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1In this Act

“adjudicator” means(arbitre)

(a) except in paragraph 18(1)(g.1) and section 100.1, a person appointed as an adjudicator in accordance with subsection 92(1) and includes a board of adjudication established in accordance with subsection 92(2), and

(b) in paragraph 18(1)(g.1) and section 100.1, a person appointed as an adjudicator by the Board for the purposes of section 100.1;

“approved leave” Repealed: 1993, c.39, s.1

“arbitral award” means an award made by an arbitration tribunal in respect of a dispute;(sentence arbitrale)

“arbitration tribunal” means an arbitration tribunal established under subsection 79(2);(tribunal d’arbitrage)

“bargaining agent” means an employee organization(agent négociateur)

(a) that has been certified by the Board as bargaining agent for a bargaining unit, and

(b) the certification of which has not been revoked;

“bargaining unit” means a group of two or more employees that is determined, in accordance with this Act, to constitute a unit of employees appropriate for collective bargaining;(unité de négociation)

“Board” means the Labour and Employment Board established under the Labour and Employment Board Act;(Commission)

“Chairperson” means the Chairperson of the Board;(président)

“collective agreement” means an agreement in writing entered into under this Act between the employer on the one hand, and a bargaining agent on the other hand, containing provisions respecting terms and conditions of employment and related matters;(convention collective)

“commissioner” means a person appointed by the Board under section 60.1;(commissaire)

“conciliation board” means a board appointed under section 49 for the investigation and conciliation of a dispute;(commission de conciliation)

“conciliator” means a person appointed by the Board under section 47 to assist the parties to collective bargaining in reaching agreement;(conciliateur)

“designated position” means a position that is agreed by the parties to collective bargaining or determined by the Board under section 43.1 to be a designated position within the meaning of that section;(poste désigné)

“dispute” means a dispute or difference arising in connection with the conclusion, renewal or revision of a collective agreement in respect of which a commissioner is appointed under section 60.1, in respect of which a conciliation board is appointed under section 49 or in respect of which an arbitration tribunal is established under subsection 79(2);(différend)

“employee” means a person employed in the Public Service, other than(employée)

(a) a person appointed by the Lieutenant-Governor in Council under an Act of the Legislature to a statutory position described in that Act and to whom the Civil Service Act does not apply,

(b) a person locally engaged outside the Province,

(c) a person whose compensation for the performance of the regular duties of his position or office consists of fees of office, or is related to the revenue of the office in which he is employed,

(c.1) a person not ordinarily required to work more than one-third of the normal period for persons doing similar work,

(c.2) a person employed during all or part of the period from May to September who was enrolled in full-time studies at a secondary or post-secondary educational institution before he or she became employed and who declared at the time he or she became employed his or her intention to return to full-time studies at a secondary or post-secondary educational institution in the same year,

(c.3) a person employed under a co-op program for university or community college students, except for an apprentice as defined in the Apprenticeship and Occupational Certification Act,

(c.4) a person employed under an employment development program under the Employment Development Act or a similar program subsidized by Her Majesty in right of the Province or Her Majesty in right of Canada,

(d) Repealed: 1990, c.30, s.1

(e) Repealed: 2010, c.20, s.1

(f) a person employed by or under the Board, or

(g) a person employed in a managerial or confidential capacity,

and for the purposes of this definition a person does not cease to be employed in the Public Service by reason only of his ceasing to work as a result of a lawful strike or by reason only of his discharge contrary to this or any other Act of the Legislature;

“employee organization” means an organization of employees the purposes of which include the regulation of relations between the employer and its employees for the purposes of this Act, and includes, unless the context otherwise requires, a council of employee organizations;(association d’employés)

“employer” means Her Majesty in right of the Province as represented by,(employeur)

(a) in the case of the three divisions of the public service of the Province specified in Part I, Part II and Part III of the First Schedule, the Board of Management, and

(b) in the case of any portion of the public service of the Province specified in Part IV of the First Schedule, the separate employer concerned;

“grievance” means (grief)

(a) a complaint in writing presented in accordance with a collective agreement or an arbitral award by the employer, an employee or a bargaining agent, and

(b) for the purposes of section 100.1, a complaint in writing presented by an employee in the manner, form and within such time as may be prescribed,

except that for the purposes of grievances with respect to discharge or suspension, a reference to an “employee” includes a former employee or a person who would be a former employee but for the fact that at the time of the person’s discharge or suspension the person was a person employed in a managerial or confidential capacity;

“initial certification period” means, in respect of employees in any occupational category, the period ending on the day specified in the regulations applicable to that occupational category;(période d’accréditation initiale)

“occupational category” means any of the following categories of employees, namely,(catégorie d’occupations)

(a) scientific and professional,

(b) technical,

(c) administrative,

(d) administrative support, or

(e) operational,

and includes any other occupationally related category of employees determined by the Board to be an occupational category;

“occupational group” means a group of employees specified and defined by the Board of Management under subsection 24(1) or specified and defined by a separate employer under subsection 24(2);(groupe d’occupations)

“parties” means(parties)

(a) in relation to collective bargaining, arbitration or a dispute, the employer and the bargaining agent,

(b) in relation to a grievance presented in accordance with a collective agreement or an arbitral award, the employer and the bargaining agent or the employee who presented the grievance, as the case may be, and

(c) in relation to a grievance under section 100.1, the employer and the employee who presented the grievance;

“person employed in a managerial or confidential capacity” means any person who(préposé à la gestion ou à des fonctions confidentielles)

(a) is employed in a position confidential to the Lieutenant-Governor, a Minister of the Crown, a judge of The Court of Queen’s Bench of New Brunswick, a judge of The Court of Appeal of New Brunswick, a judge of the Provincial Court of New Brunswick or the deputy head or the chief executive officer of any portion of the Public Service,

(b) Repealed: 2009, c.39, s.1

(c) is employed as an industrial relations officer under the Minister of Post-Secondary Education, Training and Labour,

(d) is employed in a position under the Minister of Post-Secondary Education, Training and Labour and

(i) who has executive duties and responsibilities in relation to the development and administration of conciliation, employment standards, labour relations or pension programs, or

(ii) who provides advice to the Minister of Post-Secondary Education, Training and Labour in relation to a program referred to in subparagraph (i),

(e) is employed in a position in the Public Service that, in any case where a bargaining agent for a bargaining unit has been certified by the Board, is designated in the prescribed manner to be a position in which is employed a person

(i) who has executive duties and responsibilities in relation to the development and administration of government programs,

(ii) whose duties include those of a personnel administrator or who has duties that cause the person to be directly involved in the process of collective bargaining on behalf of the employer,

(iii) who is required by reason of the person’s duties and responsibilities to deal formally on behalf of the employer with a grievance,

(iv) who works in confidence with a person employed as a legal officer under the Attorney General or who works in confidence with any person described in paragraph (c) or (d) or subparagraph (i), (ii) or (iii), or

(v) who is not otherwise described in subparagraph (i), (ii), (iii) or (iv) but who in the opinion of the Board should not be included in a bargaining unit by reason of the person’s duties and responsibilities to the employer, or

(f) is employed in the Public Service and who, in connection with an application for certification of a bargaining agent for a bargaining unit, is designated by the Board to be a person described in subparagraph (e)(i), (ii), (iii), (iv) or (v);

“prescribed” means prescribed by regulation of the Board;(prescrit)

“process for resolution of a dispute” means a process for the resolution of a dispute specified in this Act or prescribed by the Board;(méthode de règlement des différends)

“Public Service” means the several portions of the public service of the Province specified from time to time in Part I, Part II, Part III or Part IV of the First Schedule;(services publics)

“remuneration” includes a per diem or other allowance for the performance of the duties of a position or office;(rémunération)

“separate employer” means any portion of the public service of the Province specified from time to time in Part IV of the First Schedule;(employeur distinct)

“strike” includes a cessation of work or a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding, or a slowdown or other concerted activity on the part of employees designed to restrict or limit output.(grève)

“Vice-Chairman” Repealed: 1994, c.52, s.5

1968, c.88, s.1; 1979, c.41, s.102; 1981, c.6, s.1; 1982, c.3, s.60; 1983, c.30, s.28; 1984, c.C-5.1, s.53; 1984, c.44, s.17; 1986, c.8, s.107; 1990, c.30, s.1; 1991, c.53, s.1; 1992, c.2, s.51; 1992, c.48, s.1; 1992, c.88, s.1; 1993, c.39, s.1; 1994, c.52, s.5; 1996, c.68, s.1; 1998, c.41, s.98; 2000, c.26, s.254; 2006, c.16, s.150; 2009, c.39, s.1; 2010, c.20, s.1; 2012, c.52, s.44

Repealed

1.01Repealed: 1993, c.39, s.2

1992, c.88, s.2; 1993, c.39, s.2

Repealed

1.1Repealed: 1992, c.48, s.2

1991, c.53, s.1.1; 1992, c.48, s.2

Act binds Crown

2This Act

(a) binds the Crown in right of the Province, and

(b) applies to the Public Service.

1968, c.88, s.2

Schedule amendment

3The Lieutenant-Governor in Council may add to Part I, Part II, Part III or Part IV of the First Schedule, as the case may be, any portion of the public service of the Province established before or after the commencement of this Act and not otherwise specified in the First Schedule.

1968, c.88, s.3

Idem

4The Lieutenant-Governor in Council may delete any portion of the Public Service specified in Part I, Part II, Part III or Part IV of the First Schedule and shall thereupon add that portion to one of the other Parts of the First Schedule except where that portion no longer has any employees.

1968, c.88, s.4

Employee organization

5Every employee may be a member of an employee organization and may participate in the lawful activities of the employee organization of which he is a member.

1968, c.88, s.5

Rights of employer

6(1)Nothing in this Act affects the right of the employer to determine the organization of the Public Service and to assign duties to and classify positions therein.

6(2)Subject to paragraph 102(3)(a), nothing in this Act affects the right of the employer to engage private contractors or contract work out for any purpose whatsoever.

1968, c.88, s.6

Protections for employees

7(1)No person who is employed in a managerial or confidential capacity shall be a member of an employee organization.

7(2)No person who is employed in a managerial or confidential capacity, whether or not he is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.

7(3)Except as otherwise provided in a collective agreement no person

(a) shall refuse to employ or to continue to employ any person, or otherwise discriminate against any person in regard to employment or any term or condition of employment because the person is a member of an employee organization or was or is exercising any right under this Act,

(b) shall impose any condition on an appointment or in a contract of employment or propose the imposition of any condition on an appointment or in a contract of employment that seeks to restrain an employee or person seeking employment from becoming a member of an employee organization or exercising any right under this Act, or

(c) shall seek by intimidation, by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or any other penalty or by any other means to compel an employee to become, continue to be, refrain from becoming or cease to be a member of an employee organization, or to refrain from exercising any other right under this Act,

but no person shall be deemed to have contravened this section by reason of any act or thing done or omitted in relation to a person employed, or proposed to be employed, in a managerial or confidential capacity.

1968, c.88, s.7

Idem

8(1)Except in accordance with this Act or any regulation, collective agreement or arbitral award, no person employed in a managerial or confidential capacity, whether or not he acts on behalf of the employer, shall discriminate against an employee organization.

8(2)Nothing in subsection (1) prevents a person employed in a managerial or confidential capacity from receiving representations from, or holding discussions with, the representatives of an employee organization.

1968, c.88, s.8

Idem

9Except with the consent of the employer, no officer or representative of an employee organization shall attempt, on the employer’s premises during the working hours of an employee, to solicit the employee to become, continue to be, refrain from becoming or cease to be a member of an employee organization.

