or within three months after the date of an appointment or a reconstitution of a board on the filling of a vacancy, and
(b) within five days of the termination of the hearings,
but the time for making an award may, from time to time, be extended by agreement of the parties or, in the absence of agreement, as the Minister may approve whether the time for making the award has expired or not, and a failure to make an award within the time expressed or as extended shall not invalidate the proceedings or terminate the authority of the arbitrator or the arbitration board, as the case may be.
64(2)Notwithstanding that the term of a collective agreement has expired, the provisions thereof and of section 44 for the final settlement without cessation of normal business dealings between a fisherman or a fishermen’s organization and a buyer or buyers’ organization by arbitration or otherwise, of all differences concerning the interpretation, application, administration, or an alleged violation of the agreement, including any question as to whether a matter is arbitrable, continue in force after the expiry of the term, where a notice has been given under section 29, until the date when one of the conditions, whichever occurs first, prescribed in subsection 72(2), for a boycott is met.
64(3)Nothing in subsection (2) shall be interpreted to preclude or affect the jurisdiction of an arbitrator or arbitration board to render an award, that might otherwise be rendered, in any matter that arose before the date mentioned in subsection (2).
Powers of arbitrator, section 44
65(1)The arbitrator or the arbitration board, as the case may be, in any proceeding under the provisions of section 44, has power
(a) to summon and enforce the attendance of witnesses and to compel them to give evidence in the same manner as a court of record in civil cases, orally or in writing, and to produce such documents and do all other things that, during the proceedings, the arbitrator or arbitration board may require,
(b) to administer oaths and affirmations of witnesses,
(c) to enter any premises where fish supplied by fishermen are stored or processed, or where anything is taking place or has taken place concerning any of the differences submitted to him or it, and to inspect the fish supplied by the fishermen and interrogate any person in the presence of the parties or their agents respecting any such thing or any of such differences,
(d) to authorize any person to do any things that the arbitrator or arbitration board may do under paragraph (c) and report to the arbitrator or arbitration board thereon,
(e) to receive and accept any relevant evidence whether admissible in evidence in a court of law or not, and
(f) to correct in any award any clerical mistake, error or omission.
65(2)Any arbitrator or member of an arbitration board may administer an oath or take an affirmation under this section.
65(3)The arbitrator or the arbitration board by his or its decision in a proceeding under the provisions of section 44 shall not alter, amend or change the terms of the collective agreement.
65(4)Notwithstanding anything in the collective agreement, where the arbitrator or the arbitration board in a proceeding under the provisions of section 44 determines that a buyer has refused to buy fish from a fisherman for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitrator or the arbitration board may substitute such other penalty as to the arbitrator or arbitration board seems just and reasonable in all circumstances.
65(5)Notwithstanding anything in the agreement or in this Act, the arbitrator or the arbitration board in a proceeding under the provisions of section 44 may reserve jurisdiction on any matter of compensation or on any matter relating to the application of an award, and, with respect to any matter so reserved, the award shall be deemed not to have been made until a notification is received of settlement by the parties and incorporated in an award or a final disposition of the matter is made in an award.
Decision of arbitrator and execution
66(1)The decision of the arbitrator or of the arbitration board, in any proceeding under the provisions of section 44 is binding
(a) upon the parties,
(b) in the case of a collective agreement between a fishermen’s organization and a buyer or buyers’ organization, upon the buyers covered by the agreement who are affected by the decision,
(c) in the case of a collective agreement between a council of fishermen’s organizations and a buyer or a buyers’ organization, upon the members or affiliates of the council and the buyer or the fishermen covered by the agreement, as the case may be, who are affected by the decision, and
(d) upon the fishermen covered by the agreement who are affected by the decision,
and such parties, buyers, fishermen’s organizations and fishermen shall do or abstain from doing anything required of them by the decision.
66(2)No award within subsection (1) shall be invalidated from any want of form or other technical objection if the requirements of this Act have been complied with.
66(3)Where a party, buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or fisherman has failed to comply with any of the terms of the decision of the arbitrator or of the arbitration board within subsection (1), any party, buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations or fisherman affected by the decision may, after the expiration of fourteen days from the date of the release of the decision or the date provided in the decision for compliance, whichever is later, file a copy of the decision, exclusive of the reasons therefore, in the prescribed form, in The Court of King’s Bench of New Brunswick whereupon the decision shall be entered as a judgment or order of that Court and is enforceable as such.
2023, c.17, s.97
Powers of Court
67(1)Where, in any proceeding under the provisions of section 44
(a) an arbitrator has misconducted himself or the proceedings, the Court may remove him,
(b) an arbitrator has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the Court may set the award aside,
(c) an arbitrator or an arbitration board has decided that a question is arbitrable and an award was made by an arbitrator or arbitration board determining that question, the Court may, if in its opinion the question was not arbitrable, set the award aside,
(d) an arbitrator or arbitration board has decided that a question is not arbitrable, the Court may, if in its opinion the question was arbitrable, order that the question be tried by the arbitrator or arbitration board, and
(e) an arbitrator or arbitration board so desires or is so directed by the Court, the arbitrator or arbitration board shall state
(i) any question of law arising in the course of the arbitration, or
(ii) an award or any part of an award,
in the form of a stated case for the decision of the Court.
67(2)Where the Court has removed any arbitrator, it may, notwithstanding the expiration of any time limits under section 64 or the collective agreement, order that another person be appointed in the same manner as provided for the appointment of the arbitrator so removed and direct that the person or arbitration board hear and determine the difference and issue an award.
67(3)Where the Court has set aside the award of an arbitrator or arbitration board pursuant to paragraph (1)(b), it may, notwithstanding the expiration of any time limits under section 64 or the collective agreement, order that another person or persons be appointed as the arbitrator or arbitration board in the same manner as provided for the appointment of the arbitrator or arbitration board to hear and determine the difference and to issue an award.
67(4)Where the Court has ordered a question to be tried pursuant to paragraph (1)(d), the time limits under section 64 for an award shall apply from the date of the order.
67(5)When an application is made for an order, direction or decision of the Court under paragraph (1)(b), (c), (d) or subparagraph (1)(e)(ii) or a direction is made under paragraph (1)(e), the Court, pending disposition of the application, may suspend the operation or enforcement of an award in whole or in part, or make such other direction as to compliance or enforcement as may be required.
Submission to arbitrator of differences where no agreement reached
68(1)Where a buyer or buyers’ organization and a bargaining agent have bargained collectively with a view to the making of a collective agreement, or the renewal or revision of an agreement or the making of a new agreement, but have failed to reach agreement, the parties may, by agreement in writing to be bound by an award, submit their differences to arbitration before an arbitrator or arbitration board.
68(2)An agreement to be bound by an award made under subsection (1) is effective when filed with the Minister.
68(3)Upon the filing of an agreement to arbitrate under subsection (1), subsections 44(2) to (5), section 62, 63, subsection 64(1) and (2), subsections 65(1) and (2), and subsection 66(2) shall apply mutatis mutandis and subsection 105(2) shall apply to the proceedings and award of the arbitrator or arbitration board as if the arbitrator or arbitration board were named therein.
68(4)The arbitrator or arbitration board appointed or constituted under this section shall endeavour to bring about a settlement of the differences between the bargaining agent and the buyer and to formulate an agreement which, upon being entered into by the parties, shall be a collective agreement under this Act.
68(5)Where the arbitrator or arbitration board is unsuccessful in formulating an agreement satisfactory to both parties, and after considering the matters of difference together with any other matter considered necessarily incidental to a resolution of the matters of difference, the arbitrator or arbitration board shall render an award in respect thereto.
68(6)An award made under subsection (5) shall not include any matter to which the parties agreed under subsection (4) and shall, whenever possible, be made in a form
(a) susceptible of being
(i) read and interpreted with, or
(ii) annexed to and published with,
any collective agreement dealing with other terms and conditions of the sale of fish by fishermen in the bargaining unit in respect of which the award applies, and
(b) susceptible of enabling its incorporation into and implementation by directions or other instruments that may be required to be made or issued by the buyer or buyers’ organization or the bargaining agent in respect thereof.
