Highway Workers Collective Bargaining Act

Link to law: http://nslegislature.ca/legc/statutes/highwwkr.htm
Published: 2016-01-05

Highway Workers Collective Bargaining Act

CHAPTER 1 OF THE ACTS OF 1997 (2nd Session)

amended 2001, c. 4, s. 9; 2009, c. 29, ss. 8, 9; 2010, c. 37, ss. 67-83;
2011, c. 10, ss. 21-27size>

Act Respecting Collective Bargaining
by Highway Workers

WHEREAS the Department of Transportation and Public Works, and its predecessors, and highway workers employed in the Department have governed their relations through collective bargaining since before 1973;
AND WHEREAS the highway workers have been employed under a series of collective agreements between the Minister of Transportation and Public Works, and the Minister's predecessors, and the Nova Scotia Highway Workers Union, currently represented by CUPE Local 1867, and authorized by Order in Council 73-41;
AND WHEREAS the Department and the Union are in agreement that their existing and continuing relationship should be put on a more secure foundation through collective bargaining legislation that is consistent with legislation applying to other unionized employees of Her Majesty the Queen in right of Nova Scotia:

Short title

1 This Act may be cited as the Highway Workers Collective Bargaining Act. 1997 (2nd Sess.), c. 1, s. 1.

Interpretation

2 In this Act,
(a) "adjudication" means a procedure to determine a rights dispute;
(b) "arbitration" means a procedure to determine an interest dispute;
(ba) "arbitration board" means a one-person or three-person board established pursuant to this Act for the purpose of determining an interest dispute;
(c) "Board" means the Labour Board established by the Labour Board Act;
(d) "collective agreement" means an agreement in writing between the Employer and the Union entered into pursuant to this Act;
(e) "collective bargaining" means negotiating with a view to the conclusion of a collective agreement or the renewal or revision thereof, as the case may be;
(f) "employee" means a person employed by the Employer, paid on an hourly basis and engaged in the construction and maintenance of highways, below the rank of operating supervisor or below the equivalent rank;
(g) "Employer" means Her Majesty in right of the Province, through the agency of the Department of Transportation and Infrastructure Renewal;
(h) "interest dispute" means a dispute to which Sections 15 to 34 apply and that is a dispute arising between the Employer and an employee as to the content of a collective agreement;
(i) "lock-out" includes the closing of a place of employment, a suspension of work or a refusal by the Employer to continue to employ a number of its employees in order to compel the employees, or to aid another employer to compel its employees, to agree to terms or conditions of employment;
(ia) "Minister", for the purpose of Sections 21, 22, 24, 25, 27, 28, 30, 33, 36, 37 and 39A, means the Minister of Labour and Workforce Development;
(j) "rights dispute" means a dispute to which Sections 35 to 39 apply and that is a dispute arising during the life of a collective agreement respecting the application, interpretation or alleged violation of the agreement;
(k) "strike" includes a cessation of work, a refusal to work or a refusal to continue to work by employees in combination or in concert or in accordance with a common understanding for the purpose of compelling the Employer to agree to terms or conditions of employment or to aid other employees in compelling their employer to agree to terms or conditions of employment;
(l) "Union" means the Union as referred to in or determined in accordance with Section 4. 1997 (2nd Sess.), c. 1, s. 2; 2010, c. 37, s. 67.

Application of Act to Crown

3 This Act binds Her Majesty in right of the Province. 1997 (2nd Sess.), c. 1, s. 3.

Public Service Commission

3A For the purpose of collective bargaining, the Public Service Commission is the agent of the Employer. 2001, c. 4, s. 9.