1968, c.88, s.9

Repealed

10Repealed: 1994, c.52, s.5

1968, c.88, s.10; 1990, c.30, s.2; 1994, c.52, s.5

Repealed

11Repealed: 1994, c.52, s.5

1968, c.88, s.11; 1994, c.52, s.5

11.1Repealed: 1994, c.52, s.5

1990, c.30, s.2.1; 1994, c.52, s.5

Repealed

12Repealed: 1994, c.52, s.5

1968, c.88, s.12; 1987, c.46, s.1; 1990, c.30, s.3; 1994, c.52, s.5

Repealed

13Repealed: 1994, c.52, s.5

1968, c.88, s.13; 1994, c.52, s.5

Repealed

14Repealed: 1994, c.52, s.5

1968, c.88, s.14; 1994, c.52, s.5

Repealed

15Repealed: 1994, c.52, s.5

1968, c.88, s.15; 1971, c.57, s.1; 1994, c.52, s.5

Appointment and remuneration of conciliators and commissioners

16(1)Repealed: 1994, c.52, s.5

16(2)Repealed: 1994, c.52, s.5

16(3)Repealed: 1994, c.52, s.5

16(4)The Board may appoint and, subject to the approval of the Lieutenant-Governor in Council, fix the remuneration of conciliators, commissioners and other experts or persons having technical or special knowledge to assist the Board in an advisory capacity.

1968, c.88, s.16; 1971, c.57, s.2; 1991, c.53, s.2; 1994, c.52, s.5

Labour and Employment Board

17The Board shall administer this Act and may exercise the powers conferred upon it by this Act and shall perform the duties imposed upon it by this Act or that are incidental to the attainment of the objects of this Act including the making of orders requiring compliance with this Act, with any regulation made hereunder or with any decision made in respect of a matter coming before it.

1968, c.88, s.17

Repealed

17.1Repealed: 1988, c.64, s.11; 1988, c.67, s.10

1987, c.41, s.26; 1988, c.64, s.11; 1988, c.67, s.10

Regulations

18(1)The Board may make regulations of general application respecting

(a) the duration of the initial certification period for each occupational category;

(b) the manner in which positions are to be designated by the employer, or by the Board on objection by a bargaining agent to the designation by the employer, to be positions in which are employed persons described in subparagraphs (e)(i) to (v) inclusive of the definition “person employed in a managerial or confidential capacity”;

(b.1) the manner in which positions are to be designated by a bargaining agent, or by the Board on objection by the employer to the designation by the bargaining agent, to be positions in which are employed persons described in subparagraphs (e)(i) to (v) inclusive of the definition “person employed in a managerial or confidential capacity”;

(c) the determination of units of employees appropriate for collective bargaining;

(d) the certification of bargaining agents for bargaining units and procedures for resolution of disputes;

(e) the hearing or determination of any matter relating to or arising out of the revocation of certification of a bargaining agent, including the rights and privileges that have accrued to and are retained by any employee notwithstanding such revocation;

(f) the rights, privileges and duties that are acquired or retained by an employee organization in respect of a bargaining unit or an employee included therein where there is a merger, amalgamation or transfer of jurisdictions between two or more such organizations;

(g) the establishment of rules of procedure for its hearings;

(g.1) the procedure to be followed for the presenting and adjudication of grievances under section 100.1, including regulations respecting

(i) the manner and form of presenting grievances,

(ii) the level or levels at which grievances may be presented,

(iii) the time within which grievances may be presented at any level in the grievance process,

(iv) the manner in which and the time within which grievances may be referred to the Board,

(v) the manner in which and the time within which grievances shall be referred by the Board to an adjudicator,

(vi) the rules of procedure to be followed by adjudicators,

(vii) the time within which decisions are to be rendered by adjudicators, and

(viii) the form of decisions rendered by adjudicators;

(g.2) the matters, in addition to the matters that may be referred to adjudication under a collective agreement or dealt with under section 100.1, in relation to which a grievance may be presented to the employer, the manner and form of presenting such grievances, the level or levels at which such grievances may be presented, the time within which such grievances may be presented at any level in the grievance process and the manner in which such grievances shall be dealt with;

(g.3) the procedure to be followed for the presenting of grievances by the employer or a bargaining agent where such procedure is not established by the collective agreement or an arbitral award binding on the employer and the bargaining agent;

(h) the specification of the time within which and the persons to whom notices and other documents are to be sent and when such notices are deemed to have been given and received;

(i) the determination of the form in which, and the time as of which, evidence

(i) as to membership of employees in an employee organization,

(ii) of objection by employees to certification of an employee organization, or

(iii) of signification by employees that they no longer wish to be represented by an employee organization

is to be presented to the Board upon an application for certification of or for revocation of certification of a bargaining agent, and the circumstances in which evidence as to membership of employees in an employee organization is to be received by the Board as evidence that such employees wish that employee organization to represent them as their bargaining agent;

(j) the hearing of complaints under section 19,

(j.1) the establishment of rules of procedure in respect of applications under subsection 43.1(8);

(j.2) the hearing of applications under subsection 43.1(8);

(j.3) the manner in which and the time within which the employer shall, from time to time in respect of a bargaining unit, provide to the Board the names of the employees in the bargaining unit who are employed in designated positions;

(k) the authority vested in a council of employee organizations that shall be considered appropriate authority within the meaning of paragraph 26(2)(b); and

(l) such other matters and things as may be incidental or conducive to the objects and purposes of the Board, the exercise of its powers and the attainment of the objects of this Act.

18(2)Repealed: 1983, c.8, s.29

1968, c.88, s.18; 1983, c.8, s.29; 1990, c.30, s.4; 1994, c.52, s.5

Examination into complaint

19(1)The Board shall examine and inquire into any complaint made to it that the employer, or any person acting on its behalf, or that an employee organization, or any person acting on its behalf, or any other person has failed

(a) to observe any prohibition or to give effect to any provision contained in this Act or the regulations under this Act,

(b) to give effect to any provision of an arbitral award, or

(c) to give effect to a decision of an adjudicator with respect to a grievance.

19(2)Where under subsection (1) the Board determines that any person has failed to observe any prohibition, to give effect to any provision or decision as described in subsection (1), and makes an order, addressed to that person directing him to observe the prohibition, give effect to the provision or decision, as the case may be, or take such action as is required in that behalf within such specified period as the Board considers appropriate that person shall comply with the order, and

(a) where that person has acted or purported to act on behalf of the employer, the Board shall direct its order as well

(i) in the case of a separate employer, to the chief executive officer thereof, and

(ii) in any other case, to the Deputy Minister of Human Resources, and to the chief executive officer of the appropriate department, corporation, board or commission specified in Part I, Part II or Part III of the First Schedule, and

(b) where that person has acted or purported to act on behalf of an employee organization, the Board shall direct its order as well to the chief officer of that employee organization.

1968, c.88, s.19; 1984, c.44, s.17; 2002, c.11, s.28; 2012, c.39, s.124; 2012, c.52, s.44

Report of non-compliance with order laid before Legislative Assembly

20(1)Where any order made under section 19 directs some action to be taken and is not complied with within the period specified in the order for the taking of such action, the Board may forward to the Minister through whom it reports to the Legislative Assembly a copy of its order, a report of the circumstances and all documents relevant thereto, and the copy of the order, the report and the relevant documents shall be laid by the Minister before the Legislative Assembly within fifteen days after receipt thereof by him or, if the Legislative Assembly is not then sitting, on any of the first fifteen days next thereafter that the Legislative Assembly is sitting.

20(2)Notwithstanding subsection (1), where any order made under section 19 directs some action to be taken and is not complied with within the period specified in the order for the taking of such action, any person affected by the order may file a copy of the order in The Court of Queen’s Bench of New Brunswick, whereupon the order shall be entered as an order of that court and is enforceable as such.

1968, c.88, s.20; 1990, c.30, s.5

Powers under Inquiries Act

21The Board has in relation to the hearing or determination of any matter that the Board may hear or determine under this Act or the regulations under this Act all of the powers and privileges that commissioners have under the Inquiries Act.

1968, c.88, s.21

Order or direction of Board

22Where under this Act the Board is authorized to make or issue any order or direction, prescribe any term or condition or do any other thing in relation to any person, the Board may do so, either generally or in any particular case or class of cases.

1968, c.88, s.22

Authority of Board to alter, revise or rehear

23The Board may alter or revoke any decision or order made by it, or may rehear any application before making an order in respect thereof, but any rights acquired by virtue of any decision or order that is so altered or revoked shall not be altered or extinguished with effect from a day earlier than the day on which such alteration or revocation is made.

1968, c.88, s.23

Application for certification

24(1)The Board of Management shall, within fifteen days after the coming into force of this Act, or within such further time as is determined by the Board, specify and define the several occupational groups within each occupational category enumerated in paragraphs (a) to (e) inclusive in the definition “occupational category”, in such manner as to comprise therein all employees in the Public Service in respect of whom Her Majesty as represented by the Board of Management is the employer, and shall thereupon cause notice of its action and of the occupational groups so specified and defined by it to be published in The Royal Gazette.

24(2)Each separate employer specified in Part IV of the First Schedule shall, within fifteen days after the coming into force of this Act or within such further time as is determined by the Board specify and define the several occupational groups within each occupational category enumerated in paragraphs (a) to (e) inclusive in the definition “occupational category” in such manner as to comprise therein all employees in the Public Service in respect of whom it is the employer, and shall thereupon cause notice of its action and of the occupational groups so specified and defined by it to be published in The Royal Gazette.

24(2.1)The Workplace Health, Safety and Compensation Commission shall, within fifteen days after the coming into force of this section or within such further time as is determined by the Board, specify and define the several occupational groups within each occupational category enumerated in paragraphs (a) to (e) inclusive in the definition “occupational category” in such a manner as to comprise therein all employees of the Workplace Health, Safety and Compensation Commission, and shall thereupon cause notice of its action and of the occupational groups so specified and defined by it to be published in The Royal Gazette. Thereafter, the ensuing provisions of the Act respecting Certification and Collective Bargaining shall be applied, mutatis mutandis, by the Board to the Workplace Health, Safety and Compensation Commission, as a new Employer under the Act.

24(2.2)Notwithstanding anything else in this Act or in the Workplace Health, Safety and Compensation Commission Act, collective agreements applicable to employees of the Workers’ Compensation Board and Occupational Health and Safety Commission as of December 31, 1994 shall continue in full force and effect until new collective agreements covering such employees come into effect.

24(3)In specifying and defining the several occupational groups within each occupational category pursuant to subsection (1) or subsection (2) the Board of Management or the separate employer, as the case may be, shall specify and define those groups according to the duties and responsibilities of the employees within each occupational category.

24(4)As soon as possible after the coming into force of this Act the Board shall, for each occupational group, specify the day on and after which an application for certification as bargaining agent for a bargaining unit comprised of employees in that occupational group can be made by an employee organization, which day is not, for any occupational group, to be later than the ninetieth day after the coming into force of this Act.

24(5)During the initial certification period, a unit of employees may be determined by the Board as a unit appropriate for collective bargaining only if that unit is comprised of

(a) all of the employees in an occupational group,

(b) all of the employees in an occupational group other than employees whose duties include the supervision of other employees in that occupational group, or

(c) all of the employees in an occupational group whose duties include the supervision of other employees in that occupational group.

24(6)Subsection (5) does not apply where, upon an application for certification as bargaining agent for a proposed bargaining unit,

(a) the employee organization making the application or any employee organization whose members include employees in the proposed bargaining unit, has filed with the Board an objection to the determination of a bargaining unit in consequence of the application on the basis specified in subsection (5), on the ground that such a bargaining unit would not permit satisfactory representation of employees included therein and, for that reason, would not constitute a unit of employees appropriate for collective bargaining, and

(b) the Board, after considering the objection, is satisfied that such a bargaining unit would not, for that reason, constitute a unit of employees appropriate for collective bargaining.

24(7)During the initial certification period, in respect of each occupational category, notice to bargain collectively may be given in respect of a bargaining unit comprised of employees included in that occupational category only after a day specified by the Board at the time of certification of the bargaining agent for that bargaining unit, but such day shall not be later than the ninetieth day after the Board certifies the bargaining agent for that bargaining unit.

24(8)Where, during the initial certification period, an occupationally related category of employees is determined by the Board to be an occupational category for the purposes of this Act, the Board, at the time of making the determination, shall specify the day corresponding to that described in subsection (4) that is to apply in relation to each occupational group in that occupational category as though it were specified by the Board under that subsection.

24(9)Where, during the initial certification period, an occupationally related category is determined to be an occupational category under subsection (8), notice to bargain collectively may be given in respect of a bargaining unit comprised of employees included in that occupational category only after a day specified by the Board at the time of certification of the bargaining agent for that bargaining unit, but such day shall not be later than the ninetieth day after the day on which that occupational category is determined.