68(7)An award under subsection (5) may be retroactive to a day prior to the day on and from which it becomes binding on the parties but in no case shall the award be retroactive, where no collective agreement was in operation, to a day before the day on which notice to bargain collectively was given by either party, or, where a collective agreement was in operation, before the expiration date of the agreement or the expiration date of a provision therein subject to revision under the agreement.
68(8)The arbitrator or arbitration board shall, in respect of every award made under subsection (5), determine and specify therein the term for which the award shall be operative and, in making its determination, he or it shall take into account,
(a) where a collective agreement applicable to the bargaining unit is in effect or has been entered into but is not yet in effect, the term of that collective agreement, and
(b) where no collective agreement applying to the bargaining unit has been entered into,
(i) the term of any previous agreement that applied to the bargaining unit, or
(ii) the term of any other collective agreement that to the arbitrator or arbitration board appears relevant,
but no award, in the absence of the application thereto of any criterion referred to in paragraph (a) or (b), shall be for a term of less than one year or more than three years from the day on and from which it becomes binding on the parties.
68(9)Where an award is made under subsection (5) and it appears to a party bound by the award that the arbitrator or arbitration board has failed to deal with any matter of difference, or that a term of the award requires clarification, such party may, within seven days after the release of the award, request the arbitrator or arbitration board to reconvene and, upon any such request, the arbitrator or arbitration board shall reconvene and deal with the matter of the request in the same manner as in the case of a difference between the parties initially before the arbitrator or arbitration board.
68(10)An award under subsection (5), subject to subsection (9), shall forthwith be incorporated into a collective agreement and subsections 33(3), (5) and (6) apply mutatis mutandis and, until so incorporated, the award, subject to subsection 46(2), shall have the effect of a collective agreement for the purposes of this Act.
Arbitration Act not applicable
69The Arbitration Act does not apply to arbitrations under sections 44, 68 or to conciliation proceedings under section 58.
Commission of inquiry named by Minister
70(1)The Minister may upon application or on his own motion, where he deems it expedient, make or cause to be made any inquiries he thinks fit regarding fisheries matters, and may do such things as seem calculated to maintain or secure peace in business dealings and to promote conditions favourable to the settlement of disputes.
70(2)For any of the purposes of subsection (1), or where in any business dealings a dispute or difference between a buyer or buyers’ organization and a fisherman, fishermen’s organization or council of fishermen’s organizations exists or is apprehended, the Minister may appoint a fishing industry inquiry commission and may refer the matters involved to the commission, for investigation thereof, as the Minister deems expedient, and for report thereon, and he shall furnish the commission with a statement of the matters concerning which such inquiry is to be made, and, in the case of any inquiry involving any particular persons or parties, shall advise such persons or parties of the appointment.
70(3)A fishing industry inquiry commission shall forthwith upon appointment, inquire into the matters referred to it by the Minister and endeavour to carry out its terms of reference.
70(4)In the case of a dispute or difference in which a settlement has not been effected in the meantime, the fishing industry inquiry commission shall report the result of its inquiries, including its recommendations, to the Minister within fourteen days after its appointment or such extension thereof as the Minister may from time to time allow.
70(5)Upon receipt of a report of a fishing industry inquiry commission relating to any dispute or difference between buyers or buyers’ organizations and fishermen, fishermen’s organizations or councils of fishermen’s organizations, the Minister shall furnish a copy to each of the parties affected and may publish the report in such manner as he sees fit.
70(6)A fishing industry commission shall consist of one or more members appointed by the Minister and sections 55 and 56 apply mutatis mutandis as if the commission were a conciliation board.
Violation of Act, complaint by person aggrieved
71(1)A person claiming to be aggrieved because of an alleged violation of any of the provisions of this Act may make a complaint in writing to the Minister and the Minister, upon receipt of such complaint, may require a fishing industry inquiry commission appointed by him pursuant to section 70, or a conciliation officer or inquiry officer to investigate and make a report to him in respect of the alleged violation.
71(2)Upon receipt of a report pursuant to subsection (1), the Minister shall furnish a copy to each of the parties affected, and, if he considers it desirable to do so, he may cause the report to be published in such manner as he sees fit.
71(3)The appointment of a conciliation officer under subsection (1), or subsection 86(2), does not affect any right to boycott under the provisions of this Act and shall not be deemed to be an appointment made within the meaning of subsection 32(1) or (3).
BOYCOTTS
Prohibition against boycotting
72(1)Where a collective agreement is in operation, no fisherman or fishermen’s organization bound by the agreement shall boycott and no buyer or buyers’ organization bound by the agreement shall boycott except as permitted in subsection (3).
72(2)Where no collective agreement is in operation, no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott
(a) until a party has requested the Minister to instruct a conciliation officer to confer with the parties and seven days have elapsed from the date on which the Minister has released to the parties a notice under subsection 32(3) that he does not deem it advisable to appoint a conciliation officer or to appoint a mediator under section 59,
(b) until, where the Minister has appointed a conciliation officer or a mediator, as defined in paragraph (a), to confer with the parties, seven days have elapsed after the Minister has released to the parties a notice that he does not deem it advisable to appoint a conciliation board, or
(c) until, where the Minister has appointed a conciliation board, seven days have elapsed after the Minister has released to the parties the report of the conciliation board,
whichever occurs first.
72(3)Where a collective agreement is in operation and a dispute arises between the parties thereto with reference to the revision or renewal of a provision of the agreement that, by the provisions of the agreement, is subject to revision or renewal during the term of the agreement, no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott until one of the conditions expressed in paragraph (2)(a), (b) or (c), whichever occurs first, is met.
Conciliation board, arbitrator or arbitration board and boycotting
73(1)Where a conciliation board has been appointed under this Act to conciliate a dispute between a buyer or buyers’ organization and any of the fishermen supplying fish to him or it otherwise than during the term of a collective agreement or in the course of collective bargaining, no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott, if a boycott is otherwise lawful under the provisions of this Act, until seven days have elapsed after the Minister has released to the parties the report of the conciliation board.
73(2)Where a conciliation board has been appointed to conciliate a dispute between a buyer or a buyers’ organization and a fishermen’s organization and the parties have agreed to be bound by the award pursuant to section 58, or where the parties have agreed to be bound by the award of an arbitrator or arbitration board appointed or constituted pursuant to section 68, no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott during the period of the proceedings and from the date of the report or award and during the period that the report or award or a collective agreeement incorporating the report or award is in operation.
Conditions respecting boycotts where report of board
74(1)Where a conciliation board is appointed under this Act and where the report is not subject to the provision made in subsection 73(2) and where the parties have filed with the Minister an agreement in writing to be bound by the result of a vote on acceptance of the report, no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott until after the expiration of the period of time prescribed in subsection 72(2) or (3) and until a vote has been taken on acceptance or rejection of the report either before or after the expiration of the period of time prescribed in subsection 72(2) or (3).
74(2)A vote under subsection (1) shall be taken not later than thirty days after the release of the report of the conciliation board to the parties and subsections 75(1) and (2) and subsections 76(1) to (3) apply mutatis mutandis to the vote, as the case may be.
74(3)Where a vote is taken under subsection (2) and where the report of the conciliation board is accepted by the parties thereto, the report shall be incorporated into a collective agreement and subsections 33(3) to (6) apply thereto mutatis mutandis, and no fisherman or fishermen’s organization shall boycott and no buyer or buyers’ organization shall boycott from the date of the acceptance of the report, by the last of the parties to accept, during the period of time that the report or a collective agreement incorporating the terms of the report is in operation and, until so incorporated, the report shall have the effect of a collective agreement for the purposes of this Act.
74(4)Where a buyer is a party to an agreement referred to in subsection (1) and where a buyers’ organization is not authorized to bargain for or on behalf of such buyer, the buyer shall in writing signify his acceptance or rejection of the report of the conciliation board within the time prescribed in subsection (2), and subsection (3) shall apply mutatis mutandis.
Vote of fishermen on boycotts
75(1)Notwithstanding anything in this Act, no fisherman or fishermen’s organization shall boycott until after a vote of fishermen in the unit has been taken by the fishermen’s organization or council of fishermen’s organizations as to whether to boycott or not to boycott and the majority of such fishermen have voted in favour of a boycott.