Designation of Union

4 (1) Subject to subsection (2), the Union is the Nova Scotia Highway Workers Union, CUPE Local 1867.
(2) Upon being satisfied that
(a) either

(i) a significant number of members of the Union allege that the Union is not adequately fulfilling its responsibilities to the employees, or (ii) the Union no longer represents a majority of the employees; and

(b) another union is proposed,the Board shall, upon application by an employee, conduct a vote by secret ballot to determine the wishes of the employees and replace the Union with another union where the other union receives more than fifty per cent of the votes, and it becomes the Union for the purpose of this Act.
(3) No application may be made and no vote conducted pursuant to subsection (2)
(a) where a collective agreement is not in force but the Union has been recognized pursuant to this Act, after the expiry of twelve months from the date of recognition, but not before, except with the consent of the Board;
(b) where the collective agreement is for a term of not more than three years, except after the commencement of the last three months of the operation of the collective agreement; or
(c) where a collective agreement is in force and is for a term of more than three years only

(i) after the commencement of the thirty-fourth month of its operation and before the commencement of the thirty-seventh month of its operation, (ii) during the three-month period immediately preceding the end of each year that the collective agreement continues to operate after the third year of its operation, or
(iii) after the commencement of the last three months of its operation. 1997 (2nd Sess.), c. 1, s. 4; 2010, c. 37, s. 68.

Labour Board

5 (1) The Board is constituted and shall act as a panel of the Board consisting of the Chair or a vice-chair, as the chair of a panel, and two other members of the Board equally representative of employees and employers.
(2) Notwithstanding subsection (1), the Chair or a vice-chair of the Board may sit alone to hear a matter with respect to
(a) an uncontested application or question; or
(b) a complaint under subsection 54A(3) of the Trade Union Act,
and, when doing so, may exercise all the powers of the Board. 2010, c. 37, s. 69.
6 to 8 repealed 2010, c. 37, s. 70.

Powers of Board

9 (1) The Board may, for the purpose of this Act, make or issue such orders, notices, directives, declarations or other decisions as it considers necessary, with or without conditions.
(2) Where any order, directive or decision is made by the Board pursuant to this Act and such order, directive or decision is not complied with, the Board may, on the request of the Union, an employee or the Employer, file a copy of the order, directive or decision with the prothonotary and upon such filing, the order, directive or decision becomes a decision of the Supreme Court of Nova Scotia and enforceable as such. 1997 (2nd Sess.), c. 1, s. 9.
10 and 11 repealed 2010, c. 37, s. 70.

Decisions of Board

12 (1) The Board is empowered to decide for the purpose of this Act whether
(a) a person is an employee;
(b) the parties to a dispute have settled the terms and conditions to be included in a collective agreement;
(c) a collective agreement has been entered into;
(d) a person is bound by a collective agreement;
(e) a collective agreement is in effect;
(f) there has been every reasonable effort to conclude a collective agreement;
(g) there has been a violation of Section 42 or Section 43,
and the Board's decision is final and binding.
(2) Where a question arises as to whether a person is an employee for the purpose of this Act and the issue cannot be settled by the persons involved, the question shall be referred to the Board and its decision is final and binding. 1997 (2nd Sess.), c. 1, s. 12.

Exclusion from definition of employee

13 (1) Notwithstanding clause 2(e), no person is an employee for the purpose of this Act who is
(a) appointed by the Governor in Council;
(b) appointed to the civil service;
(c) locally engaged outside the Province; or
(d) employed in a managerial or confidential capacity.
(2) A person is employed in a managerial or confidential capacity who is a manager or superintendent or any other person who, in the opinion of the Board, is employed in a confidential capacity in matters relating to labour relations or who exercises management functions. 1997 (2nd Sess.), c. 1, s. 13.

Exclusive bargaining agent

14 The Union is the exclusive bargaining agent for employees with the Employer. 1997 (2nd Sess.), c. 1, s. 14.

Negotiations

15 The Employer and the Union may enter into negotiations to effect a collective agreement on behalf of the employees. 1997 (2nd Sess.), c. 1, s. 15.

Binding effect of collective agreement

16 A collective agreement entered into by the Employer and the Union is, subject to and for the purpose of this Act, binding upon
(a) the Union and every employee represented by the Union; and
(b) the Employer. 1997 (2nd Sess.), c. 1, s. 16.

Deadline for implementation

17 Subject to subsection 34(2), the provisions of a collective agreement shall be implemented by the Employer and the Union
(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 implementation is specified, within a period of ninety days from the date of its execution. 1997 (2nd Sess.), c. 1, s. 17.

