Labour Relations Amendment Act (Construction Industry), 2000, S.O. 2000, c. 24 - Bill 69

 

chapter 24

An Act to amend the Labour Relations Act, 1995 in relation to the construction industry

Assented to December 4, 2000

Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:

1. Section 125 of the Labour Relations Act, 1995, as amended by the Statutes of Ontario, 1998, chapter 8, section 15, is further amended by adding the following clause:

(l.0.1) designating regional employers’ organizations for the purposes of section 151.

2.  Section 126 of the Act, as amended by the Statutes of Ontario, 1998, chapter 8, section 16, is further amended by adding the following subsections:

Interpretation

(2) Subsections (3) and (5) apply with respect to an employer or a non-construction employer where a trade union, council of trade unions or affiliated bargaining agent or employee bargaining agency, as defined in section 151, has bargaining rights in relation to construction work performed by or on behalf of that employer or non-construction employer.

Single employer declarations

(3) The following apply if an application is made under subsection 1 (4) for a declaration that two or more entities should be treated as constituting one employer and any of the entities is an employer or a non-construction employer:

1. The Board shall not consider any relationship by way of blood, marriage or adoption between an individual having a direct or indirect involvement with one of the entities and an individual having a direct or indirect involvement with any of the other entities.

2. If the applicant proposes that the entities should be treated as constituting one employer because an individual was a key individual with respect to two or more of them and if the time at which the individual was alleged to have been a key individual with respect to one of the entities is a different time than that at which he or she is alleged to have been a key individual with respect to the others, the Board shall consider,

i. the length of any hiatus between when the individual was a key individual with the one entity and when the individual was a key individual with the other entity or entities,

ii. whether the first entity with respect to which the individual is alleged to have been a key individual was one with which he or she occupied a formal management role; and

iii. whether the first entity with respect to which the individual is alleged to have been a key individual was able to carry on business without substantial disruption or loss when he or she ceased to be involved with that entity.

Definition

(4) In subsection (3),

“entity” means a corporation, individual, firm, syndicate or association or any combination of any of them.

Sale of a business

(5) In determining whether an employer or a non-construction employer has sold a business, the following apply:

1. The Board shall not consider any relationship by way of blood, marriage or adoption between an individual having a direct or indirect involvement with the employer or non-construction employer that sold the business and an individual having a direct or indirect involvement with the person to whom the business was allegedly sold.

2. If it is alleged that the employer or non-construction employer sold a business because an individual was a key individual in relation both to the alleged seller and to the person to whom the business was allegedly sold and if the time at which the individual was alleged to have been a key individual in relation to the alleged seller is a different time than that at which he or she was alleged to have been a key individual in relation to the person to whom the business was sold, the Board shall consider,

i. the length of any hiatus between when the individual was a key individual in relation to the alleged seller and when the individual was a key individual in relation to the person to whom the business was allegedly sold,

ii. whether the individual occupied a formal management role with the alleged seller, and

iii. whether the alleged seller was able to carry on business without substantial disruption or loss when the individual ceased to be involved with the alleged seller.

3. The Act is amended by adding the following sections:

Residential Sector of the Construction Industry

Application of section

150.1 (1) This section applies only with respect to the geographic areas of jurisdiction of  the following municipalities:

1. The City of Toronto.

2. The Regional Municipality of Halton.

3. The Regional Municipality of Peel.

4. The Regional Municipality of York.

5. The Regional Municipality of Durham.

6. The County of Simcoe.

Deemed expiry of collective agreements

(2) A collective agreement between an employer or employers’ organization and a trade union or council of trade unions that applies with respect to work performed in the residential sector of the construction industry shall be deemed to expire with respect to that work on April 30, 2001 if,

(a) it is in effect on the day section 3 of the Labour Relations Amendment Act (Construction Industry), 2000 comes into force or it comes into effect after that day; and

(b) it is to expire before April 30, 2004.

Same

(3) Subsection (2) applies even if the collective agreement would have a term of less than one year as a result.

Notice to bargain

(4) Despite subsection 59 (1), a notice of desire to bargain may be given any time after December 31, 2000 with respect to a collective agreement that is deemed under this section to expire on April 30, 2001.