75(2)A vote taken under subsection (1) shall be taken by secret ballot cast in such a manner that a person expressing his choice cannot be identified with the choice expressed and the vote shall be conducted in such manner, whether by mail or otherwise, that those entitled to vote have ample opportunity to cast their ballots.
75(3)Where a dispute arises with respect to subsection (1) or (2), the vote may be continued or discontinued subject to reference of the dispute to the Board.
75(4)The Board on a reference under subsection (3) may revise the returns on the vote, or set aside, or order a new vote, or make such other disposition as the circumstances require and the decision of the Board is final and binding on all parties.
75(5)The result of a vote when in favour of boycott action does not bind a fishermen’s organization, council of fishermen’s organizations or a fisherman to that course of action, but no fisherman shall boycott where a majority of fishermen eligible to vote in the unit have voted against boycott action.
Vote of buyers on boycotts
76(1)Notwithstanding anything in this Act, where two or more buyers, or two or more buyers who are members of a buyers’ organization, other than an accredited buyers’ organization, are engaged in the same dispute with fishermen in the same bargaining unit, no buyer or buyers’ organization shall boycott until after a vote has been taken of all buyers with fishermen in the unit as to whether to boycott or not to boycott and a majority of such buyers have voted in favour of a boycott.
76(2)Notwithstanding anything in this Act, where an accredited buyers’ organization is authorized to bargain for or on behalf of a buyer, no such buyer shall boycott with respect to fishermen in the bargaining unit until after a vote has been taken by the accredited buyers’ organization of all such buyers having business dealings with such fishermen as to whether to boycott or not to boycott and a majority of all such buyers dealing with fishermen in the bargaining unit have voted in favour of a boycott.
76(3)A vote taken under subsection (1) or (2) shall be taken by secret ballot and the vote shall be conducted in such a manner, whether by mail or otherwise, that those eligible to vote have ample opportunity to cast their ballots.
76(4)Where a dispute arises with respect to subsections (1) to (3), the vote may be continued or discontinued subject to reference of the dispute to the Board.
76(5)The Board, on a reference under subsection (4) may revise the returns on the vote, or set aside the vote, or order a new vote, or make such other decision as the circumstances may require and the decision of the Board is final and binding on all parties.
76(6)The result of a vote when in favour of a boycott does not bind a buyers’ organization or a buyer to that course of action, but no buyer shall declare a boycott where, in accordance with subsection (1) or (2), the requisite majority of buyers have voted against a boycott.
Votes
77(1)A vote on the acceptance or rejection of the report of a conciliation board under section 74 and a boycott vote under section 75 may be taken separately or, subject to the time prescribed in subsection 74(2) and subsection 79(2), be taken together on a single ballot.
77(2)A vote to ratify a proposed collective agreement and a boycott vote under section 75 may be taken separately or, subject to the time prescribed in subsection 79(2), be combined together on a single ballot and, when taken together, the vote shall be taken in accordance with section 75.
77(3)A vote on the acceptance or rejection of the report of a conciliation board under section 74 and a vote on a boycott under section 76 may be taken separately or, subject to the time prescribed in subsection 74(2) and subsection 79(3) be taken together on a single ballot.
77(4)A vote to ratify a proposed collective agreement and a boycott vote under section 76 may be taken separately or, subject to the time prescribed in subsection 79(3), be combined together on a single ballot and, when taken together, the vote shall be taken in accordance with section 76.
Twenty-four hours notice of boycott required
78(1)Where a vote taken pursuant to section 75 is in favour of a boycott, no fisherman or fishermen’s organization shall boycott until the buyer or buyers’ organization has been given notice by the fishermen’s organization or council of fishermen’s organizations that the fishermen or fishermen’s organization intends to boycott and twenty-four hours have elapsed from the time such notice was given.
78(2)Where a vote taken pursuant to section 76 is in favour of a boycott, no buyer or buyers’ organization shall boycott until the fishermen’s organization or council of fishermen’s organizations has been given written notice by the buyer or buyers’ organization that the buyer or buyers’ organization intends to boycott the fishermen and twenty-four hours have elapsed from the time such notice was given.
78(3)Where a buyer is not subject to subsection (2), the buyer shall not boycott until the fishermen’s organization or council of fishermen’s organizations has been given written notice by the buyer that the buyer intends to boycott the fishermen and twenty-four hours have elapsed from the time such notice was given.
Conditions before taking boycott vote
79(1)No fishermen’s organization or council of fishermen’s organizations other than a fishermen’s organization or council of fishermen’s organizations that is entitled to bargain collectively under this Act, by virtue of certification or by virtue of being a party to a collective agreement, on behalf of a unit of fishermen, shall take or authorize a boycott vote.
79(2)A fishermen’s organization or council of fishermen’s organizations shall not take a boycott vote until after one of the conditions expressed in paragraph 72(2)(a), (b) or (c), whichever occurs first, is met.
79(3)A buyer or buyers’ organization shall not take a boycott vote until after one of the conditions expressed in paragraph 72(2)(a), (b) or (c), whichever occurs first, is met.
79(4)No boycott shall commence after the period of one year from the date of a vote or the date fixed for the return on a vote taken, as the case may be, under section 75 or 76.
79(5)Where a boycott is prohibited under subsection (4) it shall be deemed that a dispute no longer exists.
Voting procedure, counting
80(1)Where a vote is taken under this Act on the acceptance or rejection of the report of a conciliation board, or on boycott action, the ballots and other documents relating to the taking of the vote, after the count of the vote, shall be sealed in an envelope or other container by the person acting or designated as returning officer and forthwith deposited with the Minister who may cause such examination of the vote to be made as he deems necessary and retain the ballots and other documents for one year or such further period as he deems reasonable.
80(2)The Minister may destroy the ballots and other documents deposited with him under subsection (1) at any time after one year from the date of the deposit.
80(3)Where the ballots and other documents relating to a vote have been deposited with the Minister before the date of a reference to the Board under the provisions of section 75 or 76, the ballots and other documents shall be made available to the Board for the purposes of the reference and shall be deemed to have been deposited with the Board for all purposes of such reference.
Unlawful boycotts
81(1)No fisherman or fishermen’s organization shall threaten an unlawful boycott and no buyer or buyers’ organization shall threaten an unlawful boycott.
81(2)No fishermen’s organization or council of fishermen’s organizations shall call or authorize or threaten to call or to authorize and no agent of a fishermen’s organization or council of fishermen’s organizations shall counsel, procure, support or encourage an unlawful boycott or threaten an unlawful boycott.
81(3)No buyer or buyers’ organization shall call or authorize or threaten to call or to authorize, and no agent of a buyer or a buyers’ organization shall counsel, procure, support or encourage an unlawful boycott or threaten an unlawful boycott.
81(4)No person shall do any act if he knows or ought to know that, as a probable and reasonable consequence of the act, another person will engage in an unlawful boycott.
81(5)Subsection (4) does not apply to any act done in connection with a lawful boycott.
Directives respecting boycotts
82(1)Every buyer who is represented by an accredited buyers’ organization shall comply with any direction of the organization with respect to a boycott affecting the organization and the buyer, if the direction is not contrary to subsection (2) or any provision of this Act.
82(2)Nothing in this Act prohibits a buyer, represented by a buyers’ organization, from continuing or attempting to continue his operations during a boycott involving fishermen who supply fish to buyers represented by the buyers’ organization.
Declaration of board that boycott illegal
83(1)Where a fishermen’s organization or a council of fishermen’s organizations calls or authorizes a boycott, or fishermen engage in a boycott, that the buyer or buyers’ organization concerned alleges was or is unlawful, the buyer or buyers’ organization may apply to the Board for a declaration that the boycott was or is unlawful, and the Board may make such declaration.
83(2)Where a buyer or buyers’ organization calls or authorizes a boycott that any of the fishermen or the fishermen’s organization or the council of fishermen’s organizations concerned alleges was or is unlawful, any of the fishermen or the fishermen’s organization or the council of fishermen’s organizations may apply to the Board for a declaration that the boycott was or is unlawful, and the Board may make such declaration.
83(3)A declaration made under this section does not affect any proceeding in any court or any proceeding under the provision of a collective agreement, where the question of a lawful or unlawful boycott is in issue.