Term of collective agreement

18 (1) A collective agreement has effect in respect of the employees covered by it 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 first full bi-weekly pay period next following the date on which the agreement is executed.
(2) The Employer and the Union shall not enter into a collective agreement having a specified term of less than one year and shall not amend an agreement so as to produce a term of less than one year.
(3) Where a collective agreement contains no provision as to its term, it is deemed to be a term of one year from the day on and from which it has effect pursuant to subsection (1). 1997 (2nd Sess.), c. 1, s. 18.

Notice to commence bargaining

19 Where the Employer and the Union are parties to a collective agreement, either of them may, within a period of three months next preceding the date of the expiry of the term of or preceding termination of the agreement, by notice in writing, require the other party to the agreement to commence collective bargaining. 1997 (2nd Sess.), c. 1, s. 19.

Effect of giving notice

20 Where a notice to commence collective bargaining has been given, either under this Act or in accordance with a collective agreement that provides for a revision of a provision of the collective agreement, the Employer and the Union shall, without delay, and in any case within twenty clear days after notice has been given or such further time as the parties may agree, meet and commence or cause authorized representatives on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude and sign a collective agreement. 1997 (2nd Sess.), c. 1, s. 20.

Conciliation officer

21 Where a notice to commence collective bargaining has been given and
(a) collective bargaining has not commenced within the time prescribed within this Act;
(b) collective bargaining has commenced and either party thereto requests the Minister in writing to instruct a conciliation officer to confer with the parties to assist them to conclude a collective agreement or a renewal or revision thereof and the request is accompanied by a statement of the difficulties, if any, that have been encountered before the commencement or in the course of the collective bargaining; or
(c) in any other case in which, in the opinion of the Minister, it is advisable so to do,
the Minister may instruct a conciliation officer to confer with the Employer and the Union. 1997 (2nd Sess.), c. 1, s. 21; 2010, c. 37, s. 71.

Report of conciliation officer

22 (1) Where a conciliation officer has been instructed to confer with the Employer and the Union engaged in collective bargaining or in any dispute, the conciliation officer shall, within fourteen days after being so instructed or within any longer period that the Minister may from time to time allow, make a report to the Minister setting out
(a) the matters, if any, upon which the Employer and the Union have agreed;
(b) the matters, if any, upon which the Employer and the Union cannot agree; and
(c) any other matter that in the opinion of the officer is material or relevant or should be brought to the attention of the Minister.
(2) When a conciliation officer has made a report under subsection (1), the conciliation officer shall forthwith advise the Employer and the Union to the dispute that the officer has made a report. 1997 (2nd Sess.), c. 1, s. 22; 2010, c. 37, s. 72.

Exemption from requirement to give evidence

23 (1) Notwithstanding any other enactment or law, a conciliation officer shall not be compelled or required to give in evidence before any court, body or person having authority to receive evidence any information of any kind obtained by the officer for the purpose of this Act or in the course of the officer's duties under this Act.
(2) Notwithstanding any other enactment or law, an adjudicator, mediator-adjudicator or member of an adjudication board appointed pursuant to this Act or a collective agreement, whether selected with or without the consent of the parties involved, shall not be compelled or required to give in evidence before any court, body or person having authority to receive evidence, any information of any kind obtained by him or her for the purpose of this Act or in the course of his or her duties under this Act. 1997 (2nd Sess.), c. 1, s. 23; 2009, c. 29, s. 8.