No extension permitted

(5) The parties to a collective agreement described in subsection (2) may not agree to continue the operation of that agreement with respect to work performed in the residential sector of the construction industry beyond April 30, 2001 and any renewal provision in a collective agreement that purports to do so shall be deemed to be void.

Agreements to be three-year agreements

(6) Every collective agreement to which subsection (2) applies that is renewed and every new collective agreement that is made to replace a collective agreement to which subsection (2) applies shall, with respect to work performed in the residential sector of the construction industry, provide for the expiry of the agreement on April 30, calculated triennially from April 30, 2001.

Clarification re other work

(7) Nothing in this section shall be interpreted to affect the validity of a collective agreement to which this section applies with respect to work other than work performed in the residential sector of the construction industry in the geographic areas referred to in subsection (1).

Application of section

150.2 (1) A reference in this section to a collective agreement that expires on April 30, 2001 shall be deemed to be a reference to a collective agreement that is deemed under subsection 150.1 (2) to expire on April 30, 2001 with respect to work performed in the residential sector of the construction industry in the geographic areas referred to in subsection 150.1 (1).

Prohibition re strike

(2) No individual represented by a trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30, 2001 shall commence or continue a strike after June 15, 2001 with respect to work in the residential sector of the construction industry in the geographic areas referred to in subsection 150.1 (1).

Prohibition re calling strike

(3) No trade union or council of trade unions that is seeking to renew or replace a collective agreement that expires on April 30, 2001 shall call or authorize a strike or the continuation of a strike after June 15, 2001 with respect to work in the residential sector of the construction industry in the geographic areas referred to in subsection 150.1 (1).

Prohibition re calling lock-out

(4) No employer or employers’ organization that is seeking to renew or replace a collective agreement that expires on April 30, 2001 shall call or authorize a lock-out or the continuation of a lock-out after June 15, 2001 with respect to work in the residential sector of the construction industry in the geographic areas referred to in subsection 150.1 (1).

Interest arbitration

(5) Subject to subsection (6), either party to negotiations for the renewal or replacement of a collective agreement that expires on April 30, 2001 may, by notice given in accordance with subsection (8), require that the matters in dispute between them be decided by arbitration.

Restriction

(6) A party shall not give notice under subsection (5) until the later of,

(a) the day on which a strike or lock-out would have been legal had it not been for this section; and

(b) June 15, 2001.

Exception

(7) Despite subsection (6), notice under subsection (5) may be given any time after April 30, 2001 if notice of desire to bargain has been given and both parties agree that it may be done.

Notice

(8) The notice shall be given in writing to the other party and to the Minister of Labour.

If notice given

(9) If notice is given under subsection (5),

(a) the parties may jointly appoint an arbitrator or either party may request the Minister in writing to appoint an arbitrator;

(b) if subsection (7) applies, the Minister shall not appoint a conciliation officer, a conciliation board or a mediator;

(c) if subsection (7) applies and a conciliation officer, a conciliation board or a mediator has been appointed, that appointment shall be deemed to be terminated; and

(d) subject to subsection (10), all terms and conditions of employment and all rights, privileges and duties that existed under the collective agreement that expired on April 30, 2001 shall apply with respect to the employer, the trade union and the employees, as the case may be, during the period beginning on the day on which notice was given and ending on the day,

(i) a new collective agreement is made or the collective agreement that expired is renewed, or

(ii) the right of the trade union to represent the employees is terminated.

Exception

(10) The employer and the trade union may agree to alter a term or condition of employment or a right, privilege or duty referred to in clause (9) (b).

Minister to appoint arbitrator

(11) Upon receiving a request under clause (9) (a), the Minister shall appoint an arbitrator.

Replacement

(12) If the arbitrator who is appointed is unable or unwilling to perform his or her duties, a new arbitrator shall be appointed in accordance with subsections (9) and (11).

Appointment and proceedings not to be questioned

(13) Where an individual has been appointed as an arbitrator under this section, it shall be presumed conclusively that the appointment was properly made and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.

Fees and expenses

(14) Each party shall pay one-half of the fees and expenses of the arbitrator.

Arbitration method and procedure

(15) If the parties do not agree upon the method of arbitration or the arbitration procedure, the method or procedure, as the case may be, shall be as prescribed by the regulations.