Suspension of activities permitted if it does not constitute boycott
84Nothing in this Act prohibits any suspension or discontinuance for cause of a buyer’s operations or any cessation of business by a fisherman if the suspension, discontinuance or cessation does not constitute a boycott.
Acts permitted during boycott
85(1)Where there is a boycott by fishermen or a fishermen’s organization or a boycott by a buyer or buyers’ organization that is not unlawful under this Act, a fishermen’s organization or council of fishermen’s organizations, members of which are boycotting or who are affected by the boycott by a buyer or buyers’ organization, and anyone authorized by the fishermen’s organization or council of fishermen’s organizations, may, at the buyer’s or buyers’ organization’s place of business or operations, and without acts that are otherwise unlawful, persuade or endeavour to persuade anyone not to
(a) enter the buyer’s or buyers’ organization’s place of business or operations,
(b) deal in or handle the products of the buyer or buyers’ organization, or
(c) do business with the buyer or buyers’ organization.
85(2)Except as provided in subsection (1), in respect of matters to which this Act applies, no fishermen’s organization or council of fishermen’s organizations or other person shall persuade or endeavour to persuade anyone not to
(a) enter a buyer’s or buyers’ organization’s place of business or operations,
(b) deal in or handle the fish products of any person, or
(c) do business with any person.
85(3)Public expressions of sympathy or support otherwise than by picketing on the part of fishermen’s organizations or others not directly concerned in the boycott do not contravene subsection (2).
ENFORCEMENT
Complaint, failure to comply with sections 4 to 8
86(1)Where a complaint in writing is made to the Board that a buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or any other person is committing or has committed an act in violation of sections 4 to 8, the Chief Executive Officer, subject to the rules of the Board, may refer the complaint to the Board or may cause an inquiry to be made under subsection (2).
86(2)Where the Chief Executive Officer has not referred the complaint to the Board, he shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of or he may appoint a conciliation officer or an inquiry officer, with the consent of the Minister, or appoint any other person to inquire into the complaint and, upon appointment, the conciliation officer, inquiry officer, or other person shall forthwith inquire into the complaint and endeavour to effect a settlement of the matter complained of.
86(3)When a complaint has been referred to the Board under subsection (1), or in any other case when an inquiry has not been undertaken or a settlement has not been effected under subsection (2), the Board may direct an inquiry or further inquiry under subsection (2) or, if the Board deems it advisable to dispense with an inquiry or further inquiry under subsection (2), the Board may inquire into the complaint.
86(4)Where, after receiving a report of the Chief Executive Officer, or the officer or person appointed by him, the Board decides that it is unnecessary to proceed with the inquiry, the Board, after notifying the parties concerned that it intends to terminate the inquiry, may terminate the inquiry without a hearing and, notwithstanding any provision of this Act, take no further proceedings with respect thereto.
86(5)Where upon inquiry the Board is satisfied that a buyer, buyers’ organization, a fisherman, fishermen’s organization, council of fishermen’s organizations, or any other person is doing or has done an act prohibited by this Act and referred to in subsection (1), the Board
(a) shall make an order directing the buyer, buyers’ organization, a fisherman, fishermen’s organization, council of fishermen’s organizations, or other person to cease doing the Act,
(b) may, in the same order, or in a subsequent order, direct the buyer, buyers’ organization, a fishermen, fishermen’s organization, council of fishermen’s organizations, or other person to rectify the act which determination, where applicable, may include a requirement that a buyer resume business dealings with the person concerned, with or without compensation, or compensation in lieu of the resumption of business dealings for loss of earnings and other benefits, with such compensation assessed against the buyer, buyers’ organization, the fisherman, fishermen’s organization, council of fishermen’s organizations or other persons, jointly or severally,
(c) may in the same order or in a subsequent order declare, where applicable, a refusal to purchase fish to be contrary to the Act,
(d) may in the same order or in a subsequent order determine what, if anything, in addition to or in substitution for the provision made in paragraph (a), (b) or (c), the buyer, buyers’ organization, fisherman, fishermen’s organization, council of fishermen’s organizations, or other person shall do or refrain from doing with respect to the prohibited act.
86(6)An order made under subsection (5) shall be served on the buyer, buyers’ organization, fisherman, fishermen’s organization, council of fishermen’s organizations, or other person affected by the order and the buyer, buyers’ organization, fisherman, fishermen’s organization, council of fishermen’s organizations, or other person shall, notwithstanding the provisions of any collective agreement, comply with the order within the time provided in the order for compliance.
86(7)Where, in the opinion of the Board, a complaint under subsection (1) is without merit, the Board may reject the complaint at any time.
86(8)Where a fisherman, fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization, or other person, has failed to comply with any of the terms of an order made under subsection (5), any fisherman, fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization, or other person affected by the order, may, after the expiration of fourteen days from the date of the release of the order or the date provided in the order for compliance, whichever is later, notify the Board in writing of such failure, and thereupon the Board shall file a copy of the order, exclusive of the reasons therefor, in the prescribed form, in The Court of King’s Bench of New Brunswick, whereupon the order shall be entered as a judgment or order of that Court and is enforceable as such.
86(9)Where the matter of a complaint under subsection (1) has been settled, whether through the endeavours of the Chief Executive Officer, or the officer or person appointed by him, or otherwise, and the terms of the settlement have been put in writing and signed by the parties or their agents, the settlement is binding upon the parties, fisherman, fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization, or other person who has agreed to the settlement and shall be complied with according to its terms, and a complaint that the fisherman, fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization, or other person who has agreed to the settlement has not complied with the terms of the settlement shall be deemed to be a complaint under subsection (1).
86(10)Except where the Board terminates the inquiry under subsection (4), when a person proceeds under this section to seek a remedy for any alleged wrongful refusal to sell or to purchase fish, refusal to continue to sell or to purchase fish, discrimination, intimidation, coercion, threat, or other act or practice contrary to this Act and referred to in subsection (1), no action, suit, or proceeding shall thereafter be brought by him in any court in respect of the alleged wrongful refusal to sell or to purchase fish, refusal to continue to sell or to purchase fish, discrimination, intimidation, coercion, threat or other act or practice contrary to this Act.
86(11)The Board shall not inquire into a complaint under this section unless the complaint is made within ninety days of the date on which the act complained of first occurred.
2023, c.17, s.97
Complaint, failure to comply with section 30
87(1)Where the Minister receives a complaint in writing from a party to collective bargaining that any other party to the collective bargaining has failed to comply with section 30, he may refer it to the Board.
87(2)Where a complaint from a party to collective bargaining is referred to the Board under subsection (1), the Board shall inquire into the complaint, and may dismiss the complaint or may make an order requiring any party to the collective bargaining to do such things as, in the opinion of the Board, are necessary to secure compliance with section 30.
87(3)Every buyer, buyers’ organization, fisherman, fishermen’s organization, council of fishermen’s organizations, or other person in respect of whom an order is made under this section, shall comply with the order, and in the event of a neglect to do so, the Board, upon the application of an affected party, may revoke a certification or an accreditation.
Offences, failure to comply with section 31, boycott
88(1)Every buyer or buyers’ organization and every person acting on behalf of a buyer or buyers’ organization, who increases or decreases the price paid for fish or the price at which any necessary fishing supplies are sold to fishermen contrary to section 31 is guilty of an offence and, on conviction, is liable to a fine not exceeding
(a) ten dollars in respect of each fisherman in respect of whom the price was so altered, or
(b) two hundred and fifty dollars,
whichever is less, for each day during which any such alteration continues contrary to this Act.
88(2)Every buyer or buyers’ organization who declares or causes a boycott contrary to this Act is guilty of an offence and, on conviction, is liable to a fine not exceeding two hundred and fifty dollars for each day that the boycott exists.
88(3)Every person acting on behalf of a buyer or buyers’ organization who declares or causes a boycott contrary to this Act is guilty of an offence and, on conviction, is liable to a fine not exceeding two hundred and fifty dollars for each day that the boycott exists.
88(4)Every fishermen’s organization or council of fishermen’s organizations that declares or causes a boycott contrary to this Act is guilty of an offence and, on conviction, is liable to a fine not exceeding two hundred and fifty dollars for each day that the boycott exists.
