Protecting Air Service Act (S.C. 2012, c. 2)

Assented to 2012-03-15

Protecting Air Service Act

S.C. 2012, c. 2

Assented to 2012-03-15

An Act to provide for the continuation and resumption of air service operations

SUMMARY

This enactment provides for the continuation and resumption of air service operations and imposes a final arbitration selection process to resolve matters remaining in dispute between the parties.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Protecting Air Service Act.

INTERPRETATION

Marginal note:Definitions
  •  (1) The following definitions apply in this Act.

    “employer”

    « employeur »

    “employer” means Air Canada.

    “Minister”

    « ministre »

    “Minister” means the Minister of Labour.

  • Marginal note:Words and expressions

    (2) Unless otherwise provided, words and expressions used in this Act have the same meaning as in Part I of the Canada Labour Code.

PART 1TECHNICAL, MAINTENANCE AND OPERATIONAL SUPPORT EMPLOYEES

Interpretation

Marginal note:Definitions

 The following definitions apply in this Part.

“arbitrator”

« arbitre »

“arbitrator” means the arbitrator appointed under section 11.

“collective agreement”

« convention collective »

“collective agreement” means the collective agreement between the employer and the union that expired on March 31, 2011.

“employee”

« employé »

“employee” means a person who is employed by the employer and bound by the collective agreement.

“union”

« syndicat »

“union” means the International Association of Machinists and Aerospace Workers.

Air Service Operations

Marginal note:Suspension of right to declare strike or lockout

 If, 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.

Marginal note:Application of sections 6 to 8

 Sections 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.

Marginal note:Continuation or resumption of air service operations

 On the coming into force of this Act,

  • (a) the employer must continue, or resume without delay, as the case may be, air service operations; and

  • (b) every employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.

Marginal note:Prohibitions

 It is prohibited for the employer and for any officer or representative of the employer to

  • (a) in any manner impede any employee from complying with paragraph 6(b); or

  • (b) discharge 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.

Marginal note:Obligations

 The union and each officer and representative of the union must

  • (a) without 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;

  • (b) take all reasonable steps to ensure that employees comply with paragraph 6(b); and

  • (c) refrain from any conduct that may encourage employees not to comply with paragraph 6(b).

Extension of Collective Agreement

Marginal note:Extension
  •  (1) The 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.

  • Marginal note:Collective agreement binding for extended term

    (2) Despite 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.

Marginal note:Strikes and lockouts prohibited

 Until the day on which the collective agreement, as extended by subsection 9(1), expires, it is prohibited

  • (a) for the employer and for any officer or representative of the employer to declare or cause a lockout against the union;

  • (b) for the union and for any officer or representative of the union to declare or authorize a strike against the employer; and

  • (c) for an employee to participate in a strike against the employer.

Final Offer Selection

Marginal note:Appointment of arbitrator

 The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.

Marginal note:Powers and duties

 The 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.

Marginal note:Obligation to provide final offer
  •  (1) Within the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitrator

    • (a) a 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;

    • (b) a list of the matters remaining in dispute on that date; and

    • (c) a final offer in respect of the matters referred to in paragraph (b).

  • Marginal note:Contractual language

    (2) The final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.

Marginal note:Arbitrator’s duties
  •  (1) Subject to section 16, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator must

    • (a) determine 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);

    • (b) determine the matters remaining in dispute on that date;

    • (c) 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; and

    • (d) make 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.

  • Marginal note:Guiding principle

    (2) In 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 ensure

    • (a) the short-and long-term economic viability and competitiveness of the employer; and

    • (b) the sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.

  • Marginal note:If no final offer submitted

    (3) If 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.

  • Marginal note:Contractual language

    (4) The 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.

Marginal note:Proceedings prohibited

 No order is to be made, no process is to be entered into and no proceeding is to be taken in court

  • (a) to question the appointment of the arbitrator; or

  • (b) to review, prohibit or restrain any proceeding or decision of the arbitrator.

Marginal note:New collective agreement not precluded

 Nothing 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

Marginal note:New collective agreement
  •  (1) Despite 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.

  • Marginal note:Coming into effect of provisions

    (2) The 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.

  • Marginal note:Amendments

    (3) Nothing 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.