Arbitration

24 (1) Where the Employer and the Union have bargained collectively with a view to concluding a collective agreement but have failed to reach agreement, the Employer or the Union or both shall refer those terms and conditions of employment that are in dispute to the Board and request that an arbitration board, composed of three persons unless the parties agree to submit the collective agreement to an arbitration board of one person, be established to resolve those terms and conditions.
(2) A request by either or both of the parties under subsection (1) shall
(a) where it is made by the Employer, be accompanied by a list of the terms it claims are in dispute and that the Employer wishes to be referred to arbitration at that time;
(b) where it is made by the Union, be accompanied by a list of the terms it claims are in dispute and that the Union wishes to be referred to arbitration at that time; or
(c) where it is made jointly, be accompanied by a list or [of the] terms that each party claims are in dispute and that each wishes to be referred to arbitration at that time.
(3) Upon receipt of a request by either party under subsection (1), the Board shall, as soon as possible, send a copy of the request and the list of items that are claimed to be in dispute to the other party.
(4) The party receiving the copy of the request for the appointment of an arbitration board shall, within ten days of receipt of the copy, send its list of items it wishes to be referred to arbitration to the Board and send a copy of it to the other party to the dispute. 1997 (2nd Sess.), c. 1, s. 24; 2010, c. 37, s. 73; 2011, c. 10, s. 21.

Establishment of arbitration board

25 (1) Where a request for the establishment of an arbitration board is made by the Employer or the Union, the Board may either
(a) where it is satisfied that the parties to the dispute have failed to make reasonable efforts to conclude a collective agreement, direct the parties to continue collective bargaining; or
(b) where it is satisfied that

(i) there are terms and conditions of employment that are in dispute, (ii) the terms and conditions of employment can satisfactorily be considered together,
(iii) it is an appropriate time to refer the matter to an arbitration board, and
(iv) the dispute is a proper one to refer to an arbitration board,

it may establish an arbitration board. (2) Where a request for the establishment of an arbitration board is made by the Employer and the Union jointly, the Board may, if it is satisfied with respect to the matters referred to in clause (1)(b), establish an arbitration board. 1997 (2nd Sess.), c. 1, s. 25; 2010, c. 37, s. 74.

Appointment of members of arbitration board

26 (1) Where the Board agrees to establish an arbitration board, the Board shall notify the parties to the dispute in writing accordingly and require each of them, within ten days, to
(a) where the arbitration board is to be composed of one person, attempt to agree upon a person satisfactory to both parties to be the arbitration board and, where agreement is reached, give the Board the name of the person; or
(b) where the arbitration board is to be composed of three persons, give the Board and the other party the name of a person to act as its nominee on the arbitration board.
(1A) Where agreement is reached pursuant to clause (1)(a), the person agreed upon is appointed as the arbitration board and is the chair of the arbitration board.
(2) The two persons appointed pursuant to clause 26(1)(b) to act as members of an arbitration board shall appoint a third person to act as a member and chair of the arbitration board within ten days of the date the second person is appointed. 1997 (2nd Sess.), c. 1, s. 26; 2010, c. 37, s. 75.

Appointments by Board

27 (1) Where the parties are unable to agree upon a person to be the arbitration board, pursuant to clause 26(1)(a), either or both parties may apply to the Board to appoint a person to be the arbitration board and the Board shall appoint such a person and that person is the chair of the arbitration board.
(1A) Where the Employer or the Union fails to appoint a person as a member of the arbitration board pursuant to clause 26(1)(b), the Board shall appoint a person to act as a member on its or their behalf.
(2) Where the two persons appointed as members of an arbitration board pursuant to clause 26(1)(b) fail to appoint a person to act as a member and chair, the Board shall appoint a person to act as a member and chair of the arbitration board on their behalf. 1997 (2nd Sess.), c. 1, s. 27; 2010, c. 37, s. 76.

Constitution of arbitration board

28 (1) Where a person or persons have been appointed to act as a member or members of an arbitration board, the Board, by notice in writing to the chair of the arbitration board, shall
(a) establish the member or members as an arbitration board; and
(b) list the items in dispute to be resolved by the arbitration board.
(2) An arbitration board remains constituted until it is dissolved by the Board by notice in writing to the chair of the arbitration board.
(3) No person shall be appointed as a member of an arbitration board who has any direct pecuniary interest in the matters coming before it or who is acting or has, within a period of six months immediately preceding the date of the person's appointment, active as a solicitor, counsel or agent of either of the parties.
(4) Where a member appointed to a three-person arbitration board under Section 26 or 27 ceases to act by reason of resignation, death or otherwise before the arbitration board has completed its work, the party whose point of view the member represented shall, within ten days of the member so ceasing to act, appoint a replacement and notify in writing the other party and the Board of the name and address of the replacement and, where the party fails to so appoint a replacement or to notify the Board, the Board shall appoint as a replacement such person as the Board considers suitable and the arbitration board shall continue to function as if the replacement member were a member of the arbitration board from the beginning.
(5) Where the chair of an arbitration board is unable to enter on or to carry on the chair's duties so as to enable the arbitration board to render a decision within a reasonable time after its establishment, the Board shall appoint a person to act as the chair of the arbitration board in the chair's place and the arbitration shall begin de novo. 1997 (2nd Sess.), c. 1, s. 28; 2010, c. 37, s. 77; 2011, c. 10, s. 22.

