Corrections Act

Interpretation

1 In this Schedule,

(a) "Act" means the Corrections Act;

(b) "adjudication" means a procedure to determine a rights dispute;

(c) "arbitration" means a procedure to determine an interest dispute;

(ca) "arbitration board" means a one-person or three-person board established pursuant to this Act for purposes of determining an interest dispute;

(d) "bargaining unit" means the bargaining unit determined pursuant to this Schedule;

(e) "Board" means the Labour Board established by the Labour Board Act;

(f) "collective agreement" means an agreement in writing between the employer and the Union entered into pursuant to this Schedule;

(g) "employee" means a person appointed pursuant to the Act and who is not excluded from collective bargaining as provided by Paragraph 6;

(h) "Employer" means Her Majesty in right of the Province through the agency of the Minister of Justice;

(i) "interest dispute" means a dispute to which Paragraphs 8 to 28 of this Schedule apply and is a dispute arising between the Employer and the employee as to the content of a collective agreement;

(j) "lockout" includes the closing of a place of employment, a suspension of work or a refusal by the Minister of Justice on behalf of the Government to continue to employ a number of its employees done to compel the employees, or to aid another employer to compel its employees, to agree to terms or conditions of employment;

(ja) "Minister" means, except where the context otherwise requires, Minister of Labour and Workforce Development;

(k) "rights dispute" means a dispute to which Paragraphs 29 to 33 apply and is a dispute arising during the life of a collective agreement respecting the application, interpretation or alleged violation of the agreement;

(l) "strike" includes a cessation of work, a refusal to work or to continue to work by employees in combination or in concert or in accordance with a common understanding for the purpose of compelling the Minister of Justice to agree to terms or conditions of employment or to aid other employees in compelling their employer to agree to terms or conditions of employment;

(m) "Union" means the union representing the employees as provided by the Act.

2 repealed 2010, c. 37, s. 49.

Orders and directives

3 (1) The Board may for the purposes of this Schedule make or issue such orders, notices, directives, declarations, or other decisions as it considers necessary with or without conditions.

Enforcement

(2) If any order, directive or decision is made by the Board pursuant to this Schedule and such order, directive or decision is not complied with, the Board may, on the request of the Union, an employee or the Employer, file a copy of the order, directive or decision with a prothonotary and upon such filing, the order, directive or decision becomes a decision of the Supreme Court and is enforceable as such.

4 repealed 2010, c. 37, s. 51.

Powers of Board

5 (1) The Board is empowered to decide for the purposes of this Schedule whether

(a) a person is an employee;

(b) the parties to a dispute have settled the terms and conditions to be included in a collective agreement;

(c) a collective agreement has been entered into;

(d) a person is bound by a collective agreement;

(e) a collective agreement is in effect;

(f) a person practices a profession as a condition of employment;

(g) there has been every reasonable effort to conclude a collective agreement;

(h) there has been a violation of Paragraph 36 or 37,

and the Board's decision is final and binding.

Membership in unit disputed

(2) If a question arises as to whether a person is or is not to be included in a bargaining unit or any other unit for collective bargaining which cannot be settled by the persons concerned, the question shall be referred to the Board and its decision is final and binding.

Restriction of term "employee"

6 Notwithstanding clause 1(g), no person is an employee for the purpose of this Schedule who is

(a) locally engaged outside the Province;

(b) employed on a casual basis for less than twelve continuous months;

(c) a manager or superintendent, or any other person who in the opinion of the Board is employed in a confidential capacity in matters relating to labour relations or who exercises management functions;

(d) a member of the medical, dental, architectural, engineering or legal profession qualified to practise under the laws of a province and employed in that capacity.

Determination of bargaining unit

7 (1) The Employer and the Union may determine by consultation which employees or classes of employees are in the bargaining unit.

Procedure

(2) Such determination shall be made by the Employer and the Union within thirty days immediately following any notice given by the Employer to the Union or the Union to the Employer for this purpose.

Dispute

(3) If the Employer and the Union are not able to agree upon the employees or classes of employees who are in the bargaining unit within thirty days from the date a notice is given pursuant to subparagraph (2), then such determination shall be made by the Board.

Collective agreement

8 The Union and the Employer may enter into negotiations to effect a collective agreement on behalf of employees in the bargaining unit.

Collective agreement binding

9 A collective agreement entered into by the Employer and the Union is, subject to and for the purposes of this Schedule, binding upon

(a) the Union and every employee represented by the Union on whose behalf the agreement has been entered into; and

(b) the Employer.

