C-3314160-61Elizabeth II2011-2012An Act to provide for the continuation and resumption of air service operationsProtecting Air Service ActProtecting Air Service20196
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P-25.62201290651Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:Short Title
Short titleThis Act may be cited as the Protecting Air Service Act.
Interpretation
DefinitionsThe following definitions apply in this Act.employer means Air Canada. (employeur)Minister means the Minister of Labour. (ministre)Words and expressionsUnless otherwise provided, words and expressions used in this Act have the same meaning as in Part I of the Canada Labour Code.
Technical, Maintenance and Operational Support EmployeesInterpretation
DefinitionsThe following definitions apply in this Part.arbitrator means the arbitrator appointed under section 11. (arbitre)collective agreement means the collective agreement between the employer and the union that expired on March 31, 2011. (convention collective)employee means a person who is employed by the employer and bound by the collective agreement. (employé)union means the International Association of Machinists and Aerospace Workers. (syndicat)
Air Service Operations
Suspension of right to declare strike or lockoutIf, before the coming into force of this Act, the employer has not declared or caused a lockout and the union has not declared or authorized a strike, on the coming into force of this Act the employer’s right to declare or cause a lockout and the union’s right to declare or authorize a strike are suspended until the day on which the collective agreement, as extended by subsection 9(1), expires.
Application of sections 6 to 8Sections 6 to 8 apply if, before the coming into force of this Act, the employer has declared or caused a lockout or the union has declared or authorized a strike.
Continuation or resumption of air service operationsOn the coming into force of this Act,the employer must continue, or resume without delay, as the case may be, air service operations; andevery employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.
ProhibitionsIt is prohibited for the employer and for any officer or representative of the employer toin any manner impede any employee from complying with paragraph 6(b); ordischarge or in any other manner discipline, or authorize or direct the discharge or discipline of, any employee by reason of the employee having been on strike before the coming into force of this Act.
ObligationsThe union and each officer and representative of the union mustwithout delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, air service operations are to be continued or resumed, as the case may be, and that the employees, when so required, are to continue, or resume without delay, as the case may be, the duties of their employment;take all reasonable steps to ensure that employees comply with paragraph 6(b); andrefrain from any conduct that may encourage employees not to comply with paragraph 6(b).
Extension of Collective Agreement
ExtensionThe term of the collective agreement is extended to include the period beginning on April 1, 2011 and ending on the day on which a new collective agreement between the employer and the union comes into effect.Collective agreement binding for extended termDespite anything in the collective agreement or in Part I of the Canada Labour Code, the collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is extended. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement.
Strikes and lockouts prohibitedUntil the day on which the collective agreement, as extended by subsection 9(1), expires, it is prohibitedfor the employer and for any officer or representative of the employer to declare or cause a lockout against the union;for the union and for any officer or representative of the union to declare or authorize a strike against the employer; andfor an employee to participate in a strike against the employer.
Final Offer Selection
Appointment of arbitratorThe Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.
Powers and dutiesThe arbitrator has, with any modifications that the circumstances require, all the powers and duties of an arbitrator under paragraphs 60(1)(a) and (a.2) to (a.4) and section 61 of the Canada Labour Code.
Obligation to provide final offerWithin the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitratora list of the matters on which the employer and the union were in agreement as of a date specified by the arbitrator and proposed contractual language that would give effect to those matters;a list of the matters remaining in dispute on that date; anda final offer in respect of the matters referred to in paragraph (b).Contractual languageThe final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.
Arbitrator’s dutiesSubject to section 16, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator mustdetermine the matters on which the employer and the union were in agreement as of the date specified for the purposes of paragraph 13(1)(a);determine the matters remaining in dispute on that date;select, in order to resolve the matters remaining in dispute, either the final offer submitted by the employer or the final offer submitted by the union; andmake a decision in respect of the resolution of the matters referred to in this subsection and forward a copy of the decision to the Minister, the employer and the union.Guiding principleIn making the selection of a final offer, the arbitrator is to take into account the tentative agreement reached by the employer and the union on February 10, 2012 and the report of the conciliation commissioner dated February 22, 2012 that was released to the parties, and is to be guided by the need for terms and conditions of employment that are consistent with those in other airlines and that will provide the necessary degree of flexibility to ensurethe short-and long-term economic viability and competitiveness of the employer; andthe sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.If no final offer submittedIf either the employer or the union fails to provide the arbitrator with a final offer in accordance with paragraph 13(1)(c), the arbitrator must select the final offer provided by the other party.Contractual languageThe arbitrator’s decision must be drafted in a manner that constitutes a new collective agreement between the employer and the union and, to the extent that it is possible, incorporate the contractual language that is referred to in paragraph 13(1)(a) and that is in the final offer selected by the arbitrator.