88(5)Every person acting on behalf of a fisherman, fishermen’s organization or a council of fishermen’s organizations who declares or causes a boycott contrary to this Act is guilty of an offence and, on conviction, is liable to a fine not exceeding two hundred and fifty dollars for each day that the boycott exists.
88(6)Every buyer, buyers’ organization, fisherman, fishermen’s organization, council of fishermen’s organizations, or other person acting on behalf of a buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or any other person, who takes, authorizes or participates in a boycott vote as may be the case, contrary to this Act, is guilty of an offence and, on conviction, is liable to a fine not exceeding two hundred and fifty dollars.
1990, c.22, s.16
Offences, failure to comply with sections 4 to 8, 40 or 41, refusal to comply with order
89(1)Every fisherman, fishermen’s organization, council of fishermen’s organizations, buyer or buyers’ organization who violates sections 4 to 8, 40 or 41, is guilty of an offence and, on conviction, is liable
(a) if an individual, to a fine not exceeding one hundred dollars, or
(b) if a corporation, fishermen’s organization, council of fishermen’s organizations or buyers’ organization, to a fine not exceeding five hundred dollars.
89(2)Each day that a fisherman, fishermen’s organization, council of fishermen’s organizations, a buyer or a buyers’ organization violates any provision of this Act within subsection (1), the violation constitutes a separate offence.
89(3)Where a buyer or buyers’ organization is convicted for violation of paragraph 4(2)(a), paragraph 4(4)(a) or (c), or subsection 7(8) by reason of having refused to purchase fish or to continue to purchase fish from a fisherman or fishermen’s organization contrary to this Act, the convicting judge may, in addition to any other penalty authorized by this Act, order the buyer or buyer’s organization to pay compensation for the loss of income to the fisherman or fishermen’s organization not exceeding such sum as in the opinion of the judge is equivalent to the income that would have accrued to the fisherman up to the date of conviction but for such refusal to purchase fish or to continue to purchase fish and may order the buyer or buyers’ organization to resume normal business dealings with the fisherman or fishermen’s organization at such date as in the opinion of the judge is just and proper in the circumstances.
89(4)Every fisherman, fishermen’s organization, council of fishermen’s organizations, buyer or buyers’ organization who, contrary to this Act, refuses or neglects to comply with any order of a judge made under this section is guilty of an offence and liable to a fine not exceeding one hundred dollars for each day during which such refusal or neglect continues.
1990, c.22, s.16
Offence and penalties
90(1)Every fisherman, fishermen’s organization, council of fishermen’s organizations, buyer, buyers’ organization or other person who violates any provision of this Act or of any decision, determination, interim order, direction, declaration or ruling made under this Act or any award made by an arbitrator or arbitration board constituted under the provisions of section 36, is guilty of an offence and, except where some other penalty is by this Act provided for the act, refusal or neglect, on conviction, is liable
(a) if an individual, to a fine not exceeding one hundred dollars, or
(b) if a corporation, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization, to a fine not exceeding five hundred dollars.
90(2)Each day that a fisherman, fishermen’s organization, council of fishermen’s organizations, buyer or buyers’ organization violates any provision of this Act or of any decision, determination, interim order, order, direction, declaration or ruling made under this Act or any award made by an arbitrator, or arbitration board constituted under the provisions of section 36, the violation constitutes a separate offence.
1990, c.22, s.16
Offences, general
91(1)An information or complaint in respect of a violation of the provisions of this Act may be for one or more offences, and no information, warrant, conviction or other proceedings in any such prosecution is objectionable or insufficient by reason of the fact that it relates to two or more offences.
91(2)Where a corporation, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization is guilty of an offence under this Act, every officer or agent thereof who assented to the commission of the offence shall be deemed to be a party to and guilty of the offence.
91(3)A prosecution for an offence under this Act may be instituted against a fisherman, buyer, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization in the name of the fisherman, buyer, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization, as the case may be.
91(4)A prosecution for an offence under this Act may be instituted by a fisherman, buyer, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization in the name of the fisherman, buyer, fishermen’s organization, council of fishermen’s organizations, buyers’ organization, as the case may be.
91(5)In any prosecution for an offence under this Act, any act or thing done or omitted by an officer or agent of a fishermen’s organization, or council of fishermen’s organizations, or buyers’ organization within the scope of his authority to act on behalf of the fishermen’s organization, council of fishermen’s organizations, or buyers’ organization shall be deemed to be an act or thing done or omitted by the fishermen’s organization, council of fishermen’s organizations, or buyers’ organization.
91(6)In any prosecution for an offence under this Act against a buyer or buyers’ organization, the act or omission of any manager, superintendent or other person who exercises management functions, shall be deemed to be the act or omission of the buyer or buyers’ organization, as the case may be, by whom such person was employed, unless and until it is proved that such act or omission was without the knowledge or consent of such buyer or buyers’ organization.
2001, c.44, s.2
Written consent of Board required for prosecution
92(1)Subject to subsection (3), no prosecution for an offence under this Act shall be instituted except with the consent in writing of the Board.
92(2)An application under subsection (1) for consent to institute a prosecution may be made by a person, a fishermen’s organization, a council of fishermen’s organizations, a corporation or a buyers’ organization, and, if consent is given by the Board, the information may be laid by the person or by an officer or agent of a fishermen’s organization or a council of fishermen’s organizations on behalf of the person, or by any officer or agent of the fishermen’s organization, council of fishermen’s organizations, corporation or buyers’ organization.
92(3)A certificate, signed by the Chairperson or a Vice-Chairperson of the Board and dated, certifying that the Board consents to the prosecution of the fisherman, buyer, fishermen’s organization, council of fishermen’s organizations, or buyers’ organization named therein for an offence under this Act alleged to have been committed, or in the case of a continuing offence, alleged to have commenced on a date therein set out, is a sufficient consent for the purpose of subsection (1).
92(4)Subsection (1) does not apply to a prosecution instituted by the Attorney General.
92(5)The Board or the Minister or, subject to the direction of the Minister, an inquiry officer when not acting under an appointment under section 86, may refer any alleged offence under this Act to the Attorney General for his consideration with a view to instituting a prosecution.
92(6)Notwithstanding any other Act, proceedings in respect of a prosecution for an alleged offence under this Act may be instituted any time within one year after the time when the subject matter of the prosecution arose.
2001, c.44, s.3
Proceedings to enforce, capacity
93(1)Where a fishermen’s organization, council of fishermen’s organizations, or an unincorporated buyers’ organization is affected by an order of the Board made under section 86, or a decision or award of an arbitrator or an arbitration board under the provisions of section 44, proceedings to enforce the order, or award may be instituted in the Court by or against such fishermen’s organization, council of fishermen’s organizations, or buyers’ organization in the name of the fishermen’s organization, council of fishermen’s organization, or buyers’ organization as the case may be.
93(2)A fishermen’s organization, council of fishermen’s organizations, or buyers’ organization is capable of suing or being sued and for such purposes, or for any purpose of this Act for which provision is not otherwise made, the fishermen’s organization, council of fishermen’s organizations, or buyers’ organization is a legal entity.
ADMINISTRATION
Administration of Act
94The Minister is charged with the administration of this Act and shall exercise the powers and perform the duties imposed on the Minister by this Act.
2001, c.44, s.4
Repealed
95Repealed: 2001, c.44, s.5
2001, c.44, s.5
Repealed
96Repealed: 2001, c.44, s.6
1983, c.4, s.8; 2001, c.44, s.6
Powers of Board
97(1)The Board and each member thereof shall for the purpose of this Act have the powers of a commissioner under the Inquiries Act.
97(2)The Board may receive and accept evidence and information on oath or affirmation, affidavit or otherwise as in its discretion it may deem fit and proper, whether admissible as evidence in a court of law or not.
97(3)The Board shall determine its own procedure but shall in every case, except as otherwise provided in this Act, give full opportunity to all interested parties to any proceeding to present evidence and to make representations, and the Board may make rules governing its procedure and the exercise of its powers and prescribing such forms as are deemed advisable.