1968, c.88, s.24; 1984, c.44, s.17; 1994, c.70, s.9

Application for certification

25An employee organization seeking to be certified as bargaining agent for a group of employees that it considers constitutes a unit of employees appropriate for collective bargaining may, subject to section 28, apply, in the manner prescribed, to the Board for certification as bargaining agent for the proposed bargaining unit.

1968, c.88, s.25

Council of employee organizations

26(1)Where two or more employee organizations have come together to form a council of employee organizations, the council so formed may, subject to section 28, apply in the manner prescribed to the Board for certification as described in section 25.

26(2)The Board may certify a council of employee organizations as bargaining agent for a bargaining unit where the Board is satisfied that

(a) the requirements for certification established by this Act are met, and

(b) each of the employee organizations forming the council has vested appropriate authority in the council to enable it to discharge the duties and responsibilities of a bargaining agent.

1968, c.88, s.26

Council deemed to be an employee organization

27A council of employee organizations is, for all purposes of this Act except subsection 26(2), deemed to be an employee organization, and membership in an employee organization that is part of a council of employee organizations is for the same purposes deemed to be membership in the council.

1968, c.88, s.27

Collective agreement or arbitral award in force

28(1)Where a collective agreement or an arbitral award is in force and is for a term of not more than two years, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to which the agreement or award applies only after the commencement of the last two months of its operation.

28(2)Where a collective agreement or an arbitral award is in force and is for a term of more than two years, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to which the agreement or award applies only

(a) after the commencement of the twenty-third month of its operation and before the commencement of the twenty-fifth month of its operation,

(b) during the two month period immediately preceding the end of each year that the agreement or award continues to operate after the second year of its operation, or

(c) after the commencement of the last two months of its operation.

28(3)Where a collective agreement referred to in subsection (1) or (2) provides that it will continue to operate after the term specified therein 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, with or without modifications, of the collective agreement, an employee organization may apply to the Board for certification as bargaining agent for any of the employees in the bargaining unit to whom the collective agreement applies at any time permitted by subsection (1) or (2), as the case may be, or during the two months period immediately preceding the end of each year that the collective agreement continues to operate after the term specified therein.

1968, c.88, s.28

Refusal of application for certification

29Where an application for certification of an employee organization as a bargaining agent for a proposed bargaining unit has been refused by the Board, that employee organization shall not apply for certification as bargaining agent for the same or substantially the same proposed bargaining unit until at least six months have elapsed from the day on which the Board last refused such certification unless the Board is satisfied that the previous application was refused by reason only of a procedural or technical error or omission made in connection therewith.

1968, c.88, s.29

Unit appropriate for collective bargaining

30(1)Where an employee organization has made application to the Board for certification as described in section 25, the Board shall, subject to subsection 24(5), determine the relevant group of employees that constitutes a unit appropriate for collective bargaining.

30(2)In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board shall take into account, having regard to the proper functioning of this Act, the duties and classification of the employees in the proposed bargaining unit in relation to any plan of classification as it applies to the employees in the proposed bargaining unit.

30(3)In determining whether a group of employees constitutes a unit appropriate for collective bargaining, the Board

(a) shall not include employees from more than one occupational category in that unit, and

(b) shall not include employees from more than one of Part I, Part II, Part III or Part IV of the First Schedule in that unit.

30(4)In determining whether a group of employees constitutes a unit appropriate for collective bargaining the Board may before certification, if it deems it appropriate to do so, include additional employees in, or exclude employees from, the unit.

1968, c.88, s.30

Reclassification of employees

30.1(1)Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, the position of an employee in the bargaining unit is reclassified or the positions of a class of employees in the bargaining unit are reclassified and the reclassification may affect the composition of the bargaining unit, the employer shall

(a) within seven days after the date on which the reclassification comes into effect, notify in writing the employee organization that represents the bargaining unit of the reclassification, and

(b) on the request of the employee organization, provide in writing to the employee organization within ten days after the request, a description of the duties and classification of the position of the employee or of the positions of the class of employees affected by the reclassification.

30.1(2)An application may not be made under section 31 unless, within thirty days after an employee organization receives the description of the duties and classification of the position of the employee or of the positions of the class of employees affected by the reclassification, the employer and the employee organization cannot agree as to whether the employee or class of employees affected by the reclassification is or is not included in the bargaining unit or is included in any other unit.

30.1(3)Notwithstanding subsection (2), if the employer has not provided the information requested under paragraph (1)(b) within ten days after receiving the request, the employee organization may make an application under section 31.

1991, c.53, s.3

Application to Board

31Where, at any time following the determination by the Board of a group of employees to constitute a unit appropriate for collective bargaining, any question arises as to whether any employee or class of employees is or is not included therein or is included in any other unit, the Board shall, on application by the employer or any employee organization affected, but subject to section 31.1, determine the question.

1968, c.88, s.31; 1991, c.53, s.4

Procedure on application under section 31

31.1(1)Where an application is made to the Board under section 31, the Board shall notify the employer or the employee organization affected by the application, as the case may be, of the making and the nature of the application.

31.1(2)Where the application is made by an employee organization, the employer shall, within ten days after being notified under subsection (1) of the making of the application, provide in writing to the employee organization and to the Board a description of the duties and classification of the position of any employee or of the positions of any class of employees in respect of whom the application is made.

31.1(3)Where the application is made by an employer, the employer shall, within ten days after making the application under section 31, provide in writing to the employee organization and the Board, a description of the duties and classification of the position of any employee or of the positions of any class of employees in respect of whom the application is made.

31.1(4)If, within thirty days after an employee organization receives the description of the duties and classification of the position of the employee or of the positions of the class of employees in respect of whom the application is made, the employer and the employee organization cannot agree as to whether the employee or class of employees in respect of whom the application is made is or is not included in the bargaining unit or is included in any other unit, the Board shall determine the question in accordance with section 31.

31.1(5)If the employer does not provide the information required under subsection (2) or (3) within the period of time specified in those subsections, the Board may determine the question in accordance with section 31.

31.1(6)Subsections (2), (3) and (4) do not apply in relation to an application under section 31 if the employer has provided, in accordance with section 30.1, a description of the duties and classification of the position of the employee or of the positions of the class of employees in respect of whom the application is made.

1991, c.53, s.5

Certification as bargaining agent

32Where the Board

(a) has received from an employee organization an application for certification as bargaining agent for a bargaining unit in accordance with this Act,

(b) has determined the group of employees that constitutes a unit appropriate for collective bargaining in accordance with section 30,

(c) is satisfied that at the date of the application a majority of employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, and

(d) is satisfied that the persons representing the employee organization in the making of the application have been duly authorized to make the application,

the Board shall, subject to this Act, certify the employee organization making the application as bargaining agent for the employees in that bargaining unit.

1968, c.88, s.32

Procedure by Board

33(1)For the purpose of enabling the Board to satisfy itself as to the matters described in paragraphs 32(b), (c) and (d), the Board

(a) shall examine, in accordance with any regulations that are made by the Board in that behalf, such evidence as is submitted to it respecting membership of the employees in the proposed bargaining unit in the employee organization seeking certification,

(b) may make or cause to be made such examination of records or make such inquiries as it deems necessary, and

(c) may examine documents forming or relating to the constitution or articles of association of the employee organization seeking certification,

and, in its sole discretion, the Board may in any case for the purpose of satisfying itself that a majority of the employees in the bargaining unit wish the employee organization to represent them as their bargaining agent, direct that a representation vote be taken among the employees in the bargaining unit.

33(2)Where under subsection (1) the Board directs that a representation vote be taken, the Board

(a) shall determine the employees that are eligible to vote, and

(b) shall make such arrangements and give such directions as to it appear requisite for the proper conduct of the representation vote including the preparation of ballots, the method of casting and counting ballots and the custody and sealing of ballot boxes.

1968, c.88, s.33

No certification by Board

34(1)The Board shall not certify as bargaining agent for a bargaining unit, any employee organization in the formation or administration of which there has been or is, in the opinion of the Board, participation by the employer or any person acting on behalf of the employer.

34(2)Repealed: 1983, c.4, s.19

34(3)The Board shall not certify as bargaining agent for a bargaining unit any employee organization where it is made to appear to the satisfaction of the Board that the employee organization discriminates against any employee because of sex, race, national origin, colour or religion.

34(4)The Board shall not certify as bargaining agent for a bargaining unit any employee organization where it is made to appear to the satisfaction of the Board that one of the purposes of the employee organization is the overthrow of constituted authority.

1968, c.88, s.34; 1983, c.4, s.19

Effect of certification

35(1)Where an employee organization is certified under this Act as the bargaining agent for a bargaining unit,

(a) the employee organization has the exclusive right

(i) to bargain collectively on behalf of the employees in the bargaining unit and to bind them by a collective agreement until its certification in respect of the bargaining unit is revoked, and

(ii) to represent an employee in a grievance relating to the interpretation, application or administration of a collective agreement or arbitral award applying to the bargaining unit to which the employee belongs;

(b) if another employee organization was previously certified as bargaining agent in respect of employees in the bargaining unit, the certification of the previously certified bargaining agent is thereupon revoked in respect of such employees; and

(c) if, at the time of certification, a collective agreement or arbitral award binding on the employees in the bargaining unit is in force, the employee organization shall be substituted as a party to the agreement or award in place of the bargaining agent that had been a party thereto and may, notwithstanding anything contained in the agreement or award, terminate the agreement or award, in so far as it applies to the employees in the bargaining unit, upon two months notice to the employer given within one month from such certification.

35(2)In any case where paragraph (1)(b) or (c) applies, any question as to any right or duty of the previous bargaining agent or the new bargaining agent arising by reason of the application of that paragraph shall, on application by the employer or the previous or new bargaining agent, be determined by the Board.

1968, c.88, s.35; 1990, c.30, s.6

Revocation of certification – bargaining agent no longer represents majority

36(1)Where a collective agreement or an arbitral award is in force in respect of a bargaining unit, any person claiming to represent a majority of the employees in that bargaining unit may, in accordance with subsection (2), apply to the Board for a declaration that the employee organization certified as bargaining agent for that bargaining unit no longer represents a majority of the employees therein.

36(2)An application under subsection (1) may be made,

(a) where the collective agreement or arbitral award is for a term of not more than two years, only after the commencement of the last two months of its operation,

(b) where the collective agreement or arbitral award is for a term of more than two years, only after the commencement of the twenty-third month of its operation and before the commencement of the twenty-fifth month of its operation, during the two months period immediately preceding the end of each year that it continues to operate after the second year of its operation, or after the commencement of the last two months of its operation, as the case may be, and

(c) where the collective agreement provides that it will continue to operate after the term specified therein 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, with or without modifications, of the agreement or with a view to the making of a new collective agreement, at any time permitted by paragraph (a) or (b), as the case may be, or during the two month period immediately preceding the end of each year that the agreement continues to operate after the term specified therein.

36(3)Upon an application under subsection (1), the Board in its sole discretion may direct the taking of a representation vote in order to determine whether a majority of the employees in the bargaining unit no longer wish to be represented by the employee organization that is the bargaining agent for that bargaining unit, and in relation to the taking of any such vote the provisions of subsection 33(2) apply.

36(4)After hearing an application under subsection (1) the Board shall revoke the certification of an employee organization as bargaining agent for a bargaining unit if it is satisfied that a majority of the employees in that bargaining unit no longer wish to be represented by the employee organization.

1968, c.88, s.36

Revocation of certification – other circumstances

37(1)The Board shall revoke the certification of a bargaining agent where the bargaining agent advises the Board that it wishes to give up or abandon its certification or where the Board, upon application by the employer or any employee, determines that the bargaining agent has ceased to act as such.

37(2)Where the Board, upon application to the Board by the employer or any employee, determines that a bargaining agent would not, if it were an employee organization applying for certification, be certified by the Board by reason of a prohibition contained in section 34, the Board shall revoke the certification of the bargaining agent.

37(3)The Board, on the application of the employer, may revoke the certification of a bargaining agent where the bargaining agent is an employee organization in respect of which a strike has been declared unlawful under section 104.