Award

29 (1) As soon as possible after making an inquiry into the terms in dispute referred to it, the arbitration board shall make its award and in its award deal with each item in dispute.
(2) The award of an arbitration board may be retroactive in whole or in part. 1997 (2nd Sess.), c. 1, s. 29; 2011, c. 10, s. 23.

Filing and notice of award

30 (1) Upon making an award, the arbitration board shall
(a) file a copy of it with the Board, and
(b) serve a copy of it on the Employer and the Union in person or by registered mail.
(2) The Board may in any manner publish an award of an arbitration board. 1997 (2nd Sess.), c. 1, s. 30; 2011, c. 10, s. 24.

Effect of award

31 (1) An award of an arbitration board is binding upon
(a) the Union and every employee,
(b) the Employer,
and the Employer and the Union shall give effect to it.
(2) Subject to subsections 33(5) and (6), the terms of an award of an arbitration board relating to entering into, renewing or revising a collective agreement shall be included in a collective agreement. 1997 (2nd Sess.), c. 1, s. 31; 2011, c. 10, s. 25.

Procedure

32 (1) Arbitration shall be conducted by an arbitration board appointed pursuant to this Act, which board shall determine its own procedure but shall give full opportunity to the Employer and the Union to present evidence and make submissions to it.
(2) An arbitration board established pursuant to this Act has, in relation to any proceedings before the arbitration board, the powers conferred on the Board, in relation to any proceedings before the Board, by the Labour Board Act, and the parties to the proceedings may
(a) appear and be heard and be represented by counsel; and
(b) call witnesses and examine or cross-examine all witnesses. 1997 (2nd Sess.), c. 1, s. 32; 2010, c. 37, s. 78.

Jurisdiction and power

33 (1) An arbitration board has the jurisdiction to determine and render a decision only in respect to those matters referred to it by the Board.
(2) In the conduct of the proceedings before it and in rendering a decision, the arbitration board may consider any factor that to it appears to be relevant to the matter in dispute including
(a) the needs of the Province and its agencies for qualified employees;
(b) where the employment is comparable or similar employment to that found in both the public and private sectors in the Province, the conditions of employment in the public and private sectors in the Province;
(c) the desirability to maintain appropriate relationships in the conditions of employment as between the various classifications of employees;
(d) the need to establish terms and conditions of employment that are fair and reasonable to the qualifications required, work performed, responsibility assumed and the nature of the services rendered; and
(e) the interest of the public.
(3) Where a one-person arbitration board has been appointed pursuant to this Act, the decision of the chair of the arbitration board is the decision of the arbitration board and, where a three-person arbitration board has been appointed pursuant to this Act, the decision of the majority of the members of the arbitration board is the decision of the board but, where there is no majority, the decision of the chair of the arbitration board is the decision of the board.
(4) Every award of the arbitration board shall be signed by the chair of the arbitration board.
(5) The Board may, upon application by either party to an award of an arbitration board, within ten days after the release of the award, give the parties an opportunity to make representation thereon to the Board and amend the award if it is shown to the satisfaction of the Board that the arbitration board has failed to deal with any matter and dispute referred to the arbitration board or that an error is apparent on the face of the award.
(6) Notwithstanding that an arbitration board has rendered an award, such award shall be of no force and effect if the Employer and the Union enter into a collective agreement concerning the subject-matter of the award within seven days from the time the award was rendered.
(7) The cost of the arbitration board shall be apportioned as follows:
(a) where a three-person arbitration board has been established,

