Toronto Transit Commission Labour Disputes Resolution Act, 2011, S.O. 2011, c. 2 - Bill 150
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chapter 2
An Act to provide for the resolution of labour disputes involving the Toronto Transit Commission
Assented to March 30, 2011
CONTENTS
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Preamble |
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1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. |
Definitions Application Notice of no collective agreement Arbitration Appointment of arbitrator Selection of method Procedure Notice of agreement to recommence Powers Duty of arbitrator Remuneration and expenses Delegation Continued negotiation Arbitrator’s award, retroactive terms Strikes and lock-outs prohibited Working conditions may not be altered Offences Mailed notice Filing of awards Transition Regulations Review Commencement Short title |
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Preamble
The Toronto Transit Commission, or TTC, is responsible for providing public transit in the City of Toronto. Under the City of Toronto Act, 2006, the TTC is the sole operator, with certain defined exceptions, of a local public passenger transportation system within the City of Toronto. The TTC carries hundreds of millions of passengers each year.
The TTC engages in collective bargaining with multiple bargaining agents to establish terms and conditions of employment. Work stoppages involving these parties and the resulting disruption of transit services give rise to serious public health and safety, environmental, and economic concerns.
Having regard to these serious concerns, legislation ending or preventing TTC work stoppages was enacted five times between 1974 and 2008.
The public interest requires that a dispute resolution mechanism be introduced that encourages and respects the process of collective bargaining and ensures access to fair and neutral arbitration to resolve impasses between the TTC and its bargaining agents.
Therefore, Her Majesty, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows:
Definitions
1. (1) In this Act,
“bargaining agent” means a trade union that has been certified or voluntarily recognized under the Labour Relations Act, 1995 to represent a bargaining unit of employees of the employer; (“agent négociateur”)
“employee” means an employee of the employer; (“employé ”)
“employer” means the Toronto Transit Commission; (“employeur”)
“party” means the employer, on the one hand, or a bargaining agent for a bargaining unit of employees, on the other hand, and “parties” means the two of them. (“partie”, “parties”)
Same
(2) Unless the contrary intention appears, expressions used in this Act have the same meaning as in the Labour Relations Act, 1995.
Application
2. (1) This Act applies to,
(a) the employer;
(b) bargaining agents who represent a bargaining unit of employees; and
(c) employees who are represented by a bargaining agent.
Application of Labour Relations Act, 1995
(2) Except as modified by this Act, the Labour Relations Act, 1995 applies to the employer, the employees and the bargaining agents who represent the employees.
Notice of no collective agreement
3. If a conciliation officer appointed under section 18 of the Labour Relations Act, 1995 is unable to effect a collective agreement within the time allowed under section 20 of that Act, the Minister shall forthwith by notice in writing inform each of the parties that the conciliation officer has been unable to effect a collective agreement and sections 19 and 21 of that Act shall not apply.
Arbitration
4. Where the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the matters remaining in dispute between the parties shall be decided by arbitration in accordance with this Act.
Appointment of arbitrator
5. (1) Within seven days after the day on which the Minister has informed the parties that the conciliation officer has been unable to effect a collective agreement, the parties shall appoint a person as arbitrator and forthwith notify the Minister of the name and address of the person appointed.
Extension of time
(2) The parties by a mutual agreement in writing may extend the period of seven days mentioned in subsection (1) for one further period of seven days.
Notice to Minister
(3) If the parties extend the period under subsection (2), they shall inform the Minister.
Appointment by Minister
(4) If the parties fail to notify the Minister within the time set out in subsection (1) or the time extended under subsection (2), the Minister shall forthwith appoint as arbitrator a person who is, in the opinion of the Minister, qualified to act and notify the parties of the name and address of the person appointed.
Replacement
(5) If the person appointed as arbitrator is unable or unwilling to perform his or her duties so as to make an award, the Minister shall forthwith appoint another person as arbitrator and the arbitration process shall begin anew.
Restriction
(6) No person shall be appointed as an arbitrator under this Act who has any pecuniary interest in the matters coming before him or her or who is acting or has, within a period of six months preceding the date of his or her appointment, acted as solicitor, counsel or agent of either of the parties.
Not subject to judicial review
(7) It is conclusively determined that the appointment of an arbitrator made under this section is properly made, and no application shall be made to question the appointment or to prohibit or restrain any of the arbitrator’s proceedings.
Selection of method
6. (1) If the arbitrator is appointed by the parties, the parties shall select the method of arbitration.
Failure to select
(2) The method of arbitration shall be mediation-arbitration unless the parties select a different method of arbitration.
Selection by Minister
(3) If the arbitrator is appointed by the Minister, the Minister shall select the method of arbitration.