Proceedings prohibitedNo order is to be made, no process is to be entered into and no proceeding is to be taken in courtto question the appointment of the arbitrator; orto review, prohibit or restrain any proceeding or decision of the arbitrator.
New collective agreement not precludedNothing in this Part precludes the employer and the union from entering into a new collective agreement at any time before the arbitrator makes a decision and, if they do so, the arbitrator’s duties under this Part cease as of the day on which the new collective agreement is entered into.
New Collective Agreement
New collective agreementDespite anything in Part I of the Canada Labour Code, the arbitrator’s decision constitutes a new collective agreement between the employer and the union that is effective and binding on the parties beginning on the day on which it is made. However, that Part applies in respect of the new collective agreement as if it had been entered into under that Part.Coming into effect of provisionsThe new collective agreement may provide that any of its provisions are effective and binding on a day that is before or after the day on which the new collective agreement becomes effective and binding.AmendmentsNothing in this Part is to be construed so as to limit or restrict the rights of the parties to agree to amend any provision of the new collective agreement, other than a provision relating to its term, and to give effect to the amendment.
PilotsInterpretation
DefinitionsThe following definitions apply in this Part.arbitrator means the arbitrator appointed under section 26. (arbitre)collective agreement means the collective agreement between the employer and the union that expired on March 31, 2011. (convention collective)employee means a person who is employed by the employer and bound by the collective agreement. (employé)union means the Air Canada Pilots Association. (syndicat)
Air Service Operations
Suspension of right to declare strike or lockoutIf, before the coming into force of this Act, the employer has not declared or caused a lockout and the union has not declared or authorized a strike, on the coming into force of this Act the employer’s right to declare or cause a lockout and the union’s right to declare or authorize a strike are suspended until the day on which the collective agreement, as extended by subsection 24(1), expires.
Application of sections 21 to 23Sections 21 to 23 apply if, before the coming into force of this Act, the employer has declared or caused a lockout or the union has declared or authorized a strike.
Continuation or resumption of air service operationsOn the coming into force of this Act,the employer must continue, or resume without delay, as the case may be, air service operations; andevery employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.
ProhibitionsIt is prohibited for the employer and for any officer or representative of the employer toin any manner impede any employee from complying with paragraph 21(b); ordischarge or in any other manner discipline, or authorize or direct the discharge or discipline of, any employee by reason of the employee having been on strike before the coming into force of this Act.
ObligationsThe union and each officer and representative of the union mustwithout delay on the coming into force of this Act, give notice to the employees that, by reason of that coming into force, air service operations are to be continued or resumed, as the case may be, and that the employees, when so required, are to continue, or resume without delay, as the case may be, the duties of their employment;take all reasonable steps to ensure that employees comply with paragraph 21(b); andrefrain from any conduct that may encourage employees not to comply with paragraph 21(b).
Extension of Collective Agreement
ExtensionThe term of the collective agreement is extended to include the period beginning on April 1, 2011 and ending on the day on which a new collective agreement between the employer and the union comes into effect.Collective agreement binding for extended termDespite anything in the collective agreement or in Part I of the Canada Labour Code, the collective agreement, as extended by subsection (1), is effective and binding on the parties to it for the period for which it is extended. However, that Part applies in respect of the collective agreement, as extended, as if that period were the term of the collective agreement.
Strikes and lockouts prohibitedUntil the day on which the collective agreement, as extended by subsection 24(1), expires, it is prohibitedfor the employer and for any officer or representative of the employer to declare or cause a lockout against the union;for the union and for any officer or representative of the union to declare or authorize a strike against the employer; andfor an employee to participate in a strike against the employer.
Final Offer Selection
Appointment of arbitratorThe Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.
Powers and dutiesThe arbitrator has, with any modifications that the circumstances require, all the powers and duties of an arbitrator under paragraphs 60(1)(a) and (a.2) to (a.4) and section 61 of the Canada Labour Code.
