1. Composition of the
Board - The issue arises whether the Board is properly constituted in
the event of expiry of a term or other vacancy in the office of
Chairperson or Board member. Currently a replacement or acting appointment
requires an Order in Council from the Provincial Cabinet. Should the Labour
Relations Act be amended to provide for acting appointments by the
Minister of Labour?
2. Interim Orders -
The Board does not have express authority to issue interim orders. This
raises a concern with respect to the effectiveness of the Board’s
authority to issue cease and desist orders in the event of a labour
dispute. There may be other cases where interim orders are appropriate.
Should the Board have express authority to issue interim orders?
3. Investigating
Officer’s Reports - These reports are often relied upon by the Board
to make decisions without a hearing. There is an issue as to the extent to
which the Board may use the report to make findings of fact after a file
is referred to a hearing. Should the legislation be amended to clarify
that the statements in the officer’s report may be relied upon to make
findings of fact in the absence of any statement to the contrary made
under oath or affirmation?
4. Chairperson or Vice
Chairperson Decisions - In all cases, except reviews of Labour
Standards decisions, the decisions by the Board are made by the full 5
person Board or a 3 person panel of the Board. Other Labour Relations
Boards in Canada allow the Chairperson or Vice-Chairperson acting alone to
make certain decisions without a 3 person panel. Such decisions could be
restricted to issues such as extensions of time for votes, certifications
where there are no issues in dispute, and issues of procedure or evidence.
Should the Chairperson or Vice Chairperson have authority to make
decisions acting alone, and, if so, what types of decisions?
5. Mandatory Board
Hearings - In most cases, a hearing is held at the discretion of the
Board. In some cases, such as first collective agreement referrals and
essential employee applications, a hearing is mandatory. Should all
hearings be at the discretion of the Board?
6. Pre-hearing
Procedures - The Board encourages the parties to either settle
disputes or to reduce the number of issues in dispute. The Board’s
officers are available to assist the parties to mediate disputes. The
Board also uses pre-hearing conferences to help define the issues and make
hearings more efficient. Should the Board take any of the following
actions:
- require the parties
to attend pre-hearing conferences with legal counsel and be prepared
to discuss settlement
- require copies of
documents to be entered at a hearing to be filed with the Board and
delivered to the other parties in advance of the hearing
- order production of
documents before the hearing in appropriate cases
- order parties to
attend a mediation
7. Deemed Withdrawal
- In some cases an application is processed by the Board but not finally
disposed of, and the parties request the Board not to take further action,
but request that the file remain active. The Board proposes that there be
a process to dispose of these files. Should files that are inactive for 6
months be deemed withdrawn, subject to giving prior notice to the parties
and an opportunity to be heard on the issue?
8. Teleconference/Video
Conference - Should Board meetings, pre-hearing conferences or
hearings be permitted to be held by teleconference or video conference?
9. Board Orders -
The parties may file Board Orders in the Supreme Court of Newfoundland and
Labrador, Trial Division. It therefore seems unnecessary that the Board
also have the power to file Orders in the Court under Section 123 (6) of
the Labour Relations Act. Should this section be removed?
10. Certification Time
Bars - Should the 6 month time bar on a subsequent certification
application by the same trade union be placed in the Labour Relations
Act and removed from the Rules of Procedure? Should the time
bar apply to any other trade union or be amended in any other way? Should
an application for certification be considered untimely if there is
another certification application currently before the Board?
11. Representation Votes
- We are one of the only jurisdictions in Canada with a requirement that
70% of the eligible voters cast a ballot for the result to be determined
by a majority of those voting. Should the 70% requirement be removed with
the effect that a majority of those voting will determine the outcome
regardless of the number of ballots cast?
12. Reconsideration of
Board Decisions - Should there be a time limit within which requests
for reconsideration are required to be made, such as 30 days from the date
of the decision?
13. Successor Rights
- There is currently no bridging provision for sale or transfer of a
business from federal to provincial jurisdiction or from the public to
private sector. Other Canadian jurisdictions have such bridging
provisions. Should there be legislative amendment to allow for such
bridging?
14. Good Faith
Representation - There is no provision in the Public Service
Collective Bargaining Act ("PSCBA") corresponding to Section
130 of the Labour Relations Act, which allows for complaints by
employees against trade unions for failing to act in good faith in the
handling of a grievance. Should employees under PSCBA have the same right?
Also, should the Board have the authority to address whether union hiring
hall rules are applied fairly and without discrimination, an authority of
the Canada Industrial Relations Board under federal jurisdiction?
15. Bargaining Unit
Reviews - Bargaining units may no longer be appropriate in the event
of corporate amalgamation or restructuring. Should the Board have express
authority to review appropriate bargaining units, including consolidation
of existing bargaining units, and authority to address any issue arising
as a result, such as amendment of collective agreements?