1968, c.88, s.37; 1994, c.20, s.1

Revocation of certification – fraud

38(1)Where at any time the Board is satisfied that an employee organization has obtained certification as bargaining agent for a bargaining unit by fraud, the Board shall revoke the certification of such employee organization.

38(2)An employee organization the certification of which is revoked pursuant to subsection (1) is not entitled to claim any right or privilege flowing from such certification, and any collective agreement or arbitral award applying to the bargaining unit for which it was certified, to which such employee organization was a party, is void.

1968, c.88, s.38

Revocation of certification – council of employee organizations

39In addition to the circumstances in which, pursuant to section 36, 37 or 38, the certification of a bargaining agent may be revoked, where an employee organization that is a council of employee organizations has been certified as bargaining agent for a bargaining unit, the Board, on application to it by the employer or an employee organization that forms or has formed part of the council, shall revoke the certification of the council where it determines that, by reason of

(a) an alteration in the constituent membership of the council, or

(b) any other circumstance,

a council no longer meets the requirements for certification required for a council of employee organizations by subsection 26(2).

1968, c.88, s.39

Revocation of certification – effect

40Where, at the time the certification of a bargaining agent for a bargaining unit is revoked, a collective agreement or arbitral award binding on the employees in the bargaining unit is in force, except where another employee organization is substituted as a party to the agreement or award upon the revocation of such certification, the agreement or award thereupon ceases to be in effect.

1968, c.88, s.40

Revocation of certification – applications to Board

41Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 36, 37 or 39, and there is any question as to any right or duty of that bargaining agent or of any new bargaining agent replacing it the question shall, on application by either organization, be determined by the Board.

1968, c.88, s.41

Idem

42Where the certification of a bargaining agent for a bargaining unit is revoked by the Board pursuant to section 36, 37, 38 or 39 and as a result thereof a collective agreement or arbitral award binding on the employees in the bargaining unit ceases to be in effect or a collective agreement or arbitral award applying to the bargaining unit is void, the Board shall, on application to it by or on behalf of any employee and in accordance with any regulations made by it in respect thereof, direct the manner in which any right acquired by, or determined by the Board to have accrued to, an employee that is affected by the revocation is to be recognized and given effect to.

1968, c.88, s.42

Idem

43Where, upon a merger or amalgamation of employee organizations or a transfer of jurisdiction among employee organizations otherwise than as a result of revocation of certification, any question arises concerning the rights, privileges and duties of an employee organization under this Act or under a collective agreement or arbitral award in respect of a bargaining unit or an employee therein, the Board, on application to it by an employee organization affected, shall examine the question and may, in accordance with any regulations made by it in respect thereof, declare or determine what rights, privileges and duties if any have been acquired or are retained, as the case may be, by that employee organization.

1968, c.88, s.43

Essential services

43.1(1)In relation to any bargaining unit the employer may, within the time limits established under subsection (2), by notice in writing advise the Board and the bargaining agent for the relevant bargaining unit that the employer considers in whole or in part the services provided by the bargaining unit to be essential in the interest of the health, safety or security of the public.

43.1(2)A notice under subsection (1) may be given

(a) where an employee organization is certified under this Act as the bargaining agent for a bargaining unit and no collective agreement or arbitral award is in force in relation to the bargaining unit, within twenty days after the date of the certification of the employee organization as the bargaining agent for the bargaining unit, or

(b) where a collective agreement or arbitral award is in force, at any time during the term of the agreement or award except within the period of six months before the agreement or award ceases to operate.

43.1(3)Within seven days after the receipt by the Board of the notice referred to in subsection (1) the Board shall in consultation with the employer and the bargaining agent establish time limits within which the employer and the bargaining agent shall endeavour to reach agreement identifying

(a) the services provided by the bargaining unit that at any particular time are or will be necessary in the interest of the health, safety or security of the public,

(b) the level of service to be maintained by the bargaining unit for the purpose of ensuring the delivery of the services referred to in paragraph (a), and

(c) the positions in the bargaining unit to be designated positions for the purpose of ensuring the delivery of the services referred to in paragraph (a).

43.1(4)If the employer and the bargaining agent are able to reach agreement in relation to the matters referred to in subsection (3) within the time limits established under subsection (3), the terms of the agreement shall be jointly communicated by the parties to the Board and the Board shall forthwith issue an order to the parties in accordance with the terms of the agreement.

43.1(5)If the employer and the bargaining agent are unable to reach agreement in relation to the matters referred to in subsection (3) within the time limits established under subsection (3), the Board, after affording each of the parties an opportunity to present evidence and make representations, shall determine the matters.

43.1(6)A determination made by the Board under subsection (5) shall be communicated in writing by the Board to the employer and the bargaining agent as soon as possible after the making of the determination.

43.1(7)An order issued by the Board under subsection (4) or a determination made by the Board under subsection (5) or such order or determination as amended from time to time as provided in this section remains in effect and is binding on the employer and the bargaining agent and on any employee affected by the order or the determination.

43.1(8)The Board may, on the application of the employer or the bargaining agent for the relevant bargaining unit made within the time limits established under subsection (9) and after affording the parties an opportunity to present evidence and make representations, amend from time to time an order issued under subsection (4) or a determination made under subsection (5).

43.1(9)An application under subsection (8) may be made

(a) where a collective agreement or arbitral award is in force, at any time, or

(b) where a collective agreement or arbitral award is not in force, at any time before the appointment of a conciliator under section 47 or the appointment of a commissioner under section 60.1.

43.1(10)If, on an application under subsection (8), the employer and the bargaining agent agree on the amendments to be made to an order issued under subsection (4) or a determination made under subsection (5), the terms of the agreement shall be jointly communicated by the parties to the Board and the Board shall forthwith amend the order or the determination in accordance with the terms of the agreement.

43.1(11)Within such time and in such manner as the Board prescribes, all employees in a bargaining unit who are employed in positions agreed by the parties or determined by the Board under this section to be designated positions shall be so informed by the Board.

43.1(12)If a notice referred to in subsection (1) is given by the employer or an application referred to in subsection (8) is made by the employer or a bargaining agent, no employee in the bargaining unit in respect of which the notice was given or the application was made shall strike or participate in a strike until the employer and the bargaining agent have agreed on or the Board has determined under this section the positions in the bargaining unit to be designated positions and the employees in those positions have been so informed by the Board.

1990, c.30, s.7; 1991, c.53, s.15; 1994, c.52, s.5

Collective bargaining

44(1)Where the Board has certified an employee organization as bargaining agent for a bargaining unit

(a) the bargaining agent may on behalf of the employees in the bargaining unit, by notice in writing require the employer to commence bargaining collectively, or

(b) the employer may by notice in writing require the bargaining agent to commence bargaining collectively,

with a view to the conclusion, renewal or revision of a collective agreement.

44(2)Notice to bargain collectively may be given,

(a) where no collective agreement or arbitral award is in force and no request for arbitration has been made by either of the parties in accordance with this Act, at any time, and

(b) where a collective agreement or arbitral award is in force, within the period of two months before the agreement or award ceases to operate.

1968, c.88, s.44; 1996, c.68, s.2

Order for purposes of sections 75, 76, 77 and 77.1

44.1(1)Notwithstanding any other provision in this Act or any provision in the regulations under this Act or in a collective agreement, where collective bargaining has not commenced and the parties have agreed that the bargaining agent may bargain collectively on behalf of more than one bargaining unit with a view to the conclusion, renewal or revision of a single collective agreement applicable to all of those bargaining units, the bargaining agent may, within the time limits established under subsection (2), apply in writing to the Board, with notice in writing to the employer, for an order that the bargaining units be deemed to be one bargaining unit for the purposes of sections 75, 76, 77 and 77.1.

44.1(2)An application under subsection (1) may be made

(a) if the bargaining agent gives the notice to bargain collectively under section 44, on the same day as that notice is given, or

(b) if the employer gives the notice to bargain collectively under section 44, within twenty days after that notice is given.

44.1(3)Notwithstanding any other provision in this Act or any provision in the regulations under this Act or in a collective agreement, where, before the commencement of this subsection, a notice to bargain collectively has been given under section 44 and the parties have agreed that the bargaining agent may bargain collectively on behalf of more than one bargaining unit with a view to the conclusion, renewal or revision of a single collective agreement applicable to all of those bargaining units, the bargaining agent may, within twenty days after the commencement of this subsection, apply in writing to the Board, with notice in writing to the employer, for an order that the bargaining units be deemed to be one bargaining unit for the purposes of sections 75, 76, 77 and 77.1.

44.1(4)The Board may require the bargaining agent making an application under subsection (1) or (3) to file such information as the Board considers advisable, in such form and manner and within such time as the Board considers advisable.

44.1(5)If the Board is satisfied that the bargaining agent has been certified by the Board as the bargaining agent for each of the bargaining units, the certification has not been revoked and the parties have agreed that a single collective agreement will apply to all of those bargaining units, the Board shall, within twenty days after the notice to bargain collectively is given under section 44, make the order applied for under subsection (1) and give notice of the order to the employer.

44.1(6)If the Board is satisfied that the bargaining agent has been certified by the Board as the bargaining agent for each of the bargaining units, the certification has not been revoked and the parties have agreed that a single collective agreement will apply to all of those bargaining units, the Board shall, within twenty days after the application is made under subsection (3), make the order applied for under subsection (3) and give notice of the order to the employer.

44.1(7)Notwithstanding any other provision in this Act or any provision in the regulations under this Act or in a collective agreement, when the Board makes an order under this section, the bargaining units are deemed to be one bargaining unit for the purposes of sections 75, 76, 77 and 77.1.

1996, c.68, s.3

Collective bargaining

45(1)Where notice to bargain collectively has been given, the bargaining agent and the officers designated to represent the employer shall, without delay, but in any case within twenty days after the notice was given or within such further time as the parties agree, meet and commence to bargain collectively in good faith and make every reasonable effort to conclude a collective agreement.

45(2)Unless otherwise agreed between the parties collective bargaining shall not continue for a period exceeding forty-five days from the commencement thereof.

1968, c.88, s.45

Effect of notice to bargain collectively

46Where notice to bargain collectively has been given, any term or condition of employment applicable to the employees in the bargaining unit in respect of which the notice was given that may be embodied in the collective agreement and that was in force on the day the notice was given, shall remain in force and shall be observed by the employer, the bargaining agent for the bargaining unit and employees in the bargaining unit, except as otherwise provided by any agreement in that behalf that may be entered into by the employer and the bargaining agent, until such time as

(a) a collective agreement has been entered into by the parties and no request for arbitration or for declaration that a deadlock exists in respect of that term or condition of employment, or in respect of any term or condition of employment proposed to be substituted therefor, has been made in accordance with this Act, or

(b) an arbitral award in respect of that term or condition of employment, or in respect of any term or condition of employment proposed to be substituted therefor, has been made in accordance with this Act, or

(c) a deadlock in respect of that term or condition of employment, or in respect of any term or condition of employment proposed to be substituted therefor, has been declared, and the employees in the bargaining unit have authorized strike action in accordance with this Act.

1968, c.88, s.46

Repealed

46.1Repealed: 1988, c.64, s.11; 1988, c.67, s.10

1987, c.41, s.26; 1988, c.64, s.11; 1988, c.67, s.10

Repealed

46.2Repealed: 1988, c.64, s.11; 1988, c.67, s.10

1987, c.41, s.26; 1988, c.64, s.11; 1988, c.67, s.10

Appointment of conciliator

47Where the employer or a bargaining agent advises the Board by notice in writing of the inability of the parties to reach agreement on any term or condition of employment that is to be embodied in a collective agreement and that it desires the assistance of a conciliator in reaching agreement, the Board may appoint a conciliator who shall, forthwith after his appointment, confer with the parties and endeavour to assist them in reaching agreement.

1968, c.88, s.47; 1994, c.52, s.5

Report of conciliator

48A conciliator shall, within fourteen days from the date of his appointment or within such longer period as the parties may agree or the Board determines, report his success or failure to the Board.