PART 2PILOTS

Interpretation

Marginal note:Definitions

 The following definitions apply in this Part.

“arbitrator”

« arbitre »

“arbitrator” means the arbitrator appointed under section 26.

“collective agreement”

« convention collective »

“collective agreement” means the collective agreement between the employer and the union that expired on March 31, 2011.

“employee”

« employé »

“employee” means a person who is employed by the employer and bound by the collective agreement.

“union”

« syndicat »

“union” means the Air Canada Pilots Association.

Air Service Operations

Marginal note:Suspension of right to declare strike or lockout

 If, 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.

Marginal note:Application of sections 21 to 23

 Sections 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.

Marginal note:Continuation or resumption of air service operations

 On the coming into force of this Act,

  • (a) the employer must continue, or resume without delay, as the case may be, air service operations; and

  • (b) every employee must, when so required, continue, or resume without delay, as the case may be, the duties of their employment.

Marginal note:Prohibitions

 It is prohibited for the employer and for any officer or representative of the employer to

  • (a) in any manner impede any employee from complying with paragraph 21(b); or

  • (b) discharge 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.

Marginal note:Obligations

 The union and each officer and representative of the union must

  • (a) without 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;

  • (b) take all reasonable steps to ensure that employees comply with paragraph 21(b); and

  • (c) refrain from any conduct that may encourage employees not to comply with paragraph 21(b).

Extension of Collective Agreement

Marginal note:Extension
  •  (1) The 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.

  • Marginal note:Collective agreement binding for extended term

    (2) Despite 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.

Marginal note:Strikes and lockouts prohibited

 Until the day on which the collective agreement, as extended by subsection 24(1), expires, it is prohibited

  • (a) for the employer and for any officer or representative of the employer to declare or cause a lockout against the union;

  • (b) for the union and for any officer or representative of the union to declare or authorize a strike against the employer; and

  • (c) for an employee to participate in a strike against the employer.

Final Offer Selection

Marginal note:Appointment of arbitrator

 The Minister must appoint as arbitrator for final offer selection a person that the Minister considers appropriate.

Marginal note:Powers and duties

 The 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.

Marginal note:Obligation to provide final offer
  •  (1) Within the time and in the manner that the arbitrator may specify, the employer and the union must each submit to the arbitrator

    • (a) a 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;

    • (b) a list of the matters remaining in dispute on that date; and

    • (c) a final offer in respect of the matters referred to in paragraph (b).

  • Marginal note:Contractual language

    (2) The final offer must be submitted with proposed contractual language that can be incorporated into the new collective agreement.

Marginal note:Arbitrator’s duties
  •  (1) Subject to section 31, within 90 days after being appointed, or within any longer period that may be specified by the Minister, the arbitrator must

    • (a) determine 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);

    • (b) determine the matters remaining in dispute on that date;

    • (c) 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; and

    • (d) make 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.

  • Marginal note:Guiding principle

    (2) In 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 ensure

    • (a) the short-and long-term economic viability and competitiveness of the employer; and

    • (b) the sustainability of the employer’s pension plan, taking into account any short-term funding pressures on the employer.

  • Marginal note:If no final offer submitted

    (3) If 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.

  • Marginal note:Contractual language

    (4) The 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.

Marginal note:Proceedings prohibited

 No order is to be made, no process is to be entered into and no proceeding is to be taken in court

  • (a) to question the appointment of the arbitrator; or

  • (b) to review, prohibit or restrain any proceeding or decision of the arbitrator.

Marginal note:New collective agreement not precluded

 Nothing 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

Marginal note:New collective agreement
  •  (1) Despite 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.

  • Marginal note:Coming into effect of provisions

    (2) The 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.

  • Marginal note:Amendments

    (3) Nothing 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.

PART 3GENERAL

Costs

Marginal note:Costs

 All 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

Marginal note:Individuals
  •  (1) An 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 of

    • (a) not 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; or

    • (b) not more than $1,000 in any other case.

  • Marginal note:Employer or union

    (2) If 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.

Marginal note:No imprisonment

 Despite 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.

Marginal note:Recovery of fines

 If 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.

Marginal note:Presumption

 For 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

Marginal note:Coming into force

 This Act comes into force on the expiry of the twenty-fourth hour after the time at which it is assented to.