Non-application of Arbitration Act, 1991

(16) The Arbitration Act, 1991 does not apply to an arbitration under this section.

Regulations

(17) The Lieutenant Governor in Council may make regulations,

(a) prescribing a method of arbitration, which may be mediation-arbitration, final offer selection or any other method of arbitration;

(b) prescribing an arbitration procedure;

(c) prescribing the powers of an arbitrator;

(d) prescribing a scale of fees and expenses allowable to arbitrators with respect to their duties under this section and limiting or restricting the application of those fees or expenses;

(e) providing a procedure for the review and determination of disputes concerning the fees and expenses charged or claimed by an arbitrator;

(f) governing the filing of schedules of fees and expenses by arbitrators, requiring arbitrators to provide parties with a copy of the schedules upon being appointed and requiring arbitrators to charge fees and expenses in accordance with the filed schedules;

(g) providing for the circumstances under which the jurisdiction of the arbitrator may be limited where the parties have agreed to some of the matters in dispute;

(h) prescribing time limits for the commencement of arbitration proceedings or for the rendering of the arbitrator’s decision and providing for the extension of those time limits;

(i) requiring the parties to prepare and execute documents giving effect to the arbitrator’s decision, requiring the arbitrator to prepare those documents if the parties fail to do so and providing for the deemed execution of the documents if either or both of the parties do not execute them.

Repeal of subsections

(18) Subsections (1) to (17) are repealed on April 30, 2002.

Continued application

(19) Despite the repeal of subsections (1) to (17), those subsections continue to apply for purposes of any arbitration proceedings commenced under this section that were not completed before April 30, 2002.

Director to convene meeting

150.3 (1) At least twice in each year beginning in 2001, the Director of Labour Management Services shall convene a meeting of representatives of employers or employers’ organizations and of trade unions or councils of trade unions to discuss matters of interest relating to collective bargaining and labour relations in the residential sector of the construction industry.

Selection

(2) The representatives invited to attend the meeting shall be selected by the Director of Labour Management Services in his or her sole discretion.

4. (1) Subsection 151 (1) of the Act is amended by adding the following definition:

“designated regional employers’ organization” means an organization of employers that operate businesses in a particular geographic area in the construction industry if that organization is designated as such by the Minister.  (“association patronale régionale désignée”)

(2) Section 151 of the Act is amended by adding the following subsections:

Designation of regional employers’ organizations

(3) The Minister may, upon the terms and conditions the Minister considers appropriate, designate regional employers’ organizations.

Non-application

(4) The Regulations Act does not apply to a designation made under subsection (3).

5.  (1) The Act is amended by adding the following section:

Deemed abandonment of bargaining rights

160.1 (1) The Lieutenant Governor in Council may, by regulation, deem bargaining rights held by an employee bargaining agency and its affiliated bargaining agents to be abandoned with respect to an employer or a class of employers.

Scope of regulation

(2) A regulation made under subsection (1) may apply with respect to all of Ontario or any part or parts of it.

Effect of regulation

(3) On the day a regulation made under this section comes into force,

(a) the affiliated bargaining agents of the employee bargaining agency referred to in the regulation cease to represent the employees of the employer employed in the industrial, commercial and institutional sector of the construction industry in the area to which the regulation applies;

(b) the bargaining rights vested in the employee bargaining agency under section 156 shall not be exercised for any purpose relating to the employer or class of employers referred to in the regulation in the area to which the regulation applies; and

(c) any provincial agreement to which the employee bargaining agency is a party that bound the employer or employers in the class of employers referred to in the regulation ceases to bind them in the area to which the regulation applies.

Abandonment of rights by other means not precluded

(4) This section shall not be interpreted to preclude the abandonment of bargaining rights by other means.

(2) Section 160.1 of the Act, as enacted by subsection (1), is repealed on the day that is one year after the day this section comes into force.

6. Subsection 162 (2) of the Act, as amended by the Statutes of Ontario, 1998, chapter 8, section 20, is further amended by striking out “Subject to sections 153, 161 and 163.1” at the beginning and substituting “Subject to sections 153, 161, 163.1, 163.2 and 163.3”.