1968, c.88, s.48; 1994, c.52, s.5

Appointment of conciliation board

49Within fifteen days of the expiry of the time limit in subsection 45(2), where a commissioner has not been appointed under section 60.1, and

(a) where either party requests that a conciliation board be appointed, and the Board is of the opinion that a conciliation board should be appointed, or

(b) in any other case in which the Board is of the opinion that the parties are not able to reach agreement and that a conciliation board should be appointed,

the Board may appoint a conciliation board to inquire into the dispute, report on the facts, and make recommendations for the settlement of the dispute.

1968, c.88, s.49; 1991, c.53, s.6; 1994, c.52, s.5

Refusal to appoint conciliation board

49.1Where the Board is of the opinion that a conciliation board should not be appointed under section 49, the Board shall notify the parties immediately of the Board’s refusal to do so.

1991, c.53, s.7; 1994, c.52, s.5

Repealed

50Repealed: 1990, c.30, s.8

1968, c.88, s.50; 1990, c.30, s.8

Conciliation board members, remuneration and expenses

51(1)A conciliation board shall consist of three members appointed in the manner provided in this section.

51(2)When a conciliation board is to be established, the Board shall by notice require each of the parties, within seven days from the receipt of such notice, to nominate one person each to be a member of the conciliation board, and upon receipt of the nominations within those seven days, the Board shall appoint the persons so nominated as members of the conciliation board.

51(3)If either of the parties fails to nominate a person within seven days from the receipt by it of the notice referred to in subsection (2), the Board shall appoint as a member of the conciliation board a person the Board deems fit for the purpose, and such member shall be deemed to have been appointed on the nomination of that party.

51(4)The two members appointed under subsection (2) or (3) shall, within five days after the day on which the second of them was appointed or within such further time as the Board determines, nominate a third person who is ready and willing to act, to be chairman of the conciliation board, and the Board shall thereupon appoint such person as the chairman of the conciliation board.

51(5)If the two members appointed under subsection (2) or (3) fail to make such a nomination within the time fixed or determined under subsection (4), the Board shall forthwith appoint as the chairman of the conciliation board a person the Board deems fit for the purpose.

51(6)Repealed: 1990, c.30, s.9

51(7)The remuneration and expenses of the persons appointed to a conciliation board shall be paid

(a) in the case of a person nominated by or appointed on behalf of the employer, by the employer,

(b) in the case of a person nominated by or appointed on behalf of a bargaining agent, by the bargaining agent, and

(c) in the case of the chairman, one-half by the employer and one-half by the bargaining agent.

1968, c.88, s.51; 1990, c.30, s.9; 1994, c.52, s.5

Vacancy on conciliation board

52Where any vacancy occurs in the membership of a conciliation board before the board has reported its findings and recommendations to the Board, the vacancy shall be filled by the Board by appointment in the manner provided in section 51 for the selection of the person in respect of whom the vacancy arose.

1968, c.88, s.52; 1994, c.52, s.5

Notice of conciliation board

53(1)Forthwith upon the establishment of a conciliation board, the Board shall notify the parties of its establishment and of the names of its members.

53(2)Upon the notification of the parties by the Board of the establishment of a conciliation board, it shall be conclusively presumed that the conciliation board described in the notice has been established in accordance with this Act, and no order shall be made or process entered, and no proceedings shall be taken in any court, to question the establishment of the conciliation board or to review, prohibit or restrain any of its proceedings.

1968, c.88, s.53; 1994, c.52, s.5

Statement to conciliation board

54Forthwith upon the establishment of a conciliation board, the Board shall deliver to the conciliation board a statement setting forth the matters on which the conciliation board shall report its findings and recommendations to the Board, and the Board may, either before or after the report to it of the findings and recommendations of the conciliation board, amend such statement by adding thereto or deleting therefrom any matter the Board deems necessary or advisable in the interest of assisting the parties in reaching agreement.

1968, c.88, s.54; 1994, c.52, s.5

Procedure of conciliation board

55(1)A conciliation board shall as soon as possible after the receipt by it of the statement referred to in section 54, endeavour to bring about agreement between the parties in relation to the matters set forth in the statement.

55(2)Except as otherwise provided in this Act, a conciliation board may determine its own procedure, but shall give full opportunity to both parties to present evidence and make representations.

55(3)The chairman of a conciliation board may, after consultation with the other members of the board, fix the times and places of its sittings and shall notify the parties of the times and places so fixed.

55(4)The chairman of a conciliation board and one other member constitute a quorum, but in the absence of a member at any sitting of the board the other members shall not proceed unless the absent member has been given reasonable notice of the sitting.

55(5)A decision of a majority of the members of a conciliation board on any matter referred to it is a decision of the board thereon.

55(6)The chairman of a conciliation board shall forward to the Board a detailed statement signed by him of the sittings of the conciliation board and of the members and witnesses present at each sitting.

1968, c.88, s.55; 1994, c.52, s.5

Powers of conciliation board

56A conciliation board has in relation to the hearing or determination of any matter that a conciliation board may hear or determine all of the powers and privileges that commissioners have under the Inquiries Act.

1968, c.88, s.56

Report of conciliation board

57(1)The chairman of the conciliation board shall within thirty days after the receipt by it of the statement referred to in section 54 or within such longer period as may be agreed upon by the parties or determined by the Board report the findings and recommendations of the majority of the conciliation board to the Board; and where there is no majority decision by the conciliation board the chairman of the conciliation board shall report his own findings and recommendations to the Board but in no case shall the findings and recommendations of the minority be reported.

57(2)Subsection 63(2) applies in relation to a recommendation in a report of a conciliation board.

57(3)After a conciliation board has reported to the Board its findings and recommendations on the matters set forth in the statement referred to in section 54, the Board may direct it to reconsider and clarify or amplify its report or any part thereof, or to consider and report on any matter added to such statement pursuant to that section, except that in any such case the report of the conciliation board shall be deemed to have been received by the Board notwithstanding that the reconsidered report or the report on the added matter, as the case may be, has not been received by the Board.

1968, c.88, s.57; 1994, c.52, s.5

Copy of report, publication

58Upon receipt of the report of a conciliation board, the Board shall forthwith cause a copy thereof to be sent to the parties and may cause the report to be published in such manner as the Board sees fit.

1968, c.88, s.58; 1994, c.52, s.5

Evidence

59No report of the conciliation board, and no testimony or proceedings before a conciliation board, are receivable in evidence in any court in the Province except in the case of a prosecution for perjury.

1968, c.88, s.59

Recommendations binding

60Where at any time before a conciliation board has made its report, the parties so agree in writing, a recommendation made by a conciliation board shall be binding on the parties, subject to and for the purposes of this Act, and shall be given effect to accordingly.

1968, c.88, s.60

Commissioners

60.1(1)Where the Board is authorized to appoint a conciliator under section 47, the Board may, on the request of either party, appoint a commissioner instead of a conciliator.

60.1(2)Where the Board decides to appoint a commissioner under subsection (1) and the parties agree to the appointment of a person as commissioner, the Board shall appoint that person.

60.1(3)A commissioner appointed under this section shall

(a) confer with the parties and endeavour to assist them in reaching agreement,

(b) inquire into the dispute,

(c) report on the facts, and

(d) make recommendations for the settlement of the dispute.

60.1(4)A commissioner has, in relation to the hearing or determination of any matter that a commissioner may hear or determine, all of the powers and privileges that a commissioner has under the Inquiries Act.

60.1(5)A commissioner may determine the commissioner’s own procedure, but shall give full opportunity to both parties to present evidence and make representations.

60.1(6)A commissioner shall confer with the parties and otherwise inquire into the matter in accordance with paragraphs (3)(a) and (b) for a period totalling not more than five days or such longer period as may be specified by the Board under subsection (7).

60.1(7)The Board may extend by not more than three days the period of time in which the commissioner shall confer with the parties and otherwise inquire into the matter in accordance with paragraphs (3)(a) and (b).

60.1(8)The commissioner shall, within thirty days after being appointed or such longer period as may be specified by the Board, report to the Board and to the parties the commissioner’s findings and recommendations in accordance with paragraphs (3)(c) and (d).

60.1(9)The report of a commissioner shall have the same effect as that of a conciliation board.

1991, c.53, s.8; 1994, c.52, s.5

Collective agreements

61The Board of Management may, in such manner as may be provided for by any rules or procedures determined by it pursuant to section 56 of the Financial Administration Act, enter into a collective agreement with the bargaining agent for a bargaining unit, other than a bargaining unit comprised of employees of a separate employer, applicable to employees in that bargaining unit.

1968, c.88, s.61; 1984, c.44, s.17; 2011, c.20, s.19

Collective agreement entered into by separate employer

62A separate employer may, with the approval of the Lieutenant-Governor in Council, enter into a collective agreement with the bargaining agent for a bargaining unit comprised of employees of the separate employer, applicable to employees in that bargaining unit.

1968, c.88, s.62

Collective agreements

63(1)The provisions of a collective agreement shall be implemented by the parties,

(a) where a period within which the collective agreement is to be implemented is specified in the collective agreement, within that period; and

(b) where no period for the implementation is so specified

(i) within a period of ninety days from the date of its execution, or

(ii) within such longer period as may, on application by either party to the agreement, appear reasonable to the Board.

63(2)No collective agreement shall provide, directly or indirectly, for the alteration or elimination of any existing term or condition of employment or the establishment of any new term or condition of employment,

(a) the alteration or elimination of which or the establishment of which, as the case may be, would require or have the effect of requiring the enactment or amendment of any legislation by the Legislature, except for the purpose of appropriating money required for its implementation,

(a.1) that has been or may be established by the pension plan converted to a shared risk plan in accordance with An Act Respecting Public Service Pensions, or

(b) that has been or may be, as the case may be, established pursuant to any Act specified in the Second Schedule.

1968, c.88, s.63; 2013, c.44, s.39

Provisions of collective agreements – casual employees

63.1(1)In this section, “casual employee” means

(a) a person employed on a temporary basis for the following purposes:

(i) to respond to a temporary increase in workload; or

(ii) to replace an absent employee, or

(b) a person employed on a recurring seasonal basis who has not been so employed for a continuous period of 6 months.

63.1(2)A collective agreement shall not provide, directly or indirectly, for the alteration or elimination of an existing term or condition of employment or the establishment of a new term or condition of employment if the alteration, elimination or establishment, as the case may be, has the effect of giving a casual employee permanent employment.

2010, c.20, s.2

Term of collective agreement

64(1)A collective agreement has effect in respect of a bargaining unit on and from,

(a) where an effective date is specified, that day, and

(b) where no effective date is specified, the first day of the month next following the month in which the agreement is executed.

64(2)Where a collective agreement

(a) contains no provision as to its term, or

(b) is for a term of less than one year,

the collective agreement shall be deemed to be for a term of one year from the day on and from which it has effect pursuant to subsection (1).

64(3)Nothing in subsection (2) prevents the amendment or revision of any provision of a collective agreement other than a provision relating to the term of the collective agreement, that, under the agreement, may be amended or revised during the term thereof.

64(4)Notwithstanding subsections (1), (2) and (3), the parties to a collective agreement may by agreement extend the term of the collective agreement, in which case the term of the collective agreement so extended shall be determined in accordance with the agreement of the parties.

1968, c.88, s.64; 1994, c.20, s.2

Provisions of collective agreement – technological change

64.1(1)Every collective agreement shall contain provisions regarding technological change which, without limiting the generality of the foregoing,

(a) define technological change,

(b) require the employer to give reasonable advance notice of technological change to the bargaining agent, and

(c) describe the contents of the notice.

64.1(2)Where a collective agreement does not contain such provisions as are mentioned in subsection (1), it shall be deemed to contain the following provision:

“The parties, being unable to agree upon provisions to be included in this agreement regarding technological change, agree that on the request in writing of either party to the Labour and Employment Board their differences will be submitted to binding arbitration before an arbitration tribunal to be established in accordance with the Public Service Labour Relations Act.”

64.1(3)Subsections (1) and (2) do not apply if a provision of a collective agreement expressly states that a benefit, privilege, right or obligation was agreed to in lieu of the application of this section.

64.1(4)Where the differences between the parties are submitted to binding arbitration in accordance with subsection (2), sections 78 to 90.2 apply mutatis mutandis.

64.1(5)Subsections (1), (2), (3) and (4) do not apply to a collective agreement that is in effect on the day this section comes into force.

