MANOMETRÍA ANORRECTAL

Four models or approaches to FCA have developed in Canadian labour legislation: the “fault”, “no fault”, “automatic access” and “mediation-intensive” models. The key features of each are set out below. Although it differs among jurisdictions, some features are typically found: work stoppages must cease upon FCA application, conciliation must be exhausted, and arbitrators must accept provisions parties agree upon.

The “fault” model of FCA requires that the applicant demonstrate that the other party has engaged in bad faith bargaining, or that there has been an irreparable breakdown in negotiations. Thus, FCA is treated as form of remedial award. This model was in use in BC between 1973 and 1992; Manitoba from 1982 to 1984; Newfoundland and Labrador from 1985 to 2011, and has been in use in the federal jurisdiction and Quebec since 1978. The second characteristic of the fault model is a “double screen” mechanism: the Minister of Labour decides whether to refer applications to the labour board, which then decides whether to order arbitration. In Quebec the Minister performs both roles. The Federal jurisdiction and Quebec (and until recently Newfoundland) apply the legislation more liberally than originally conceived, such that they are not true “bad faith” or “fault” approaches and, in effect, approach the “no fault” model discussed below (O'Brien, 2001; Slinn and Hurd, 2011).

Under the “no fault” approach the labour board decides whether to order FCA. There is no ministerial screening process and neither bad faith bargaining, nor

bargaining impasse, are necessarily required. In the other provinces (Ontario between 1986 and 1992, and 1995 to present; Saskatchewan since 1994; and, Nova Scotia since in 2013), the board must find that negotiations have not succeeded, and that one or more statutory conditions are met. This model is applied differently among the provinces that use it. Saskatchewan’s approach requires bargaining to have failed to conclude an agreement, and that at least one of the following circumstances exists: a successful strike vote, a lockout declaration, the board has found bad faith bargaining, or 90 or more days have elapsed since certification. The board may direct parties to conciliation if they have not already exhausted that process. Arguably, the 2005 addition of the 90 day time limit makes this into a hybrid automatic access – no fault system.

Ontario’s approach, applied between 1986 and 1992, and 1995 to present, has the OLRB apply a two-step test to determine whether to direct arbitration. First, the applicant must prove bargaining was “unsuccessful” in the totality of circumstances which may, but does not necessarily, include bad faith bargaining. Bargaining is not unsuccessful simply where the parties have failed to reach agreement. Second, this must be attributable to one or more of the reasons set out in the statute: the employer’s refusal to recognize the union’s bargaining authority; the uncompromising nature of any bargaining position adopted by the respondent without reasonable justification; the respondent’s failure to make reasonable or expeditious efforts to conclude a collective agreement; or any other reason the OLRB considers relevant. Where this test is satisfied, the OLRB has no discretion to decline to direct arbitration. The OLRB must decide within 30 days of receiving the application. The Nova Scotia FCA provision is similar to Ontario’s except that, unless parties agree to arbitration, the board may either direct arbitration or direct parties to resume negotiations.

The “automatic access” model has two preconditions to first contract arbitration: that sufficient time has elapsed since certification and that the conciliation mechanism has been exhausted. There is no screening process, and no finding of bargaining breakdown or fault is required. Where parties fail to agree on an arbitrator, the labour board may require the parties to continue negotiating, possibly with a conciliator. However a first contract will be imposed if negotiations fail. Manitoba has employed automatic access FCA since 1985. Two other provinces briefly experimented with this

model: Ontario from 1993 to 1995, and Nova Scotia from 2011-2013.

In 1993, BC adopted a “mediation-intensive” approach, which regards FCA as part of the collective bargaining process and not as a remedy (Yarrow Lodge, 1993, p. 29-30). An application can be made once parties have bargained and a successful strike vote has been held. Parties must provide a list of disputed issues and their positions. Upon application a mediator is appointed. If mediation-assisted bargaining does not succeed after 20 days, the mediator reports to the BCLRB, recommending either first contract terms for parties’ consideration, or a settlement process, including one or more of: mediation-arbitration, arbitration by an arbitrator or the BCLRB, or, permitting parties to engage in a work stoppage. The BCLRB set out a detailed policy for applying this provision in an early decision in which it emphasized that the mediator’s role is to “facilitate and encourage the process of collective bargaining and to educate the parties in the practices and procedures of collective bargaining” and that if a first contract is to be imposed that it should happen before the relationship is irreparably damaged (Yarrow Lodge, 1993, 30). BC’s mediation-intensive model has attracted particular interest from researchers, as discussed below (O'Brien, 2001; Vipond, 2011; Dobbelaere and Luttens, 2013).

In 2012 Newfoundland and Labrador adopted a FCA process similar to BC’s “mediation intensive” model. Upon application, the Minister of Labour appoints a “first collective agreement mediator” to assist the parties. If the parties fail to settle after 30 days of mediation or after conciliation is exhausted, then a party may apply to the labour board, which decides whether it is “advisable” to set the first contract terms.