97(4)Repealed: 2001, c.44, s.7
97(5)Repealed: 2001, c.44, s.7
2001, c.44, s.7
Repealed
98Repealed: 2001, c.44, s.8
2001, c.44, s.8
Repealed
99Repealed: 2001, c.44, s.9
1984, c.35, s.4; 2001, c.44, s.9
Executive Committee
100The Board may appoint an Executive Committee of the Board composed of the Chairperson of the Board and the Chief Executive Officer or composed of the Chairperson and the Secretary of the Board when the Chairperson is acting Chief Executive Officer.
2001, c.44, s.10
Duties and powers of Executive Committee or examiner
101(1)An Executive Committee appointed under section 100, unless the Board otherwise directs, may, for the purpose of determining
(a) whether the majority of the fishermen in a unit are members in good standing of a fishermen’s organization,
(b) whether a majority of the fishermen in a unit who have voted have selected a fishermen’s organization to be their bargaining agent,
(c) whether a fishermen’s organization or council of fishermen’s organizations no longer represents a majority of fishermen in the unit for which it was certified in a collective agreement,
(d) whether a buyers’ organization is entitled to accreditation,
(e) whether a buyers’ organization is subject to de-accreditation,
(f) whether a fishermen’s organization, council of fishermen’s organizations, or buyers’ organization is a fishermen’s organization, council of fishermen’s organizations or buyers’ organization,
(g) whether a council of fishermen’s organizations or buyers’ organization is vested with appropriate bargaining authority, or
(h) any other question under this Act where an inquiry or an examination of records may be required,
make or cause to be made such examination of records or other inquiries, including the holding of hearings as it deems necessary, or take or supervise the taking of such votes as it deems expedient to direct, and an Executive Committee may prescribe the nature of the evidence to be furnished to the Committee.
101(2)The Board or an Executive Committee may appoint a person, to be known as an examiner, to do any of the things that may be done by an Executive Committee under subsection (1), whether a Committee is appointed or not.
101(3)The evidence taken before an Executive Committee or before an examiner may, save for all just exceptions, be received or acted upon by the Board in determining a question before the Board.
101(4)The Board may delegate to its Executive Committee such powers, functions and duties as the Lieutenant-Governor in Council may approve.
101(5)Nothing in this section shall be deemed to preclude the Board from assigning to a member, to an Executive Committee or to any person the performance of routine duties or functions not constituting a delegation of power.
2001, c.44, s.11
Powers and duties of Board
102(1)The Board has and shall exercise such powers and perform such duties as are conferred or imposed upon it by or under this Act.
102(2)Without limiting the generality of subsection (1), the Board has power,
(a) where the Board determines that a representation vote is to be taken amongst the fishermen in a bargaining unit, to hold such additional representation votes as it considers necessary to determine the true wishes of the fishermen,
(b) where, in the taking of a representation vote, the Board determines that the fishermen are to be given a choice between two or more fishermen’s organizations or councils of fishermen’s organizations,
(i) to include on any ballot a choice indicating that a fisherman does not wish to be represented by a fishermen’s organization or council of fishermen’s organizations, and
(ii) when it decides to hold such additional representation votes as may be necessary, to eliminate from the choice on the ballot the fishermen’s organization or council of fishermen’s organizations that has obtained the lowest number of votes cast in the previous representation vote,
(c) to bar an unsuccessful applicant for any period not exceeding ten months from the date of the dismissal of the unsuccessful application, or to refuse to entertain a new application by an unsuccessful applicant or by any of the fishermen affected by an unsuccessful application or by any person or fishermen’s organization or council of fishermen’s organizations representing such fishermen within any period not exceeding ten months from the date of the dismissal of the unsuccessful application.
(d) notwithstanding sections 9 and 21 where an application has been made for certification of a fishermen’s organization or council of fishermen’s organizations as bargaining agent for fishermen in a bargaining unit, or for a declaration that the fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in a bargaining unit, and a final decision on the application has not been issued by the Board at the time a subsequent application for such certification or for such a declaration is made with respect to any of the fishermen affected by the original application,
(i) to treat the subsequent application as having been made on the date of the making of the original application,
(ii) to postpone consideration of the subsequent application until a final decision has been issued on the original application and thereafter consider the subsequent application subject to any final decision issued by the Board on the original application, or
(iii) to refuse to entertain the subsequent application,
(e) to determine the form in which and the time as of which evidence of membership in a fishermen’s organization or council of fishermen’s organizations, of objection by fishermen to certification of a fishermen’s organization, or of signification by fishermen that they no longer wish to be represented by a fishermen’s organization or council of fishermen’s organizations shall be presented to the Board on an application for certification or for a declaration terminating bargaining rights, and to refuse to accept any evidence of membership, objection or signification that is not presented in the form and as of the time so determined,
(f) to determine the form in which and the time as of which evidence of representation by a buyers’ organization, of objection by buyers to accreditation of a buyers’ organization or of signification by buyers that they no longer wish to be represented by a buyers’ organization shall be presented to the Board in an application for accreditation or for a declaration terminating bargaining rights of a buyers’ organization, and to refuse to accept any evidence of representation, objection or signification that is not presented in the form and as of the time so determined,
(g) to require persons or fishermen’s organizations or council of fishermen’s organizations, whether or not they are parties to proceedings before the Board, to post and to keep posted upon their premises in a conspicuous place or places, where they are most likely to come to the attention of all persons concerned, any notices that the Board deems necessary to bring to the attention of such persons in connection with any proceedings before the Board,
(h) to authorize any person to do anything that the Board may do under paragraph (g) and to report to the Board thereon,
(i) where in any proceedings before the Board, the Board is satisfied that a bona fide mistake has been made with the result that the proper person or fishermen’s organization or council of fishermen’s organizations has not been named as a party or has been incorrectly named, to order the proper person or fishermen’s organization or council of fishermen’s organizations to be substituted or added as a party to the proceedings or to be correctly named upon such terms as appear to the Board to be just, and
(j) where in any proceedings before the Board, the Board is satisfied that a bona fide mistake has been made in the completion of the technical details of a document, to postpone disposition on the matter to allow the document to be corrected upon such terms as appear to the Board to be just.
2001, c.44, s.12
Reference to Commission, request under subsection 62(2)
103(1)Where a request is made under the provisions of subsection 62(2), the Minister may refer to the Board any question that arises that in his opinion relates to his authority to make an appointment under any such provision that is mentioned in the reference, and the Board shall report to the Minister its decision on the question.
103(2)Where a question referred under subsection (1) involves an issue as to whether one fishermen’s organization is the successor of another fishermen’s organization or whether a business has been sold by one buyer to another, the Board has the same powers and authority as it has under sections 47 to 49, as the case may be, as if an application had been made thereunder, and the Board may issue such directions as to the conduct of the proceedings as it deems advisable.
Opinion of Court of Appeal on question of law
104(1)The Board may of its own motion state a case in writing, signed by the Chairperson or a Vice-Chairperson of the Board, for the opinion of The Court of Appeal of New Brunswick upon any question that, in the opinion of the Board, is a question of law.
104(2)The Court of Appeal of New Brunswick shall hear and determine any question of law arising in the stated case and remit the matter to the Board, with the opinion of the Court thereon.
104(3)No costs shall be awarded in a case stated under this section.
2001, c.44, s.13
Reconsideration by Board, private clause
105(1)Nothing in subsection 108(1) shall be deemed to preclude the Board from reconsidering any decision, determination, interim order, order, direction, declaration or ruling made by it and the Board may at any time, if it considers it advisable to do so, upon application made by any fisherman, buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or other person, or of its own motion, reconsider any decision, determination, interim order, order, direction, declaration or ruling made by it and vary or revoke any such decision, determination, interim order, order, direction, declaration or ruling.
105(2)No decision, determination, interim order, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, judicial review, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
1986, c.4, s.21
Remuneration, allowances, clerical or other assistance, expenses
106(1)The chairman and members of a conciliation board, the chairman and members of a fishing industry inquiry commission, a mediator or a mediation officer, and a person appointed by the Chief Executive Officer under section 86 shall be paid remuneration for their services and expenses as the Lieutenant-Governor in Council may prescribe.