64.1(6)Subsection (5) does not apply after the day on which the collective agreement expires or after the day that is two years after the day this section comes into force, whichever occurs first.

64.1(7)Where no collective agreement has been entered into this section applies mutatis mutandis to an arbitral award.

1988, c.73, s.1; 1990, c.30, s.10; 1994, c.52, s.5

Collective agreement binding

65A collective agreement is, subject to and for the purposes of this Act, binding on the employer, on the bargaining agent that is a party thereto and its constituent elements, and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and from the day on and from which it has effect pursuant to subsection 64(1).

1968, c.88, s.65

Public Service Arbitration Tribunal

66Where the employer and the bargaining agent for a bargaining unit have bargained collectively in good faith with a view to concluding a collective agreement but have failed to reach agreement, and the parties mutually agree in writing, they may submit their differences to binding arbitration by notice in writing to the secretary of the Board.

1968, c.88, s.66

Repealed

67Repealed: 1990, c.30, s.11

1968, c.88, s.67; 1990, c.30, s.11

Repealed

68Repealed: 1990, c.30, s.12

1968, c.88, s.68; 1990, c.30, s.12

Repealed

69Repealed: 1990, c.30, s.13

1968, c.88, s.69; 1990, c.30, s.13

Request that Board declare deadlock

70Where the parties to collective bargaining have bargained collectively in good faith with a view to concluding a collective agreement but have been unable to reach agreement upon one or more of the terms or conditions of employment of employees in the relevant bargaining unit that are to be embodied in a collective agreement, and

(a) the time limited in subsection 45(2) has expired,

(b) the Board has refused to appoint a conciliation board, or a conciliation board has been appointed under section 49 and seven days have expired since the date of the report by the conciliation board to the Board, or the Board has refused to appoint a commissioner, or a commissioner has been appointed under section 60.1 and seven days have expired since the date of the report by the commissioner to the Board,

(c) the parties to collective bargaining have not agreed to an extension of the time limited in subsection 45(2), and

(d) the parties to collective bargaining have not submitted their differences to binding arbitration under section 66,

either party may inform the Board that negotiations have broken down, and request the Board to declare that a deadlock exists.

1968, c.88, s.70; 1991, c.53, s.9; 1994, c.52, s.5

Declaration of deadlock

71The Board upon being satisfied that the provisions of section 70 have been complied with shall within three days of such request by notice in writing to the parties declare that a deadlock exists.

1968, c.88, s.71; 1994, c.52, s.5

Content of notice under section 71

72The Board shall, in the notice under section 71 require each party to inform the Board whether it is willing to submit the dispute to binding arbitration.

1968, c.88, s.72; 1990, c.30, s.14; 1994, c.52, s.5

Whether parties are willing to submit dispute to binding arbitration

73Upon the receipt of the notice under section 72 each party within the time prescribed, shall inform the Board by notice in writing, whether it is willing to submit the dispute to binding arbitration.

1968, c.88, s.73; 1990, c.30, s.15; 1994, c.52, s.5

No binding arbitration

74Where either party informs the Board that it is not willing to submit the dispute to binding arbitration the Board, after being informed by both parties, shall inform both parties by notice in writing that the dispute is not to be submitted to binding arbitration.

1968, c.88, s.74; 1990, c.30, s.16; 1994, c.52, s.5

Vote re strike action

75Immediately upon the receipt of the notice under section 74 the bargaining agent for the relevant bargaining unit may conduct a vote, in the manner prescribed, among the employees of the bargaining unit to determine whether they desire to take strike action.

1968, c.88, s.75

Strike action, lock-out

76(1)No strike action shall be taken unless a majority of the employees in the relevant bargaining unit vote in favour of strike action.

76(2)Where less than a majority of the employees in the relevant bargaining unit vote in favour of strike action the Board shall by notice in writing require the employer and the bargaining agent for the relevant bargaining unit to resume collective bargaining.

76(3)After twenty-one days have expired from the date of the notice under subsection (2) either party may request the Board to declare that a deadlock exists and the provisions of sections 71 to 76 inclusive apply mutatis mutandis.

76(4)The employer, at any time after any of the employees in a bargaining unit take strike action, may, except for employees who are employed in positions designated in accordance with section 43.1, lock-out any or all of the employees in the bargaining unit from their place of employment or otherwise refuse to permit any or all of the employees in the bargaining unit to work and may refuse to pay them.

1968, c.88, s.76; 1994, c.20, s.3; 1994, c.52, s.5

Conditions re strike action

77Notwithstanding anything in this Act no strike action shall be taken until a deadlock has been declared and at least seven days have expired from the date on which the bargaining agent for the bargaining unit, in the manner prescribed, has given notice to the Board that a majority of the employees in the relevant bargaining unit has voted in favour of strike action.

1968, c.88, s.77; 1994, c.52, s.5

Vote on employer’s offer

77.1(1)Subject to subsection (6), at any time after a deadlock has been declared, the employer may request that a vote of the employees in the relevant bargaining unit be conducted as to the acceptance or rejection of the most recent offer presented by the employer to the bargaining agent for the relevant bargaining unit in respect of all matters remaining in dispute between the parties.

77.1(2)A request referred to in subsection (1) shall be made in writing to the Board.

77.1(3)As soon as is practicable after receipt of a request referred to in subsection (1), the Board shall conduct a vote of the employees in the relevant bargaining unit who have not during the dispute found permanent employment elsewhere on the acceptance or rejection of the offer.

77.1(4)A vote conducted under this section shall be by secret ballot and may be by mail or ballot boxes or partly by mail or partly by ballot boxes.

77.1(5)Where a majority of the employees who vote under this section vote in favour of accepting the offer, the parties are bound by that offer and shall, without delay, enter into a collective agreement that incorporates the terms of that offer.

77.1(6)A request that a vote be conducted under this section shall not be made

(a) more than once during each dispute,

(b) in relation to differences between the parties that have been submitted to binding arbitration in accordance with section 64.1, or

(c) where, in accordance with section 73, each party informs the Board that it is willing to submit the dispute to binding arbitration.

77.1(7)The cost of conducting a vote under this section shall be paid by the employer.

77.1(8)A request that a vote be conducted, or the conducting of a vote, under this section does not abridge or extend any time limits or periods provided for in this Act.

77.1(9)The Board shall determine any question that arises under this section, including any question relating to the conduct of a vote or the determination of its result.

1994, c.41, s.1; 1994, c.52, s.5

Arbitration tribunal

78(1)Where

(a) in accordance with subsection 64.1(2) or section 66, the differences between the parties are submitted to binding arbitration, or

(b) in accordance with section 73, each party informs the Board that it is willing to submit the dispute to binding arbitration,

the Board shall, by notice in writing, immediately inform both parties that the matters in dispute are to be referred to an arbitration tribunal.

78(2)Within ten days after the receipt of the notice under subsection (1) each party shall appoint a person to act as a member of the arbitration tribunal.

78(3)Within ten days after the appointment of the second of them, the two persons appointed to act as members of the arbitration tribunal shall appoint a third person to act as a member and chairperson of the arbitration tribunal.

78(4)If either party fails to appoint a person as a member of the arbitration tribunal within the time limit established under subsection (2) the Board shall make the appointment on behalf of that party.

78(5)If the two persons appointed as members of the arbitration tribunal fail to appoint a person to act as a member and chairperson of the arbitration tribunal within the time limit established under subsection (3) the Board shall make the appointment on their behalf.

78(6)If a vacancy occurs in the membership of the arbitration tribunal it shall be filled in the same manner as provided for the appointment of the member or the chairperson.

1968, c.88, s.78; 1988, c.73, s.2; 1990, c.30, s.17; 1994, c.52, s.5

Statements of parties

79(1)Within ten days after the receipt of the notice under subsection 78(1) each party

(a) shall submit to the Board a statement of the matters in dispute and include in the statement its proposal concerning the award to be made by the arbitration tribunal in respect of the matters in dispute, and

(b) shall annex to the statement a copy of the previous collective agreement and previous arbitral award, if any, that applied to the bargaining unit.

79(2)When three persons are appointed to act as members of an arbitration tribunal under section 78 the Board, by notice in writing, shall

(a) establish the members as an arbitration tribunal,

(b) refer the matters in dispute to the arbitration tribunal, and

(c) send a copy of the statements under subsection (1) to the chairperson of the arbitration tribunal.

1968, c.88, s.79; 1990, c.30, s.18; 1994, c.52, s.5

Repealed

80Repealed: 1990, c.30, s.19

1968, c.88, s.80; 1990, c.30, s.19

Arbitral award

81(1)Subject to section 84, the matters in dispute specified in the statements under subsection 79(1) sent by the Board to the chairperson of the arbitration tribunal constitute the terms of reference of the arbitration tribunal.

81(2)As soon as is practicable after the receipt of the notice referred to in subsection 79(2) the arbitration tribunal shall inquire into the matters in dispute and endeavour to effect a settlement.

81(3)If the arbitration tribunal is unable to effect a settlement the arbitration tribunal shall, after considering the matters in dispute together with any other matter that the arbitration tribunal considers necessarily incidental to the resolution of the matters in dispute, render an arbitral award in respect of the matters in dispute.

81(4)Where, at any time before an arbitral award is rendered in respect of the matters in dispute referred by the Board to the arbitration tribunal, the parties reach agreement on any such matter and enter into a collective agreement in respect of that matter, the matters in dispute so referred to the arbitration tribunal shall be deemed not to include that matter and no arbitral award shall be rendered by the arbitration tribunal in respect of that matter.

1968, c.88, s.81; 1990, c.30, s.20; 1994, c.52, s.5

Considerations of arbitration tribunal

82To ensure that wages and benefits are fair and reasonable to the employees and to the employer the arbitration tribunal shall consider, for the period with respect to which the arbitral award will apply, the following:

(a) wages and benefits in private and public, and unionized and non-unionized, employment;

(b) the continuity and stability of private and public employment including employment levels and incidence of layoffs;

(c) the fiscal policies of the Government of the Province of New Brunswick;

(d) the terms and conditions of employment in similar occupations outside the Public Service taking into account any geographic, industrial or other variations that the arbitration tribunal considers relevant;

(e) the need to maintain appropriate relationships in terms and conditions of employment between different grade levels within an occupation and between occupations in the Public Service;

(f) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered; and

(g) any other factor that the arbitration tribunal considers relevant to the matter in dispute.

1968, c.88, s.82; 1990, c.30, s.21

Procedure, powers of arbitration tribunal

83(1)Except as otherwise provided in this Act, an arbitration tribunal may determine its own procedure but shall give full opportunity to both parties to present evidence and make representations.

83(2)An arbitration tribunal has in relation to the hearing or determination of any matter that the arbitration tribunal may hear or determine all of the powers and privileges that commissioners have under the Inquiries Act.

1968, c.88, s.83; 1990, c.30, s.22

Scope of arbitral award

84(1)Subject to this section, an arbitral award may deal with rates of pay, hours of work, leave entitlements, standards of discipline and other terms and conditions of employment related thereto.

84(2)Subsection 63(2) applies, mutatis mutandis, in relation to an arbitral award.

84(3)An arbitral award shall deal only with terms and conditions of employment in the bargaining unit in respect of which the request for arbitration was made.

1968, c.88, s.84

Form of arbitral award

85(1)An arbitral award shall be signed by the chairperson of the arbitration tribunal and copies thereof shall thereupon be transmitted to the parties to the dispute and to the Board and no report or observations thereon shall be made or given by any other member.

85(2)A decision of the majority of the members of an arbitration tribunal in respect of the matters in dispute, or where a majority of such members cannot agree on the terms of the arbitral award to be rendered in respect of the matters in dispute, the decision of the chairperson of the arbitration tribunal shall be the arbitral award in respect of the matters in dispute.

85(3)An arbitral award shall, wherever possible, be made in such form

(a) as will be 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 employment of the employees in the bargaining unit in respect of which the arbitral award applies, and

(b) as will enable its incorporation into and implementation by regulations, by-laws, directions or other instruments that may be required to be made or issued by the employer or the relevant bargaining agent in respect thereof.