7. The Act is amended by adding the following sections:

Local modifications to provincial agreement

163.2 (1) An employer bargaining agency that is a party to a provincial agreement may apply to an affiliated bargaining agent that is bound by that agreement to agree to amendments to the agreement which would apply to any of the following:

1. The kind of work performed, which could be all work performed in the industrial, commercial and institutional sector or a specified kind of that work.

2. The market in which it is performed, which could be work performed for all of the industrial, commercial and institutional sector or a specified market in it.

3. The location of the work, which could be work performed in all of the affiliated bargaining agent’s geographic jurisdiction or a specified portion of it.

Same

(2) A designated regional employers’ organization having members who are bound by a provincial agreement may apply to an affiliated bargaining agent that is bound by that agreement to agree to amendments to the agreement which would apply to any of the matters set out in paragraphs 1, 2 and 3 of subsection (1) if at least some of the members of the designated regional employers’ organization who are bound by the provincial agreement carry on business in the area covered by the affiliated bargaining agent’s geographic jurisdiction.

Restriction on timing of application

(3) No application shall be made under subsection (1) or (2) during the period of 120 days before the provincial agreement ceases to operate.

Restriction re amendments

(4) The application may seek only amendments that concern the following matters:

1. Wages, including overtime pay and shift differentials.

2. Restrictions on the hiring of employees who are members of another affiliated bargaining agent that is in the same employee bargaining agency as that in which the affiliated bargaining agent is a member but who are not members of the affiliated bargaining agent.

3. Restrictions on an employer’s ability to select employees who are members of the affiliated bargaining agent.

4. Accommodation and travel allowances.

5. Requirements respecting the ratio of apprentices to journeymen employed by an employer.

6. Hours of work and work schedules.

Form and content of application

(5) The application shall be in writing and shall,

(a) state the kind of work, the specified market and the location with respect to which the amendments would apply;

(b) set out any submissions the applicant believes to be relevant to determine the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to any of the matters referred to in clause (a); and

(c) set out the text of the amendments which are applied for.

Service of application

(6) The applicant shall serve the application on the affiliated bargaining agent and shall serve a copy of it,

(a) on the employee bargaining agency of which the affiliated bargaining agent is a member;

(b) if the applicant is an employer bargaining agency, on any designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction; and

(c) if the applicant is a designated regional employers’ organization, on the employer bargaining agency that is a party to the provincial agreement and on any other designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction.

Agreement on amendment

(7) Subject to subsections (8) and (9), if the applicant and the affiliated bargaining agent agree to amend the provincial agreement and the employee bargaining agency of which the affiliated bargaining agent is a member advises the applicant in writing that it approves of the amendments, the provincial agreement is amended accordingly, but only with respect to the kind of work, the market and the location specified in the application.

Agreement requirements

(8) The agreement is not effective unless it is in writing and sets out the text of the amendments.

Additional requirement re designated regional employers’
organization

(9) If the applicant is a designated regional employers’ organization and the employer bargaining agency advises the employee bargaining agency in writing that it approves of the amendments that were agreed to under subsection (7), the provincial agreement shall be deemed to be so amended.

Bar to other applications

(10) If an application has been made to an affiliated bargaining agent under this section,  no other application may be made to that agent that would apply, in whole or in part, to the same kind of work with respect to the same market and in the same location,

(a) if the work, the market and the location are not the subject of a referral to an arbitrator under section 163.3, until six months and 21 days after the day on which the first application was served on the affiliated bargaining agent; and

(b) if the work, the market and the location are the subject of such a referral, until six months after the arbitration proceedings have terminated.

Application of section

(11) This section applies only with respect to provincial agreements that come into operation after the day section 7 of the Labour Relations Amendment Act (Construction Industry), 2000 comes into force.

Referral to arbitration

163.3 (1) If a provincial agreement that is the subject of an application under section 163.2 is not amended in accordance with that section within 14 days after the day on which the application was served on the affiliated bargaining agent, the applicant may give notice to the bargaining agent that it is referring the matter to a single arbitrator.

Notice requirements

(2) The notice of referral shall be in writing and shall,

(a) state the name of the individual whom the organization making the referral  nominates as the arbitrator;

(b) set out the organization’s final offer with respect to the text of the amendments that the organization proposes to be made to the provincial agreement; and

(c) be accompanied by copies of those statements and submissions under clauses 163.2 (5) (a) and (b) that were provided with the application made under subsection 163.2 (1) or (2).