(i) the Union shall pay the remuneration and expenses of the member appointed by it pursuant to Section 26, (ii) the Employer shall pay the remuneration and expenses of the member appointed by it pursuant to Section 26, and
(iii) the Employer and the Union shall share equally the remuneration and expenses of the chair of the arbitration board appointed pursuant to Section 26 or 27, such remuneration and expenses to be determined by the Board; or

(b) where a one-person arbitration board has been established, the Employer and the Union shall each pay one half of the remuneration and expenses of the arbitration board. 1997 (2nd Sess.), c. 1, s. 33; 2010, c. 37, s. 79; 2011, c. 10, s. 26.

Restriction on collective agreement and award

34 (1) No collective agreement or award [board] of an arbitration award shall contain any provision that would require directly or indirectly for its implementation the enactment or amendment of legislation.
(2) The Governor in Council and the Employer are not bound to implement any award of an arbitration board that would result in any department exceeding its appropriation but the Minister of Finance will include in the estimates for the next ending fiscal year an amount sufficient to implement the award retroactive to the date on which the award was to be effective. 1997 (2nd Sess.), c. 1, s. 34; 2011, c. 10, s. 27.

Final settlement and grievances

35 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by adjudication or otherwise, of all differences between the parties to or persons bound by the collective agreement, or on whose behalf it was entered into, concerning its meaning or violation.
(2) Where a collective agreement does not contain a provision as required in this Section, it is deemed to contain the following provision:
Where a difference arises between the parties relating to the interpretation or application of this agreement, including any question as to whether or not a matter is adjudicable within the meaning of subsection 35(4) of the Highway Workers Collective Bargaining Act, or where an allegation is made that the agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to adjudication.
(3) Every party to and every person bound by the agreement and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement.
(4) Where a collective agreement provides for a grievance procedure and the Employer, the Union or an employee entitled under the collective agreement to present a grievance has presented a grievance up to and including the final level in the grievance process with respect to
(a) the interpretation or application in respect of the Employer, the Union or an employee of a provision of a collective agreement; or
(b) disciplinary action resulting in discharge, suspension or financial penalty,
and the grievance has not been dealt with to the satisfaction of the Employer, the Union or an employee, then the Employer, a Union or an employee affected may, subject to subsection (5), refer the grievance to adjudication.
(5) Where a grievance within the meaning of subsection (4) is presented, the employee is not entitled to refer the grievance to adjudication unless the Union signifies in prescribed manner
(a) its approval of the reference of the grievance to adjudication; and
(b) its willingness to represent the employee in the adjudication proceedings. 1997 (2nd Sess.), c. 1, s. 35.

Manner of dealing with grievances

36 (1) Where a grievance is referred to adjudication, it shall be dealt with by either a single adjudicator or a board of adjudication.
(2) Where the Employer and Union are agreed that a matter should be referred to a single adjudicator and they are able to agree upon the adjudicator, then such adjudicator shall be appointed by the Minister.
(3) Where the Employer and the Union are agreed that a matter should be referred to a single adjudicator but are unable to agree to the adjudicator within five days after a grievance is referred to adjudication, then the single adjudicator shall be appointed by the Minister.
(4) Where the Employer and Union are unable to agree that a matter should be dealt with by a single adjudicator within five days after a grievance is referred to adjudication, then it shall be dealt with by a board of adjudication. 1997 (2nd Sess.), c. 1, s. 36; 2010, c. 37, s. 80.