1968, c.88, s.85; 1990, c.30, s.23; 1994, c.52, s.5

Arbitral award binding, may be retroactive, conflict

86(1)An arbitral award is, subject to and for the purposes of this Act, binding on the employer and the bargaining agent that is a party thereto and on the employees in the bargaining unit in respect of which the bargaining agent has been certified, effective on and from the day on which the award is rendered or such later day as the arbitration tribunal determines.

86(2)A provision of an arbitral award made in respect of a term or condition of employment may be retroactive to the extent that it is capable of being retroactively applied, in whole or in part, to a day prior to the day on and from which the arbitral award becomes binding on the parties but not before the day on which notice to bargain collectively was given by either party.

86(3)Where, in relation to any or all of the provisions of an arbitral award made in respect of terms and conditions of employment, there was previously in effect a collective agreement or arbitral award, the previous collective agreement or the previous arbitral award is replaced, to the extent of any conflict, for the term, determined in accordance with section 87, for which the subsequent award is operative.

1968, c.88, s.86; 1990, c.30, s.24

Term of arbitral award

87(1)An arbitration tribunal shall, in respect of an arbitral award, determine and specify therein the term for which the arbitral award is to be operative and, in making its determination, 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 collective agreement that applied to the bargaining unit, or

(ii) the term of any other collective agreement that to the arbitration tribunal appears relevant.

87(2)No arbitral award, in the absence of the application thereto of any criterion referred to in paragraph (1)(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.

1968, c.88, s.87; 1990, c.30, s.25

Implementation of arbitral award

88The rates of pay, hours of work, leave entitlements, standards of discipline and other terms and conditions of employment related thereto that are the subject of an arbitral award shall be implemented by the parties within a period of ninety days from the date on and from which it becomes binding on the parties, or within such longer period as, on application to the Board by either party appears reasonable to the Board.

1968, c.88, s.88

Matter back to arbitration tribunal

89Where in respect of an arbitral award it appears to either of the parties that the arbitration tribunal has failed to deal with any matter in dispute referred to it by the Board, such party may, within seven days from the day the award is rendered, refer the matter back to the arbitration tribunal, and the arbitration tribunal shall thereupon deal with the matter in the same manner as in the case of a matter in dispute referred to it under section 79.

1968, c.88, s.89; 1990, c.30, s.26; 1994, c.52, s.5

Amendment, alteration or variation of arbitral award

90An arbitration tribunal may, on application jointly by both parties to an arbitral award rendered by the arbitration tribunal, amend, alter or vary any provision of the award where it is made to appear to the arbitration tribunal that the amendment, alteration or variation of the award is warranted, having regard to circumstances that have arisen since the making of the award or of which the arbitration tribunal did not have notice at the time of the making of the award, or having regard to such other circumstances as the arbitration tribunal considers relevant.

1968, c.88, s.90; 1990, c.30, s.27

Application of Arbitration Act

90.1The Arbitration Act does not apply to the proceedings of an arbitration tribunal.

1990, c.30, s.28

Remuneration and expenses of arbitration tribunal

90.2The remuneration and expenses of the persons appointed to an arbitration tribunal under section 78 shall be paid

(a) in the case of a person appointed by or on behalf of the employer, by the employer,

(b) in the case of a person appointed by or on behalf of the bargaining agent, by the bargaining agent, and

(c) in the case of the chairperson, one-half by the employer and one-half by the bargaining agent.

1990, c.30, s.28

Repealed

91Repealed: 1990, c.30, s.29

1968, c.88, s.91; 1990, c.30, s.29

Adjudication provision

92(1)Every collective agreement 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 or an arbitral award binding on the parties, including any question as to whether a matter is adjudicable, or where an allegation is made that this agreement or an arbitral award binding on the parties has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement or the arbitral award, notify the other party in writing of its desire to submit the difference or allegation to adjudication. The parties shall, within seven days after the receipt by the other party of such notice, appoint an adjudicator to hear and determine the difference or allegation. If within such period of time the parties fail to appoint an adjudicator, the appointment shall, on the written request of either party, be made by the Labour and Employment Board. The adjudicator shall hear and determine the difference or allegation and shall issue a decision. The decision is final and binding on the parties and on any employee affected by it.”

92(2)Notwithstanding subsection (1), where the parties so provide in their collective agreement, a board of adjudication consisting of three persons may be established instead of an adjudicator in which case the board of adjudication has, may exercise and shall discharge all the powers and duties conferred and imposed on an adjudicator under this Act.

92(3)Where no collective agreement has been entered into between the parties and an arbitral award is or has been rendered in accordance with this Act in relation to the parties, subsection (1) applies mutatis mutandis to the arbitral award.

92(4)Notwithstanding subsection (1), an employee is not entitled to refer a grievance to adjudication in accordance with subsection (1) unless the bargaining agent for the bargaining unit signifies in writing

(a) its approval of the reference of the grievance to adjudication, and

(b) its willingness to represent the employee.

92(5)Notwithstanding subsection (4), an employee may refer to adjudication a grievance arising out of any action resulting in discharge, suspension or financial penalty where the bargaining agent refuses to signify its approval, but in that case the employee shall pay the bargaining agent’s share of the costs in relation to the adjudication as determined in accordance with section 98.

1968, c.88, s.92; 1990, c.30, s.30; 1991, c.53, s.10; 1994, c.52, s.5

Level prior to adjudication

92.1Subsections 92(4) and (5) apply with the necessary modifications to the presentation of a grievance in accordance with a collective agreement or an arbitral award at any level prior to its submission to adjudication in accordance with subsection 92(1).

1991, c.53, s.11

Repealed

93Repealed: 1990, c.30, s.31

1968, c.88, s.93; 1990, c.30, s.31

Repealed

94Repealed: 1990, c.30, s.32

1968, c.88, s.94; 1990, c.30, s.32

Repealed

95Repealed: 1990, c.30, s.33

1968, c.88, s.95; 1990, c.30, s.33

Effect of decision

96(1)Repealed: 1990, c.30, s.34

96(2)No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award.

96(3)Repealed: 1990, c.30, s.34

1968, c.88, s.96; 1990, c.30, s.34

Determination and decision

97(1)An adjudicator shall give full opportunity to both parties to the grievance to present evidence and make representations.

97(2)An adjudicator has in relation to the hearing or determination of any grievance that the adjudicator may hear or determine all of the powers and privileges that commissioners have under the Inquiries Act.

97(2.1)Where an adjudicator determines that an employee has been discharged or otherwise disciplined by the employer for cause and the collective agreement or arbitral award does not contain a specific penalty for the infraction that resulted in the employee being discharged or otherwise disciplined, the adjudicator may substitute such other penalty for the discharge or discipline as to the adjudicator seems just and reasonable in all the circumstances.

97(3)After considering the grievance, the adjudicator

(a) shall render a decision thereon,

(b) shall send a copy of the decision to each party and his or its representative, and, in the case of a grievance presented by an employee, to the bargaining agent for the bargaining unit to which the employee whose grievance it is belongs, and

(c) shall deposit a copy of the decision with the Board.

97(4)In the case of a board of adjudication, a decision of the majority of the members on a grievance is a decision of the board thereon, and the decision shall be signed by the chairman of the board.

97(5)Where a decision on any grievance referred to adjudication requires any action by or on the part of the employer, the employer shall take such action.

97(6)Where a decision on any grievance requires any action by or on the part of the employee or a bargaining agent or both of them, the employee or bargaining agent, or both, as the case may be, shall take such action.

97(7)The Board may, in accordance with section 19, take such action as is contemplated by that section to give effect to the decision of an adjudicator on a grievance but shall not inquire into the basis or substance of the decision.

1968, c.88, s.97; 1971, c.57, s.3; 1990, c.30, s.35; 1994, c.52, s.5

Repealed

97.1Repealed: 1988, c.64, s.11; 1988, c.67, s.10

1987, c.41, s.26; 1988, c.64, s.11; 1988, c.67, s.10

Remuneration and expenses of adjudicator or board of adjudication

98(1)The employer and the bargaining agent for the relevant bargaining unit shall each pay one-half of the remuneration and expenses of the adjudicator.

98(2)In the case of a board of adjudication, the employer and the bargaining agent for the relevant bargaining unit shall each pay

(a) one-half of the remuneration and expenses of the chairman of the board of adjudication, and

(b) the remuneration and expenses of its nominee to the board of adjudication.

1968, c.88, s.98; 1990, c.30, s.36

Application of Arbitration Act

98.1The Arbitration Act does not apply to adjudications conducted by an adjudicator.

1990, c.30, s.37

Repealed

99Repealed: 1990, c.30, s.38

1968, c.88, s.99; 1990, c.30, s.38

Repealed

100Repealed: 1990, c.30, s.39

1968, c.88, s.100; 1983, c.8, s.29; 1990, c.30, s.39

Employee not included in a bargaining unit

100.1(1)In this section

“employee” includes a person who would be an employee but for the fact that the person is a person employed in a managerial or confidential capacity.(employé)

100.1(2)An employee who is not included in a bargaining unit may, in the manner, form and within such time as may be prescribed, present to the employer a grievance with respect to discharge, suspension or a financial penalty.

100.1(3)Where an employee has presented a grievance in accordance with subsection (2) and the grievance has not been dealt with to the employee’s satisfaction, the employee may refer the grievance to the Board who shall, in the manner and within such time as may be prescribed, refer the grievance to an adjudicator appointed by the Board.

100.1(4)An adjudicator to whom a grievance has been referred in accordance with subsection (3) shall conduct a hearing and render a decision in respect of the grievance.

100.1(5)Sections 19, 97, 98.1, 101, 108 and 111 apply mutatis mutandis to an adjudicator to whom a grievance has been referred in accordance with subsection (3) and in relation to any decision rendered by such adjudicator.

100.1(6)Subject to subsection (7), the employer and the employee whose grievance it is shall each pay one-half of the remuneration and expenses of the adjudicator.

100.1(7)Where, in the opinion of the Board, special circumstances exist the remuneration and expenses of the adjudicator may be paid in whole or in part by the Board.

100.1(8)Notwithstanding subsection (2), where the Board has certified an employee organization as bargaining agent for a bargaining unit and no previous collective agreement or arbitral award has been executed or rendered in respect of the bargaining unit, this section applies to the employees included in the bargaining unit until one of the conditions expressed in paragraph 46(a), (b) or (c), whichever occurs first, is met.

1990, c.30, s.40; 1994, c.52, s.5

Decision final

101(1)Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court.

101(2)No order shall be made or process entered, and no proceedings shall be taken in any court, whether by way of injunction, judicial review, or otherwise, to question, review, prohibit or restrain the Board, an arbitration tribunal or an adjudicator in any of its or his proceedings.

1968, c.88, s.101; 1986, c.4, s.44; 1990, c.30, s.41

Repealed

101.1Repealed: 1988, c.64, s.11; 1988, c.67, s.10

1987, c.41, s.26; 1988, c.64, s.11; 1988, c.67, s.10

Strikes

102(1)No employee shall participate in a strike if

(a) he is not included in a bargaining unit for which a bargaining agent has been certified by the Board, or

(b) the employee is employed in a designated position.

102(2)No other employee shall participate in a strike

(a) where a collective agreement or arbitral award applying to the bargaining unit in which he is included is in force, or

(b) where no collective agreement or arbitral award applying to the bargaining unit in which he is included is in force, unless

(i) a deadlock has been declared by the Board in accordance with this Act, and

(ii) at least seven days have expired from the date on which the bargaining agent for the relevant bargaining unit has notified the Board and the employer that the employees in the relevant bargaining unit have authorized strike action.

102(3)Where subsection (1) and subsection (2) are complied with employees may strike and during the continuance of the strike

(a) the employer shall not replace the striking employees or fill their position with any other employee, and

(b) no employee shall picket, parade or in any manner demonstrate in or near any place of business of the employer.

1968, c.88, s.102; 1990, c.30, s.42; 1994, c.52, s.5

Designated positions

102.1(1)Notwithstanding paragraph 46(c) and notwithstanding that the term of the collective agreement or arbitral award last in force between the employer and the bargaining agent for the relevant bargaining unit has expired, the terms and conditions of employment contained in the agreement or award remain in force after the expiration of the agreement or award and apply in relation to an employee in the bargaining unit employed in a designated position who is required to work during a strike.