Restriction re subject matter of amendments

(3) The amendments proposed in the final offer of the organization making the referral may deal only with those provisions of the provincial agreement that concern the matters permitted in the original application, as set out in subsection 163.2 (4).

Restriction re subject matter of amendments

(4) The organization making the referral may include in the notice of referral only those submissions that were included in the application under subsection 163.2 (1) or (2).

Service of notice

(5) The organization making the referral shall serve the notice of referral and the statements and submissions referred to in clause (2) (c) on the affiliated bargaining agent and shall serve a copy of the notice of referral without those statements and submissions,

(a) on the employee bargaining agency of which the affiliated bargaining agent is a member;

(b) if the organization making the referral is an employer bargaining agency, on any designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction; and

(c) if the organization making the referral is a designated regional employers’ organization, on the employer bargaining agency that is a party to the provincial agreement and on any other designated regional employers’ organization having members who carry on a business in the area covered by the affiliated bargaining agent’s geographic jurisdiction.

Service of response

(6) Within seven days after being served with a notice of referral, the affiliated bargaining agent,

(a) shall serve a response on the organization that made the referral; and

(b) shall serve a copy of the response, without the submissions, if any, referred to in clause (7) (c), on the organizations described in clauses (5) (a), (b) and (c).

Form and content of response

(7) The response shall be in writing and,

(a) shall state whether the affiliated bargaining agent agrees to the appointment of the individual whom the referrer nominated as the arbitrator and, if it does not agree, name the individual whom the affiliated bargaining agent nominates as arbitrator;

(b) shall set out the affiliated bargaining agent’s final offer with respect to the text of the amendments, if any, that it proposes to be made to the provincial agreement; and

(c) shall set out any submissions that the affiliated bargaining agent believes are relevant to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to the kind of work, the market and the location to which the amendments would apply.

Joint appointment of arbitrator

(8) If the parties agree on the appointment of an arbitrator, they shall jointly appoint him or her and advise each organization that was served with copies of the notice of referral and response that they have done so.

Failure to appoint

(9) If, within seven days after the affiliated bargaining agent is served with a notice of referral under subsection (5), the bargaining agent and the organization making the referral have not appointed an arbitrator, either of them may make a written request to the Minister to appoint an arbitrator.

Appointment by Minister

(10) Within two days after receiving a request under subsection (9), the Minister shall appoint an arbitrator and shall inform the affiliated bargaining agent and the organization making the referral of the name and address of  the arbitrator.

Replacement

(11) If the arbitrator who is appointed is unable or unwilling to perform his or her duties, a new arbitrator shall be appointed in accordance with subsections (8), (9) and (10).

Appointment and proceedings not to be questioned

(12) Where an individual has been appointed as an arbitrator under this section, it shall be presumed conclusively that the appointment was properly made and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.

Notice of appointment

(13) Where the Minister appoints an arbitrator, the parties shall advise each organization that was served with copies of the notice of referral and response that the Minister has done so.

Notice and response delivered to arbitrator

(14) When the organization making the referral and the affiliated bargaining agent appoint an arbitrator under subsection (8) or receive notice of an appointment under subsection (10), they shall each deliver to the arbitrator copies of the notice of referral and response, respectively.

Other organizations

(15) The organization making the referral shall advise the arbitrator of the names and mailing addresses of the organizations that were served with a copy of the notice of referral under clauses (5) (a), (b) or (c).

Submission re factual error

(16) If the organization that made the referral to the arbitrator believes that the affiliated bargaining agent’s response under subsection (7) contains a factual error, the organization may make a written submission to the arbitrator concerning the alleged error.

Restriction

(17) The submission made under subsection (16) shall contain no new arguments in support of the organization’s position with respect to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage.

Submission served on affiliated bargaining agent

(18) An organization that makes a written submission to the arbitrator under subsection (16) shall also serve that submission on the affiliated bargaining agent at the same time.

Response to submission under subs. (16)

(19) If the organization that made the referral makes a submission under subsection (16), the affiliated bargaining agent may make a written submission to the arbitrator in response and shall also serve a copy of it on the organization at the same time.

Restriction

(20) The submission made under subsection (19) shall contain no new arguments in support of the affiliated bargaining agent’s position with respect to the question of whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage.