Adjudication board and procedure

37 (1) When an adjudication board is required, the Minister shall appoint an adjudication board which shall be composed of
(a) one member nominated by the Union;
(b) one member nominated by the Employer; and
(c) a chair appointed pursuant to subsection (2) or (3),
all of whom shall hold office until the matter referred to the adjudication board is decided by it.
(2) The two members appointed pursuant to subsection (1) shall within five days after the day on which they are appointed, nominate a third person who is willing and ready to act to be a member and chair of the adjudication board and the Minister shall forthwith appoint that person to be a member and chair of the adjudication board.
(3) Where the two members appointed under subsection (1) fail or neglect to make a nomination within five days after their appointment, the Minister shall forthwith appoint the third member.
(4) When the adjudication board has been appointed, the Minister shall forthwith notify the parties of the names of the members of the board.
(5) Where there is an adjudication board, the decision of the majority of the adjudication board is the decision of the board but if there is no majority, the decision of the chair of the adjudication board is the decision of the board.
(6) Every decision of an adjudicator shall be signed by the adjudicator and, in the case of an adjudication board, signed by the chair of the adjudication board and shall be transmitted to the Employer and the Union within thirty days of the last day of the hearing or such longer period as is agreed by the parties.
(7) The costs of an adjudicator shall be shared equally by the Employer and the Union and the costs of the adjudication board shall be apportioned as follows:
(a) the Union shall pay the remuneration and expenses of the member appointed pursuant to clause (1)(a);
(b) the Employer shall pay the remuneration of expenses of the member appointed pursuant to clause (1)(b);
(c) the Employer and the Union shall share equally the remuneration of expenses of the chair of the adjudication board appointed pursuant to clause (1)(c) or subsection (2), which remuneration and expenses shall be determined by the Minister. 1997 (2nd Sess.), c. 1, s. 37; 2010, c. 37, s. 81.

Restriction on power to adjudicate

38 (1) No grievance shall be referred to adjudication and no adjudicator or adjudication board shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.
(2) No adjudicator or adjudication board shall, in respect of any grievance, render any decision thereof the effect of which would be to require the amendment of a collective agreement. 1997 (2nd Sess.), c. 1, s. 38.

Powers and duties of adjudicator and parties

39 (1) Where a grievance is referred to adjudication, the adjudicator or adjudication board shall give both parties to the grievance an opportunity to be heard.
(2) 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.
(3) Where a decision on any grievance requires any action by or on the part of an employee or the Union or both of them, the employee, or the Union or both, as the case may be, shall take such action.
(4) Where an adjudicator or an adjudication board determines that an employee has been discharged or disciplined by the Employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the adjudication, the adjudicator or the adjudication board has the power to substitute for the discharge or discipline any other penalty that to the adjudicator or the adjudication board seems just and reasonable in the circumstances. 1997 (2nd Sess.), c. 1, s. 39.

Mediator-adjudicator

39A (1) Notwithstanding any grievance or adjudication provision contained in a collective agreement or deemed to be contained in a collective agreement under subsection 35(2), the parties to a collective agreement may, at any time, agree to refer one or more grievances to a mediator-adjudicator for the purpose of resolving the grievances in an expeditious and informal manner.
(2) Where the parties to a collective agreement wish to make use of a mediator-adjudicator but are unable to agree upon one, the Minister shall appoint a mediator-adjudicator upon the request of the parties.
(3) A mediator-adjudicator appointed under this Section shall attempt to assist the parties to the collective agreement to settle the grievance by mediation.
(4) Where the parties to the collective agreement are not able to settle a grievance by mediation, the mediator-adjudicator shall attempt to assist the parties to agree upon the material facts in the dispute and shall then determine the grievance by adjudication.
(5) When determining a grievance by adjudication, a mediator-adjudicator may limit the nature and extent of evidence and submissions and may impose such conditions as the mediator-adjudicator considers appropriate.
(6) A mediator-adjudicator shall deliver a decision within thirty days after completing an adjudication of a grievance.
(7) Section 39 applies to mutatis mutandis to a mediator-adjudicator and a settlement or decision under this Section. 2009, c. 29, s. 9; 2010, c. 37, s. 82.

Prohibition of strikes and lockouts

40 (1) The Employer shall not cause a lockout and an employee shall not strike.
(2) Nothing in this Act shall be interpreted to prohibit the suspension or discontinuance of operations in an Employer's establishment, in whole or in part, not constituting a lockout or a strike. 1997 (2nd Sess.), c. 1, s. 40.

Prohibition of Union action respecting strikes

41 The Union shall not sanction, encourage or support, financially or otherwise, a strike by its members, or any of them, who are governed by this Act. 1997 (2nd Sess.), c. 1, s. 41.