Obligation to provide final offerWithin the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitratora list of the matters on which the employer and the union were in agreement as of a date specified by the arbitrator and proposed contractual language that would give effect to those matters;a list of the matters remaining in dispute on that date; anda final offer in respect of the matters referred to in paragraph (b).Contractual languageThe final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.
Arbitrator’s dutiesSubject to section 31, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator mustdetermine the matters on which the employer and the union were in agreement as of the date specified for the purposes of paragraph 28(1)(a);determine the matters remaining in dispute on that date;select, in order to resolve the matters remaining in dispute, either the final offer submitted by the employer or the final offer submitted by the union; andmake a decision in respect of the resolution of the matters referred to in this subsection and forward a copy of the decision to the Minister, the employer and the union.Guiding principleIn making the selection of a final offer, the arbitrator is to be guided by the need for terms and conditions of employment that are consistent with those in other airlines and that will provide the necessary degree of flexibility to ensurethe short-and long-term economic viability and competitiveness of the employer; andthe sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.If no final offer submittedIf either the employer or the union fails to provide the arbitrator with a final offer in accordance with paragraph 28(1)(c), the arbitrator must select the final offer provided by the other party.Contractual languageThe arbitrator’s decision must be drafted in a manner that constitutes a new collective agreement between the employer and the union and, to the extent that it is possible, incorporate the contractual language that is referred to in paragraph 28(1)(a) and that is in the final offer selected by the arbitrator.
Proceedings prohibitedNo order is to be made, no process is to be entered into and no proceeding is to be taken in courtto question the appointment of the arbitrator; orto review, prohibit or restrain any proceeding or decision of the arbitrator.
New collective agreement not precludedNothing in this Part precludes the employer and the union from entering into a new collective agreement at any time before the arbitrator makes a decision and, if they do so, the arbitrator’s duties under this Part cease as of the day on which the new collective agreement is entered into.
New Collective Agreement
New collective agreementDespite anything in Part I of the Canada Labour Code, the arbitrator’s decision constitutes a new collective agreement between the employer and the union that is effective and binding on the parties beginning on the day on which it is made. However, that Part applies in respect of the new collective agreement as if it had been entered into under that Part.Coming into effect of provisionsThe new collective agreement may provide that any of its provisions are effective and binding on a day that is before or after the day on which the new collective agreement becomes effective and binding.AmendmentsNothing in this Part is to be construed so as to limit or restrict the rights of the parties to agree to amend any provision of the new collective agreement, other than a provision relating to its term, and to give effect to the amendment.
GeneralCosts
CostsAll costs incurred by Her Majesty in right of Canada relating to the appointment of an arbitrator and the performance of an arbitrator’s duties under this Act are debts due to Her Majesty in right of Canada and may be recovered as such, in any court of competent jurisdiction, in equal parts from, in the case of an appointment under Part 1, the International Association of Machinists and Aerospace Workers and the employer, and in the case of an appointment under Part 2, the Air Canada Pilots Association and the employer.
Enforcement
IndividualsAn individual who contravenes any provision of this Act is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine ofnot more than $50,000 if the individual was acting in the capacity of an officer or representative of the employer, the International Association of Machinists and Aerospace Workers or the Air Canada Pilots Association when the offence was committed; ornot more than $1,000 in any other case.Employer or unionIf the employer, the International Association of Machinists and Aerospace Workers or the Air Canada Pilots Association contravenes any provision of this Act, it is guilty of an offence punishable on summary conviction and is liable, for each day or part of a day during which the offence continues, to a fine of not more than $100,000.
No imprisonmentDespite subsection 787(2) of the Criminal Code, no term of imprisonment is to be imposed in default of payment of a fine that is imposed under section 34.
Recovery of finesIf a person is convicted of an offence under section 34 and the fine that is imposed is not paid when required, the prosecutor may, by filing the conviction, enter as a judgment the amount of the fine and costs, if any, in a superior court of the province in which the trial was held, and the judgment is enforceable against the person in the same manner as if it were a judgment rendered against the person in that court in civil proceedings.
PresumptionFor the purposes of this Act, the International Association of Machinists and Aerospace Workers and the Air Canada Pilots Association are deemed to be persons.
Coming into Force
Coming into forceThis Act comes into force on the expiry of the twenty-fourth hour after the time at which it is assented to.[Note: Act in force March 16, 2012.]