Written hearing

(21) After being appointed, the arbitrator shall hold a written hearing.

Restriction on what arbitrator may consider

(22) Subject to subsection (23), the arbitrator shall consider only the following when making a decision:

1. The statements and submissions under clauses 163.2 (5) (a) and (b) that were included with the original application under subsection 163.2 (1) or (2), as the case may be.

2. The final offer of the organization making the referral to arbitration.

3. The affiliated bargaining agent’s final offer as set out under clause (7) (b).

4. The submissions contained in the affiliated bargaining agent’s notice under clause (7) (c).

Use of submissions under subss. (16) and (19)

(23) The arbitrator may consider submissions made under subsections (16) and (19) but only with respect to matters of fact.

Same

(24) In considering a submission made under subsection (16) or (19), the arbitrator shall not consider any matters of opinion or any new arguments contrary to subsection (17) or (20).

Oral, electronic hearings

(25) The arbitrator may convene an oral or electronic hearing if he or she feels it is necessary to do so in order to resolve an issue arising from a submission made under subsection (16) or (19) or in order to resolve any other issue he or she feels cannot be adequately addressed without such a hearing.

Failure to serve an organization

(26) If the arbitrator becomes aware that an organization that should have been served with a copy of a notice of referral under subsection (5) or a copy of a response under subsection (6) was not so served, the arbitrator shall arrange for service on that organization.

Arbitrator’s powers

(27) Subsection 48 (12) applies with necessary modifications with respect to the arbitrator.

No amendment of final offers

(28) The arbitrator shall not consider any purported amendment to a final offer.

Decision

(29) After considering the submissions and final offers which he or she may consider under this section, the arbitrator,

(a) shall determine whether the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage with respect to the kind of work, the market and the location indicated in the application;

(b) if the arbitrator finds that the provisions of the provincial agreement render employers who are bound by it at a competitive disadvantage, shall determine whether the competitive disadvantage would be removed if the provincial agreement were amended in accordance with either of the final offers;

(c) if amendment of the provincial agreement in accordance with only one of the final offers would remove the competitive disadvantage, shall select that final offer;

(d) if amendment of the provincial agreement in accordance with neither of the final offers would remove the competitive disadvantage, shall select the final offer that most reduces the disadvantage; and

(e) if amendment of the provincial agreement in accordance with either of the final offers would remove the competitive disadvantage, shall select the final offer that would be less of a deviation from the provincial agreement.

Timing of decision

(30) Subject to subsection (32), the arbitrator shall give his or her written decision to the parties and any organizations that were served under subsection (5) or (26) within 12 days after the day on which he or she was appointed.

No reasons

(31) The decision shall not include reasons.

Extension of time by agreement

(32) The time limit set out in subsection (30) may be extended by agreement of the organization that made the referral, the affiliated bargaining agent and all of the organizations that were served with copies of the notice of referral.

Parties to prepare document

(33) If the arbitrator selects a final offer containing amendments to the provincial agreement, the parties to the provincial agreement shall prepare and execute a document giving effect to his or her decision within five days after the organization that made the referral is advised of the arbitrator’s decision.

When document prepared by arbitrator

(34) If the parties have not prepared and executed a document within the time required by subsection (33),  either party may ask the arbitrator to prepare the document and the arbitrator shall do so and provide the document to the organization that made the referral.

Deemed execution

(35) If the arbitrator has prepared a document and either party to the provincial agreement has not executed it within five days after the arbitrator provided it to the organization that made the referral, the document shall be deemed to have been executed by both parties.

Effective date of amended provincial agreement

(36) The amendments to the provincial agreement, as they appear in the document prepared and executed under subsections (33) to (35), shall be deemed to have come into effect on the day of the arbitrator’s decision.

Fees and expenses

(37) The organization that made the referral and the affiliated bargaining agent shall each pay one-half of the fees and expenses of the arbitrator.

Non-application of Arbitration Act, 1991

(38) The Arbitration Act, 1991 does not apply to an arbitration under this section.

Judicial review

(39) On an application for judicial review of the arbitrator’s decision, no determination or selection that the arbitrator was required to make under subsection (29) shall be overturned unless the determination or selection was patently unreasonable.