Retaliatory action

42 The Employer, or a person acting on behalf of the Employer, shall not
(a) refuse to employ or terminate the employment of any person or discriminate against any person in regard to employment or any term or condition of employment because the person

(i) is a member of the Union or is an applicant for membership in the Union, (ii) has testified or otherwise participated or may testify or otherwise participate in a proceeding under this Act,
(iii) has made or is about to make a disclosure that the person may be required to make in a proceeding of this Act, or
(iv) has made an application or filed a complaint under this Act;

(b) impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred upon the employee by this Act; or (c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of the Union. 1997 (2nd Sess.), c. 1, s. 42.

Prohibition of certain actions by Union

43 (1) The Union or a person acting on behalf of a Union shall not
(a) except with the consent of the Employer, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become or to refrain from becoming or to cease to be a member of the Union;
(b) use coercion or intimidation of any kind with respect to any employee with a view to encouraging or discouraging membership or activity in the Union; or
(c) discriminate against a person in regard to employment or membership in the Union or intimidate or coerce a person or impose a pecuniary or other penalty on a person because the person

(i) has testified or otherwise participated or may testify or otherwise participate in a proceeding authorized or permitted under a collective agreement or proceeding under this Act, (ii) has made or is about to make a disclosure that the person may be required to make in a proceeding authorized or permitted under a collective agreement or a proceeding under this Act, or
(iii) has made an application or filed a complaint under this Act.

(2) For greater certainty, clause 43(1)(b) does not prohibit the Employer and the Union from inserting in a collective agreement a provision requiring, as a condition of employment, membership in the Union. 1997 (2nd Sess.), c. 1, s. 43.

Offences and penalties

44 (1) An employee who contravenes this Act or fails to do anything required of an employee by this Act is guilty of an offence and liable upon summary conviction to a fine of not more than one hundred dollars for each day during which the contravention or failure occurs or continues.
(2) Every person acting on behalf of the Employer who declares or causes a lockout contrary to this Act is liable upon summary conviction to a penalty not exceeding three hundred dollars for each day that the lockout exists.
(3) Where the Union declares or authorizes a strike contrary to this Act, it is liable upon summary conviction to a penalty not exceeding three hundred dollars for each day that the strike exists.
(4) Every officer or representative of the Union who declares or authorizes a strike contrary to this Act is liable upon summary conviction to a penalty not exceeding three hundred dollars for each day that the strike exists. 1997 (2nd Sess.), c. 1, s. 44.

Questions of law and references to Court of Appeal

45 (1) repealed 2010, c. 37, s. 83.
(2) An arbitration board, adjudicator or an adjudication board may, of its own motion or on application of the Employer or the Union, state a case in writing for the Nova Scotia Court of Appeal upon any question that is a question of law.
(3) A like reference to that contained in subsection (2) may also be made by the Board.
(4) The Court of Appeal shall hear and determine questions of law arising as a result of a stated case taken pursuant to subsection (2) or (3) and remit the matter to the arbitration board, the adjudicator, the adjudication board or the Board, whichever is appropriate under the circumstances with the opinion of the Court thereon. 1997 (2nd Sess.), c. 1, s. 45; 2010, c. 37, s. 83.

Existing grievances and arbitrations

46 (1) In this Section,
(a) "arbitration" has the same meaning as in a predecessor agreement;
(b) "predecessor agreement" means a collective agreement between the Employer and Union in effect before the coming into force of this Act.
(2) Grievances and arbitrations arising or in progress under any predecessor agreement shall be continued and decided in accordance with that agreement and a decision given in such an arbitration is binding on the Employer, the Union and the employees as if made pursuant to this Act. 1997 (2nd Sess.), c. 1, s. 46.
47 repealed 2010, c. 37, s. 83.

Effect of existing notices

48 Where a notice has been given before the coming into force of this Act by the Employer or the Union to the other to commence collective bargaining, the notice is deemed to have been given in accordance with this Act. 1997 (2nd Sess.), c. 1, s. 48.
Schedule repealed 2010, c. 37, s. 83.
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