102.1(2)An employee employed in a designated position shall not, during a strike, be required to work more hours, including overtime, than the employee would have been required to work had the strike not occurred.

1990, c.30, s.43

Prohibition re employee organizations

103No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention to section 102.

1968, c.88, s.103

Unlawful strike

104(1)Where it is alleged by the employer that employees are engaged in a strike in contravention of section 102 or an employee organization has declared or authorized a strike of employees, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102, the employer may apply to the Board for a declaration that the strike is or would be unlawful.

104(1.1)Notwithstanding any other provision of this Act or the regulations, the Chairperson or such other person as may be designated by the Chairperson to act on his or her behalf, shall, within twenty-four hours after an employer applies for a declaration under subsection (1) or within such longer period as the parties may agree, and after affording an opportunity to the employees or the employee organization to be heard on the application, make the declaration applied for or shall dismiss the application.

104(2)Where it is alleged by a bargaining agent for a bargaining unit that the participation of employees included in the bargaining unit in a strike authorized or declared, or proposed to be authorized or declared, by the bargaining agent is not or would not be in contravention of section 102, the bargaining agent may apply to the Board for a declaration that the strike is or would be lawful and the Board, after affording an opportunity to the employer to be heard on the application, may make such a declaration.

104(3)Where it is alleged by a bargaining agent for a bargaining unit that the employer has, other than in accordance with subsection 76(4), locked-out the employees in the bargaining unit from their place of employment or has otherwise refused to permit the employees in the bargaining unit to work, and has refused to pay them, the bargaining agent may apply to the Board for a declaration that the actions of the employer are in contravention of subsection 76(4).

104(4)Notwithstanding any other provision of the Act or the regulations, the Chairperson or such other person as may be designated by the Chairperson to act on his or her behalf, shall, within twenty-four hours after a bargaining agent applies for a declaration under subsection (3) or within such longer period as the parties may agree, and after affording an opportunity to the employer to be heard on the application, make the declaration applied for or shall dismiss the application.

1968, c.88, s.104; 1994, c.20, s.4; 1994, c.52, s.5

Offences and penalties

105(1)Every employee who contravenes section 102 is guilty of an offence and liable on conviction to a fine of one hundred dollars for each day that the employee is in contravention of section 102.

105(2)Every officer or representative of an employee organization who contravenes section 103 is guilty of an offence and liable on conviction to a fine of three hundred dollars for each day that the officer or representative of the employee organization is in contravention of section 103.

105(3)Every employee organization that contravenes section 103 is guilty of an offence and liable on conviction to a fine of ten dollars for each employee in the relevant bargaining unit for each day that any strike declared or authorized or condoned or acquiesced in by it in contravention of that section is or continues in effect, or a fine of ten thousand dollars, whichever is greater.

1968, c.88, s.105; 1990, c.22, s.44; 1994, c.20, s.5

Prosecution re employee organization

106A prosecution for an offence under this Act may be brought against an employee organization and in the name of that organization, and for the purposes of any such prosecution an employee organization shall be deemed to be a person, and any act or thing done or omitted by an officer or representative of an employee organization within the scope of his authority to act on behalf of the employee organization shall be deemed to be an act or thing done or omitted by the employee organization.

1968, c.88, s.106

Prosecution requires consent of Board

107No prosecution arising out of an alleged failure by any person to comply with this Act and no prosecution for an offence under this Act shall be instituted except with the consent of the Board.

1968, c.88, s.107

Officials not required to give evidence

108No member of the Board, of an arbitration tribunal or of a conciliation board, no adjudicator and no conciliator, commissioner or officer or employee of or a person appointed by the Board shall be required to give evidence in any civil action, suit or other proceeding respecting information obtained in the discharge of his duties under this Act.

1968, c.88, s.108; 1990, c.30, s.44; 1991, c.53, s.12

Witness expenses

109(1)A person who is summoned by the Board, a conciliation board, a commissioner or an arbitration tribunal to attend as a witness in any proceeding of the Board, the conciliation board, the commissioner or the arbitration tribunal taken under this Act and who so attends is entitled to be paid by the Board, the conciliation board, the commissioner or the arbitration tribunal, as the case may be, 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 Queen’s Bench of New Brunswick.

109(2)An allowance for expenses paid under subsection (1) to a person who attends as a witness in any proceeding of a conciliation board or an arbitration tribunal shall, for the purposes of subsection 51(7) and section 90.2, be considered as expenses of the chairman of the conciliation board or the chairperson of the arbitration tribunal, as the case may be.

1968, c.88, s.109; 1979, c.41, s.102; 1990, c.30, s.45; 1991, c.53, s.13

Oath of appointees

110A person appointed under this Act shall, before entering upon his duties, take an oath or affirmation in the form prescribed in the Third Schedule before any person authorized by the Lieutenant-Governor in Council to take such oath or affirmation.

1968, c.88, s.110

Personnel and staff of officials

111The Board may provide an arbitration tribunal, a conciliation board, a commissioner and an adjudicator with quarters and staff and such other facilities as are necessary to enable it or him to carry out its or his functions under this Act.

1968, c.88, s.111; 1990, c.30, s.46; 1991, c.53, s.14

Repealed

112Repealed: 2013, c.44, s.39

1968, c.88, s.112; 1991, c.27, s.34; 2013, c.44, s.39

Employer not to act contrary to public interest

113(1)Nothing in this or any other Act shall be construed to require the employer to do or refrain from doing anything contrary to any instruction, direction or regulation given or made on behalf of the Government of the Province of New Brunswick in the interests of

(a) the health, safety or security of the people of the Province,

(b) the protection of data processing equipment owned by the Province, or

(c) the protection of heating plants and other buildings owned by the Province from loss of heat.

113(2)For the purposes of subsection (1), any order made by the Lieutenant-Governor in Council is conclusive proof of the matters stated therein in relation to the giving or making of any instruction, direction or regulation by or on behalf of the Government of the Province of New Brunswick in the interests of

(a) the health, safety or security of the people of the Province,

(b) the protection of data processing equipment owned by the Province, or

(c) the protection of heating plants and other buildings owned by the Province from loss of heat.

113(3)If any instruction, direction or regulation referred to in subsection (1) is given or made during a lawful strike, striking employees who are required to work in accordance with the instruction, direction or regulation shall be required to work only those hours necessary in order to comply with the instruction, direction or regulation.

1968, c.88, s.113; 1990, c.30, s.47

Annual report of Board

114Repealed: 1994, c.52, s.5

1968, c.88, s.115; 1984, c.44, s.17; 1994, c.52, s.5

FIRST SCHEDULE

PART I

Advisory Council on the Status of Women

Department of Agriculture, Aquaculture and Fisheries

Department of Economic Development

Department of Education and Early Childhood Development

Department of Energy and Mines

Department of Environment and Local Government

Department of Finance

Department of Government Services

Department of Health

Department of Healthy and Inclusive Communities

Department of Human Resources

Department of Justice

Department of Natural Resources

Department of Post-Secondary Education, Training and Labour

Department of Public Safety

Department of Social Development

Department of Tourism, Heritage and Culture

Department of Transportation and Infrastructure

Energy Efficiency and Conservation Agency of New Brunswick

Executive Council Office

Invest New Brunswick

Kings Landing Corporation

Midwifery Council of New Brunswick

M.O.R.E. SERVICES INC.

New Brunswick Economic and Social Inclusion Corporation

New Brunswick Housing Corporation

New Brunswick Internal Services Agency

New Brunswick Museum

New Brunswick Police Commission

Office of the Attorney General

Office of the Premier

Regional Development Corporation

Service New Brunswick

1973, c.40 (Supp.), s.1; 76-41; 76-68; 76-128; 78-50; 78-95; 78-132; 1978, c.D-11.2, s.32; 80-32; 80-49; 80-105; 80-125; 82-213; 1983, c.30, s.28; 1983, c.57, s.14; 1984, c.44, s.17; 84-253; 1985, c.4, s.56; 86-14; 86-185; 1986, c.8, s.107; 87-39; 1987, c.6, s.90; 1987, c.13, s.9; 88-16; 88-29; 88-37; 1988, c.11, s.7, 8, 9; 1988, c.12, s.8; 88-139; 88-238; 89-71; 89-103; 1989, c.N-5.01, s.36; 1989, c.55, s.8, 9, 10, 44; 90-72; 90-74; 1992, c.2, s.51; 1992, c.18, s.6; 92-63; 92-86; 93-168; 93-181; 93-192; 1994, c.N-6.01, s.29; 1994, c.59, s.9; 1994, c.70, s.9; 1996, c.25, s.30; 1996, c.47, s.6; 1997, c.49, s.20; 1998, c.7, s.9; 1998, c.12, s.17; 1998, c.19, s.7; 1998, c.41, s.98; 2000, c.26, s.254; 2000, c.51, s.9; 2001-71; 2001-76; 2001, c.41, s.16; 2003, c.23, s.5; 2003-31; 2004, c.20, s.53; 2005-114; 2005, c.E-9.15, s.30; 2006-20; 2006, c.16, s.150; 2007, c.10, s.82; 2007-11; 2008-40; 2008, c.6, s.37; 2008-63; 2008, c.M-11.5, s.100; 2010, c.E-1.105, s.47; 2010, c.N-6.005, s.34; 2010, c.31, s.114; 2011, c.24, s.38; 2012, c.39, s.124; 2012, c.52, s.44; 2013, c.42, s.16

PART II

Anglophone North School District

Anglophone East School District

Anglophone South School District

Anglophone West School District

Francophone nord-ouest school district

Francophone nord-est school district

Francophone sud school district

81-20; 81-213; 83-141; 84-278; 1985, c.4, s.56; 85-141; 86-135; 91-104; 92-30; 92-32; 2001-52; 2001-88; 2012-13

PART III

Ambulance New Brunswick Inc.

FacilicorpNB Ltd.

Fundy Linen Services, Inc., Saint John, N.B.

New Brunswick Health Council

Regional Health Authority A/Régie régionale de la santé A

Regional Health Authority B/Régie régionale de la santé B

76-41; 76-74; 76-128; 76-143; 77-11; 77-66; 78-1; 79-148; 80-64; 80-72; 80-87; 80-194; 81-119; 81-169; 82-140; 82-220; 84-268; 84-269; 1985, c.4, s.56; 86-43; 86-69; 88-111; 88-121; 88-247; 89-153; 92-86; 1996, c.57, s.6; 2002, c.R-5.05, s.77; 2007-44; 2008-63; 2008, c.N-5.105, s.26; 2008, c.7, s.24; 2008-104

PART IV

Financial and Consumer Services Commission

New Brunswick Liquor Corporation

New Brunswick Highway Corporation

New Brunswick Investment Management Corporation

New Brunswick Power Corporation

New Brunswick Energy Marketing Corporation

New Brunswick Legal Aid Services Commission

Workplace Health, Safety and Compensation Commission

Collège communautaire du Nouveau-Brunswick (CCNB)

New Brunswick Community College (NBCC)

1968, c.88, First Schedule; 1972, c.28, s.1; 71-61; 71-77; 71-120; 72-134; 1974, c.40 (Supp.), s.1; 76-68; 80-32; 1981, c.80, s.30; 1985, c.4, s.56; 1991, c.59, s.57; 1994, c.70, s.9; 1995, c.N-5.11, s.48; 1998, c.19, s.7; 2003, c.E-4.6, s.172; 2004, c.S-5.5, s.226; 2004-108; 2005, c.8, s.2; 2010, c.N-4.05, s.60; 2013, c.7, s.164; 2013, c.31, s.31

SECOND SCHEDULE

Civil Service Act

Teachers’ Pension Act

1968, c.88, Second Schedule; 2013, c.44, s.39

THIRD SCHEDULE

Oath or Affirmation of Fidelity

I, . . . . . . . . . . . . . . . . . . , solemnly and sincerely swear (or affirm) that I will faithfully and honestly and to the best of my skill and knowledge fulfil the duties which devolve upon me under the Public Service Labour Relations Act by reason of my duties as . . . . . . . . . . . . . . . .

(In the case where an oath is taken add “So help me God”).

1968, c.88, Third Schedule; 1983, c.4, s.19

N.B. This Act is consolidated to January 1, 2014.

P-25 - Public Service Labour Relations Act

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