Application of section

(40) This section applies only with respect to provincial agreements that come into operation after the day section 7 of the Labour Relations Amendment Act (Construction Industry), 2000 comes into force.

Service

163.4  (1) For the purposes of sections 163.2 and 163.3, service may be effected,

(a) in the case of service on an organization, by personal service on an officer of the organization or by facsimile transmission to the organization;

(b) in the case of service on an individual, by personal service or by facsimile transmission.

Amendment deemed under subs. 58 (5)

(2) An amendment to a provincial agreement made in accordance with section 163.2 or 163.3 shall be deemed to be a revision by mutual consent of the parties within the meaning of subsection 58 (5).

Where conflict

(3) If there is a conflict between an amendment to a provincial agreement made in accordance with section 163.2 or 163.3 and provisions that are deemed to be included in the provincial agreement under subsection 163.5 (1), the amendment to the provincial agreement prevails.

8.  The Act is amended by adding the following section:

Election

163.5 (1) A provincial agreement shall be deemed to include the following provision with respect to an employer who is bound by it if the employer so elects:

1. Up to 75 per cent of the employees who perform work in fulfilling a contract for construction in the industrial, commercial and institutional sector of the construction industry may be individuals who were hired by the employer without referral from or selection, designation, assignment or scheduling by or the concurrence of the affiliated bargaining agent in whose geographic jurisdiction the work is performed.

2. For the purposes of article 1, no more than 40 per cent of the employees who perform work in fulfilling the contract may be individuals who are not members of the affiliated  bargaining agent in whose geographic jurisdiction the work is performed.

3. The percentages set out in articles 1 and 2 must apply with reference to the number of employees of the employer who perform work under the provincial agreement on each day during the period in which the contract is being fulfilled.

Scope of election

(2) The election may be made with respect to one or more or all of the construction contracts that the employer fulfils using employees who perform work under the provincial agreement.

Manner of election

(3) An election under subsection (1) shall be made by giving written notice of the election to the employee bargaining agency that is party to the provincial agreement.

Restriction re: membership in local

(4) Nothing in article 1 of the provision set out in subsection (1) permits an employer to employ an individual who is not a member of the affiliated bargaining agent in whose geographic jurisdiction the work is performed if,

(a) the provincial agreement would prohibit that employment; and

(b) the employment of the individual is not permitted under article 2 of the provision.

Restriction: membership in affiliate

(5) Nothing in article 2 of the provision set out in subsection (1) permits an employer to employ an individual who is not a member of an affiliated bargaining agent that is subordinate or directly related to the same provincial, national or international trade union as the affiliated bargaining agent in whose geographic jurisdiction the work is performed if the provincial agreement would prohibit that employment.

Inconsistency

(6) Subject to subsection 163.4 (3), a provision in a provincial agreement that is inconsistent with an article in the provision set out in subsection (1) is, to the extent of the inconsistency, of no effect.

Decreased percentages

(7) An employee bargaining agency and an employer bargaining agency may agree that an employer may not make the election under subsection (1) or may agree to either or both of the following:

1. That article 1 of the provision set out in subsection (1) shall be read as if it referred to a specified percentage less than 75 per cent.

2. That article 2 of the provision set out in subsection (1) shall be read as if it referred to a specified percentage less than 40 per cent.

Restriction re: impasse

(8) No strike or lock-out shall be called or authorized because there is a failure to reach an agreement under subsection (7).

Increased percentages

(9) An employee bargaining agency and an employer bargaining agency may agree to any or all of the following:

1. That article 1 of the provision set out in subsection (1) shall be read as if it referred to a specified percentage of more than 75 per cent.

2. That article 2 of the provision set out in subsection (1) shall be read as if it referred to a specified percentage of more than 40 per cent.

3. That article 3 of the provision set out in subsection (1) shall be read as if it required the percentages set out in sections 1 and 2 of the provision to be applied with reference to the total number of employees of the employer who perform work under the provincial agreement during the entire period in which the contract is being fulfilled.

Non-application of section

(10) This section does not apply with respect to a project agreement made under section 163.1.

Commencement

9.  This Act comes into force on a day to be named by proclamation of the Lieutenant Governor.

Short title

10.  The short title of this Act is the Labour Relations Amendment Act (Construction Industry), 2000.