Same, mediation-arbitration
(4) The Minister shall select mediation-arbitration as the method of arbitration unless the Minister is of the view that another method is more appropriate.
Same, final offer selection
(5) The Minister shall not select final offer selection without mediation as the method of arbitration.
Same, mediation-final offer selection
(6) The Minister shall not select mediation-final offer selection as the method of arbitration unless the Minister, in his or her sole discretion, selects that method because he or she is of the view that it is the most appropriate method having regard to the nature of the dispute.
Procedure
Time and place of proceedings
7. (1) Subject to subsection (2), the arbitrator shall fix the time and place of the proceedings and shall notify the Minister of the time and place and the Minister shall notify the parties.
When proceedings commence
(2) The arbitrator shall begin the proceedings within 30 days after he or she is appointed.
Order to expedite proceedings
(3) Where an arbitrator has been appointed, the arbitrator shall keep the Minister advised of the progress of the arbitration and where the Minister is advised that an award has not been rendered within the time set out in subsection 10 (6) or within the time extended under subsection 10 (7), the Minister may, after consulting the parties and the arbitrator, issue whatever order he or she considers necessary in the circumstances to ensure that an award will be rendered within a reasonable time.
Time for submission of information
(4) If the method of arbitration is mediation-arbitration or mediation-final offer selection, the arbitrator may, after consulting with the parties, set a date after which a party may not submit information to the arbitrator unless,
(a) the information was not available prior to the date;
(b) the arbitrator permits the submission of the information; and
(c) the other party is given an opportunity to make submissions concerning the information.
Procedure
(5) Subject to the section 6 and the other provisions of this section, the arbitrator shall determine his or her own procedure but shall give full opportunity to the parties to present their evidence and make their submissions.
Notice of agreement to recommence
8. (1) If the arbitrator was appointed by the Minister, the parties may, at any time before the arbitrator renders an award, jointly serve written notice on the Minister that they have agreed that the arbitration should be recommenced before a different arbitrator.
Termination of appointment
(2) If notice is served on the Minister under subsection (1), the appointment of the arbitrator is terminated.
Effective date of termination
(3) The termination is effective on the day the Minister is served with the notice.
Obligation to appoint
(4) Within seven days after the day the Minister is served with the notice, the parties shall jointly appoint, under subsection 5 (1), a person who agreed to act and sections 5 to 7 and this section apply with respect to the appointment.
Powers
9. An arbitrator appointed under this Act has all the powers of a board of arbitration under the Labour Relations Act, 1995.
Duty of arbitrator
10. (1) The arbitrator shall examine into and decide on matters that are in dispute and any other matters that appear to him or her necessary to be decided in order to conclude a collective agreement between the parties, but the arbitrator shall not decide any matters that come within the jurisdiction of the Board.
Criteria
(2) In making an award, the arbitrator shall take into consideration all factors it considers relevant, including the following criteria:
1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the decision or award, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and the City of Toronto.
4. A comparison, as between the employees and other comparable employees in the public and private sectors, of the terms and conditions of employment and the nature of the work performed.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997.
Arbitrator to remain seized of matters
(3) The arbitrator shall remain seized of and may deal with all matters in dispute between the parties until a collective agreement is in effect between the parties.
Procedure
(4) The Arbitration Act, 1991 does not apply to arbitrations under this Act.
Same
(5) The Statutory Powers Procedure Act does not apply to proceedings before an arbitrator under this Act.
Time for decision
(6) The arbitrator shall give an award within 90 days after he or she is appointed.
Extension
(7) The parties may agree to extend the time described in subsection (6), either before or after the time has passed.
Remuneration and expenses
11. Each party shall pay one-half of the arbitrator’s remuneration and expenses.
Delegation
12. (1) The Minister may delegate in writing to any person the Minister’s power to make an appointment, order or direction under this Act.
Proof of appointment
(2) An appointment, an order or a direction made under this Act that purports to be signed by or on behalf of the Minister shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in it without proof of the signature or the position of the person appearing to have signed it.
Continued negotiation
13. (1) Until an award is made, nothing in this Act prohibits the parties from continuing to negotiate with a view to making a new collective agreement and they are encouraged to do so.
New collective agreement concluded by parties
(2) If the parties execute a new collective agreement before an award is made and notify the arbitrator of the fact, the proceedings under this Act are terminated.
Arbitrator’s award
(3) Where, during the bargaining under this Act or during the proceedings before the arbitrator, the parties have agreed on some matters to be included in the collective agreement and have notified the arbitrator in writing of the matters agreed on, the matters to be decided by the arbitrator shall be confined to the matters not agreed on by the parties and to such other matters that appear to the arbitrator necessary to be decided to conclude a collective agreement between the parties.