106(2)Every person who is summoned by the Board, or an arbitrator or arbitration board, or a conciliation board, or fishing industry inquiry commission, or a mediator or mediation officer and duly attends as a witness is entitled to an allowance for expenses determined in accordance with the scale for the time being in force with respect to witnesses in civil suits in The Court of King’s Bench of New Brunswick.
106(3)The Minister may provide a conciliation board, a fishing industry inquiry commission, a mediator or mediation officer, or other person appointed under section 86 with a secretary, stenographer, and such clerical or other assistance as the Minister deems necessary for the performance of its or his or her duties and fix their remuneration.
106(4)All expenses of a conciliation board, a fishing industry inquiry commission, a mediator or mediation officer, or other person appointed under section 86 shall be allowed and paid upon the presentation of an account which shall be approved by the chairman of the conciliation board or commission when the expenses relate to the conciliation board or commission.
106(5)One or more inquiry officers may be appointed under the provisions of the Civil Service Act to assist in the administration of this Act.
2001, c.44, s.14; 2023, c.17, s.97
Repealed
107Repealed: 2001, c.44, s.15
2001, c.44, s.15
Exclusive jurisdiction of Board, exclusion of category of fishermen, certain questions, findings and conclusions under section 101
108(1)The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes of this Act.
108(2)The Board may, upon a written request and following hearings of the parties concerned, exclude certain categories of fishermen from the provisions of this Act if the Board is satisfied that it is not appropriate to include that category of fishermen in a system of collective bargaining and the Board may, before acting under this section, take such steps as it deems appropriate for the purpose of ascertaining the wishes of the fishermen as to the appropriateness of the exclusion.
108(3)Without restricting the generality of subsection (1), if in any proceeding before the Board a question arises under this Act as to whether
(a) a person is an inshore fisherman, a midshore fisherman or a buyer,
(b) an organization or association is a buyers’ organization or a fishermen’s organization or a council of fishermen’s organizations,
(c) a collective agreement has been entered into,
(d) a person is or what persons are bound by a collective agreement,
(e) a person is or what persons are parties to or bound by a collective agreement,
(f) a collective agreement has been entered into on behalf of any person,
(g) a collective agreement is in full force and effect,
(h) a person is bargaining collectively or has bargained collectively,
(i) a group of fishermen is a unit appropriate for collective bargaining,
(j) a fisherman belongs to a group engaged in either inshore or midshore fishing,
(k) a person is a member in good standing of a fishermen’s organization,
(l) a person is included in or excluded from a unit,
(m) a group of buyers is a unit appropriate for collective bargaining and accreditation,
(n) a fisherman or person is engaged in fishing,
(o) a buyer operates a business in the fishing industry,
(p) fishing, fishermen’s organization or bargaining practice exists,
(q) a buyer is included in or excluded from an accreditation, or
(r) a buyer, buyers’ organization, fishermen’s organization, council of fishermen’s organizations, or any other person is doing or has done any act prohibited by this Act,
the Board has exclusive jurisdiction to determine the question and its decision thereon is final and conclusive for all purposes of this Act.
108(4)Where an Executive Committee has made or caused an inquiry to be made under subsection 101(1) or an examiner has been appointed under subsection 101(2), or where a delegation has been made under subsection 101(4), the findings and conclusions on facts, subject to subsection 101(3), are final and conclusive for all purposes, but nevertheless if the Board considers it advisable to do so, the findings and conclusions on facts may be reconsidered and varied or revoked.
2001, c.44, s.16
GENERAL
Filing of notice indicating person authorized to accept service
109(1)Every fishermen’s organization, council of fishermen’s organizations and unincorporated buyers’ organization in New Brunswick that has members in New Brunswick shall, on or before such date as may fixed by the Lieutenant-Governor in Council, or within fifteen days after it has enrolled its first member, whichever is later, file with the Board and with the Minister a notice giving the name and address of a person resident in New Brunswick who is authorized by the fishermen’s organization, council of fishermen’s organizations or unincorporated buyers’ organization to accept on its behalf service of process and notices under this Act.
109(2)Whenever a fishermen’s organization, council of fishermen’s organizations or unincorporated buyers’ organization changes the authorization referred to in subsection (1), it shall file with the Board and with the Minister notice thereof within fifteen days after making such change.
109(3)Service on the person named in a notice or in the latest notice, as the case may be, filed under subsection (1) or (2) is a good and sufficient service for the purposes of this Act on the fishermen’s organization, council of fishermen’s organizations or unincorporated buyers’ organization that filed the notice.
109(4)Where the buyer is an extra-provincial company of which the board of directors does not meet in the Province,
(a) the company shall appoint a person resident in the Province to accept on its behalf service of process and notices under this Act and with authority
(i) to bargain collectively,
(ii) to conclude a collective agreement with the certified bargaining agent, and
(iii) to sign such agreement on behalf of the company;
(b) the collective agreement signed by such person is binding on the company; and
(c) the company is guilty of an offence if it fails to appoint a person in compliance with paragraph (a).
Who can sign notice or collective agreement
110For the purposes of this Act, an application to the Board or the Minister or any notice, or a collective agreement, may be signed, where it is made, given or entered into
(a) by a buyer who is an individual, by the buyer himself,
(b) by several individuals, who are jointly buyers and not within the provision made in paragraph (c), by a majority of those individuals,
(c) by buyers who are represented by a buyers’ organization authorized by the buyers, by the president and secretary of the buyers’ organization, or by any two officers thereof, or by any person authorized for such purpose by resolution duly passed at a meeting of the buyers’ organization,
(d) by a corporation, by one of its authorized managers or by one or more of the principal executive officers or, where the corporation is an extra-provincial company within the meaning of subsection 109(4), by the person appointed pursuant to that subsection, or
(e) by a fishermen’s organization or council of fishermen’s organizations, by the president and secretary thereof, or by any two officers thereof, or by any person authorized for such purposes by resolution duly passed at a meeting of the fishermen’s organization or council of fishermen’s organizations.
Service
111(1)Any notice, interim order, order, decision, determination, direction, declaration, ruling, report, award or other paper or document, required or authorized to be served or sent for the purposes of this Act or any proceeding taken under it, may be served or sent by delivering it, or a true copy thereof,
(a) to, or at the residence of, the person on or to whom service is authorized under section 109,
(b) to, or at the business address of, the person on or to whom service is authorized under section 109, or
(c) to any person who is apparently in charge at the business address of the person on or to whom service is authorized under section 109.
111(2)Any instrument to which subsection (1) refers, whether provided for or otherwise in subsection (1), may be served or sent by delivering it, or a true copy thereof,
(a) to, or at the residence of, the person on whom service is to be made,
(b) to, or at the business address of, the person on whom service is to be made,
(c) to any person who is apparently in charge at the business address of the person on whom service is to be made, or
(d) where delivery is to be effected on a fishermen’s organization, council of fishermen’s organizations, or buyers’ organization, to an officer of the fishermen’s organization, council of fishermen’s organizations, or buyers’ organization.
111(3)Any instrument to which subsection (1) refers for the purposes of this Act or of any proceedings taken under it, may be sent through the mail, and if sent through the mail, shall be presumed, unless the contrary is proved, to have been received by the addressee in the ordinary course of mail.
111(4)Where an instrument to which subsection (3) refers is required to be served upon, or sent to, a buyer, the package containing it shall, for the purpose of subsection (3), be deemed to be properly addressed if addressed to the establishment or place of business of which he has charge, with the addition of the proper postal address thereof, although it does not name the person who is the buyer.
111(5)Proof by a person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations of failure to receive a determination, order, interim order or direction under section 86, or a decision of an arbitrator or of an arbitration board constituted under the provisions of section 44 sent by mail to such person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations addressed to him or it at his or its latest known address is a defence by such person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations to an application for consent to institute a prosecution, to a prosecution, or to any proceedings to enforce as a judgment or order of the Court such determination, interim order, order, direction, decision or award.
111(6)Where a notice has been given under section 29 by registered mail and the addressee claims that he or it has not received the notice, the person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations that gave the notice may give a second notice to the addressee forthwith after he or it ascertains that the first notice had not been received, but in no case may the second notice be given more than three months after the day on which the first notice was mailed, and the second notice has the same force and effect for the purposes of this Act as the first notice would have had if it had been received by the addressee.
111(7)An application for certification, for accreditation, for a declaration that a fishermen’s organization or council of fishermen’s organizations no longer represents the fishermen in a bargaining unit or for de-accreditation of a buyers’ organization, if sent by registered mail addressed to the Board at Fredericton, shall be deemed to have been made on the date on which it was so mailed.
111(8)A decision, determination, interim order, order, direction, declaration or ruling of the Board, a notice from the Minister that he does not deem it advisable to appoint a conciliation officer or a conciliation board, a notice from the Minister of a report of a conciliation officer, a report of a conciliation board or of a mediator, or mediation officer, or a decision or award of an arbitrator or of an arbitration board constituted under the provisions of section 44,
(a) if sent by mail to the person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations concerned addressed to him or it at his or its last known address, shall be deemed to have been released on the second day after the day on which it was so mailed, or
(b) if delivered to a person, buyers’ organization, fishermen’s organization or council of fishermen’s organizations concerned at his or its latest known address shall be deemed to have been released on the day next after the day on which it was so delivered.
2023, c.17, s.97
Evidence – documents, signatures, appointments, orders, directions
112(1)The production in any court of a document purporting to be or to contain a copy of a decision, determination, interim order, order, direction, declaration, ruling, report or award of the Board, a conciliation officer, a mediator, a mediation officer, a conciliation board, an arbitrator or an arbitration board and purporting to be signed by a member of the Board or its Chief Executive Officer, the conciliation officer, the mediator, the mediation officer, the chairman of the conciliation board, the arbitrator or the chairman of the arbitration board, as the case may be, is prima facie proof of such document without proof of the appointment, authority or signature of the person who signed the document.
112(2)A certificate purporting to be signed by the Minister or by the Deputy Minister or by an official designated by the Minister stating that a report, request or notice was or was not received or given by the Minister pursuant to this Act, and stating, if so received or given, the date upon which it was so received or given, shall be prima facie proof of the facts stated therein without proof of the signature or of the official character of the person who signed the same.
112(3)Where an appointment, order or direction is required to be made under this Act by the Minister, he may authorize the Deputy Minister to make the appointment, order or direction, and a document purporting to be or to contain a copy of such an appointment, order or direction and purporting to be signed by the Minister or by the Deputy Minister shall be accepted by any court as evidence of the appointment, order or direction.
Evidence – records, testimony, information, reports, witnesses
113(1)The records of a fishermen’s organization relating to membership or any records that may disclose whether a person is or is not a member of a fishermen’s organization or does or does not desire to be represented by a fishermen’s organization or council of fishermen’s organizations produced in a proceeding before the Board is for the exclusive use of the Board and its officers and shall not, except with the consent of the Board, be disclosed, and no person shall, except with the consent of the Board, be compelled to disclose whether a person is or is not a member of a fishermen’s organization or does or does not desire to be represented by a fishermen’s organization or council of fishermen’s organizations.
113(2)No member of the Board, nor its Chief Executive Officer, nor any of its other officers, clerks, or servants shall be required to give testimony in any civil suit respecting information obtained in the discharge of their duties under this Act.
113(3)No information or material furnished to or received by a conciliation officer or a mediator or a mediation officer
(a) under this Act, or
(b) in the course of any endeavour that a conciliation officer or a mediation officer may make under the direction of the Minister to effect a collective agreement after the Minister
(i) has released the report of a conciliation board, or
(ii) has informed the parties that he does not deem it advisable to appoint a conciliation board,
shall be disclosed except to the Minister, the Deputy Minister, or officials responsible for the direction of conciliation and mediation services under the Minister.
113(4)No report of a conciliation officer or mediator or mediation officer shall be disclosed except to the Minister, the Deputy Minister or officials responsible for the direction of conciliation and mediation services under the Minister, but nothing in this section shall preclude the report of any such officer being made available to a conciliation board where a board is established subsequently in a proceeding that was before the conciliation officer or mediator or mediation officer.
113(5)The Minister, the Deputy Minister or officials responsible for the direction of conciliation and mediation services under the Minister, any conciliation officer or mediator or mediation officer appointed under this Act, or any person designated by the Minister to endeavour to effect a collective agreement is not a competent or compellable witness in proceedings before any court or other tribunal respecting any information, material or report mentioned in subsection (3) or (4) or respecting any information or material furnished to or received by him or any statement made to or by him in an endeavour to effect a collective agreement.
113(6)The chairman or any other member of a conciliation board is not a competent or compellable witness in proceedings before any court or other tribunal respecting
(a) any information or material furnished to or received by him,
(b) any evidence or representation submitted to him or
(c) any statement made by him,
in the course of his duties under this Act.
113(7)No information or material furnished to or received by the Chief Executive Officer or by any officer or person appointed by him under section 86 and no report of any such officer or person shall be disclosed except to the Board or as authorized by the Board, and no member of the Board and no such officer or person is a competent or compellable witness in proceedings before any court or other tribunal respecting any such information, material or report.
113(8)In this section “officials responsible for the direction of conciliation and mediation services under the Minister” means those persons designated by the Minister as officials responsible for the direction of conciliation and mediation services under him.
Documents – constitution, rules, by-laws, direction, audited financial statement, other
114(1)Every fishermen’s organization, council of fishermen’s organizations or buyers’ organization shall file with the Minister a copy, certified by its proper officers to be true and correct, of its constitution, rules and by-laws, or other instruments or documents containing a full and complete statement of its objects and purposes.
114(2)Whenever a fishermen’s organization, council of fishermen’s organizations or buyers’ organization makes a revision of its constitution, rules or by-laws, it shall file with the Minister the revised provisions of the constitution, or the revised rules or by-laws within sixty days after such revisions.
114(3)The Board may direct a fishermen’s organization, council of fishermen’s organizations or buyers’ organization to file with the Board within the time prescribed in the direction a copy of its constitution, rules and by-laws and a declaration of its president or secretary setting forth the names and addresses of its officers and the fishermen’s organization, council of fishermen’s organizations, or buyers’ organization shall comply with such direction.
114(4)Every fishermen’s organization shall upon the request of any member furnish him, without charge, with a copy of an audited financial statement of its affairs to the end of its last fiscal year, certified by its treasurer or other official responsible for the handling and administration of its funds to be a true copy, and, upon the complaint of any member that the fishermen’s organization has failed to furnish such a statement to him the Board may direct the fishermen’s organization to file with the Chief Executive Officer, within such time as the Board determines, a copy of the audited financial statement of its affairs to the end of its last fiscal year verified by the affidavit of its treasurer or other officer responsible for the handling and administration of its funds, and to furnish a copy of such statement to such members of the fishermen’s organization as the Board in its discretion directs, and the fishermen’s organization shall comply with such direction.
114(5)No proceedings under this Act shall be invalidated by reason of a failure to comply with subsections (1) to (4).
Defect in form or technical irregularity
115No proceeding under this Act shall be deemed invalid by reason of any defect in form or any technical irregularity.
Fines paid to Consolidated Fund
116All fines and penalties recovered under this Act shall be forthwith paid into the Consolidated Fund for the use of the Province.
REGULATIONS
Regulations
117The Lieutenant-Governor in Council may make regulations
(a) respecting the time within which anything authorized by this Act shall be done;
(b) providing for and regulating the engagement of experts and other technical assistants by mediators, mediation officers and conciliation boards;
(c) respecting the retention of documents required to be filed under this Act with the Board or the Minister;
(d) requiring the filing with the Minister of awards of arbitrators and arbitration boards;
(e) prescribing forms and providing for their use, including the form in which decisions, directions, determinations, interim orders and orders under provisions of sections 44 and 86 shall be filed in The Court of King’s Bench of New Brunswick;
(f) specifying species of fish, or groups of species, for purposes of subsection 12(2);
(g) generally for the better administration of this Act.
2023, c.17, s.97
Commencement
118This Act or any provision thereof comes into force on a day to be fixed by proclamation.
N.B. Sections 94 to 118 of this Act were proclaimed and came into force May 20, 1982.
N.B. Sections 1 to 93 of this Act were proclaimed and came into force September 15, 1982.
N.B. This Act is consolidated to June 16, 2023.