Same
(4) Where the parties have not notified the arbitrator in writing that, during the bargaining under this Act or during the proceedings before the arbitrator, they have agreed on some matters to be included in the collective agreement, the arbitrator shall decide all matters in dispute and such other matters that appear to him or her necessary to be decided to conclude a collective agreement between the parties.
Execution of agreement
(5) Within five days of the date of the award of the arbitrator or such longer period as may be agreed on in writing by the parties, the parties shall prepare and execute a document giving effect to the award of the arbitrator and any agreement of the parties, and the document constitutes a collective agreement.
Preparation of agreement by arbitrator
(6) If the parties fail to prepare and execute a document in the form of a collective agreement giving effect to the award of the arbitrator and any agreement of the parties within the period mentioned in subsection (5), the parties or either of them shall notify the arbitrator in writing forthwith, and the arbitrator shall prepare a document in the form of a collective agreement giving effect to the award of the arbitrator and any agreement of the parties and submit the document to the parties for execution.
Failure to execute agreement
(7) If the parties or either of them fail to execute the document prepared by the arbitrator within a period of five days from the day of its submission by the arbitrator to them, the document shall come into effect as though it had been executed by the parties and the document constitutes a collective agreement under the Labour Relations Act, 1995.
Arbitrator’s award, retroactive terms
14. Despite section 16, in making his or her award, the arbitrator may provide,
(a) where notice was given under section 16 of the Labour Relations Act, 1995, that one or more terms of the collective agreement shall be retroactive to a day or days after the day on which the notice was given; or
(b) where notice was given under section 59 of the Labour Relations Act, 1995, that one or more terms of the collective agreement shall be retroactive to a day or days after the day on which the previous agreement expired.
Strikes and lock-outs prohibited
15. (1) Despite anything in the Labour Relations Act, 1995, employees to whom this Act applies shall not strike and the employer shall not lock them out.
Application of Labour Relations Act, 1995
(2) Sections 81 and 82, subsection 83 (1) and sections 84, 100, 101 and 103 of the Labour Relations Act, 1995 apply with necessary modifications under this Act as if such sections were enacted in and form part of this Act.
Working conditions may not be altered
16. Despite subsection 86 (1) of the Labour Relations Act, 1995, if notice has been given under section 16 or 59 of that Act and no collective agreement is in operation,
(a) the employer shall not, except with the consent of the bargaining agent, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees unless the right of the bargaining agent to represent the employees has been terminated; and
(b) the bargaining agent shall not, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the bargaining agent or the employees.
Offences
17. Except where inconsistent with this Act, sections 104, 105, 106, 107 and 109 of the Labour Relations Act, 1995 apply with necessary modifications under this Act as if such sections were enacted in and form part of this Act.
Mailed notice
18. A notice by the Minister under section 3 that a conciliation officer has been unable to effect a collective agreement if sent by mail to a party addressed to the party at its last known address shall be deemed to have been received on the second day after the day on which the notice was so mailed.
Filing of awards
19. Every arbitrator shall file a copy of every award with the Minister.
Transition
20. (1) If a notice is given to the parties under clause 21 (b) of the Labour Relations Act, 1995 before this Act comes into force,
(a) the notice shall be treated as if it had not been given; and
(b) the Minister shall appoint a conciliation officer under section 18 of the Labour Relations Act, 1995 to confer with the parties and endeavour to effect a collective agreement.
Same
(2) Clause (1) (b) applies even though the Minister has previously appointed a conciliation officer in respect of the same dispute.
Regulations
21. (1) The Minister may make regulations,
(a) providing for and regulating the engagement of experts, investigators and other assistants by arbitrators;
(b) providing for and fixing the remuneration and expenses of arbitrators;
(c) prescribing rules of practice and procedure;
(d) prescribing forms and providing for their use;
(e) addressing any issue related to the application of any provision of the Labour Relations Act, 1995 that arises as a result of,
(i) a collective agreement being executed within 90 days of its expiry, or
(ii) a collective agreement being executed after the period during which that agreement applies has expired;
(f) respecting any matter necessary or advisable to carry out effectively the intent and purpose of this Act.
Same, clause (1) (e)
(2) Without limiting the generality of clause (1) (e), a regulation made under that clause may modify the application of a provision of the Labour Relations Act, 1995 in order to achieve the objectives of the provision.
Same, clause (1) (e)
(3) A regulation made under clause (1) (e) may be made retroactive to a date that is not earlier than the date on which this subsection comes into force.
Review
22. Within one year following the fifth anniversary of the coming into force of this Act, the Minister shall initiate a review of the operation of this Act and shall require a report on the results of the review to be provided to the Minister.
Commencement
23. This Act comes into force on the day it receives Royal Assent.
Short title
24. The short title of this Act is the Toronto Transit Commission Labour Disputes Resolution Act, 2011.