Implementation

10 The provisions of a collective agreement shall be implemented by the Union and the Employer

(a) where a period within which the collective agreement is to be implemented as specified in the collective agreement, within that period; and

(b) where no period for the implementation is so specified, within a period of ninety days from the date of its execution.

Effective date of agreement

11 (1) A collective agreement has effect in respect of the employees covered by it on and from

(a) where an effective date is specified, that day; and

(b) where no effective date is specified, the first day of the first full bi-weekly pay period next following the date on which the agreement is executed.

Term of agreement

(2) The Union and the Employer shall not enter into a collective agreement having a specified term of less than one year and shall not amend an agreement so as to produce a term of less than one year.

Deemed term

(3) Where a collective agreement contains no provision as to its term it shall be deemed to be for a term of one year from the day on and from which it has effect pursuant to subparagraph (1).

New agreement

12 Where the Employer and the Union are parties to a collective agreement, either one of them may within a period of three months next preceding the date of the expiry of the term of or preceding termination of the agreement by notice in writing require the other party to the agreement to commence collective bargaining.

Notice to commence bargaining

13 Where a notice to commence collective bargaining has been given, either under this Schedule or in accordance with a collective agreement which provides for a revision of a provision of the agreement the Employer and the Union shall, without delay, and in any case within twenty clear days after notice has been given or such further time as the parties may agree, meet and commence or cause authorized representatives on their behalf to meet and commence to bargain collectively with one another and shall make every reasonable effort to conclude and sign a collective agreement.

Conciliation officer

14 Where a notice to commence collective bargaining has been given and

(a) collective bargaining has not commenced within the time prescribed by this Schedule;

(b) collective bargaining has commenced and either party thereto requests the Minister in writing to instruct a conciliation officer to confer with the parties thereto to assist them to conclude a collective agreement or a renewal or revision thereof and the request is accompanied by a statement of the difficulties, if any, that have been encountered before the commencement or in the course of the collective bargaining; or

(c) in any other case in which in the opinion of the Minister it is advisable so to do,

the Minister may instruct a conciliation officer to confer with the Union and the Employer.

Report to Minister

15 (1) Where a conciliation officer has been instructed to confer with the Union and the Employer engaged in collective bargaining or to any dispute, the conciliation officer shall, within fourteen days after being so instructed or within any longer period that the Minister may from time to time allow, make a report to the Minister setting out

(a) the matters, if any, upon which the Union and the Employer have agreed;

(b) the matters, if any, upon which the Union and the Employer cannot agree; and

(c) any other matter that in the opinion of the conciliation officer is material or relevant or should be brought to the attention of the Minister.

Parties notified

(2) When a conciliation officer has made a report under subparagraph (1) the conciliation officer shall forthwith advise the Union and the Employer to the dispute that a report has been made.

Officer not compellable witness

16 (1) Notwithstanding any enactment or law, a conciliation officer shall not be compelled or required to give in evidence before any court, body or person having authority to receive evidence any information of any kind obtained by the conciliation officer for the purposes of this Schedule or in the course of duties of the conciliation officer under this Schedule.

[Adjudicator not compellable witness]

(2) Notwithstanding any other enactment or law, an adjudicator, mediator-adjudicator or member of an adjudication board appointed by the Minister pursuant to this Act or a collective agreement, whether selected with or without the consent of the parties involved, shall not be compelled or required to give in evidence before any court, body or person having authority to receive evidence, any information of any kind obtained by him or her for the purpose of this Act or in the course of his or her duties under this Act.

Arbitral terms and conditions

17 (1) All terms and conditions of employment except pensions are arbitral for the purpose of Paragraph 18.

Management rights

(2) Unless it is otherwise agreed in a collective agreement between the Employer and the Union, it is the exclusive function of the Employer to

(a) maintain order, discipline and efficiency;

(b) hire, discharge, direct, classify, reclassify, transfer, promote, demote, lay off, transfer and assign employees, determine the location of work and suspend or otherwise discipline an employee, provided that a claim for discriminatory promotion, demotion or transfer or a claim that an employee has been discharged, suspended, disciplined or demoted without reasonable cause may be the subject of a grievance where a collective agreement provides for a grievance procedure;

(c) without restricting the generality of the foregoing, immediately discharge an employee who is found guilty of any of the following offences:

(i) consuming intoxicating liquor during working hours, reporting for work or being at work in an intoxicated condition,

(ii) falsely and fraudulently claiming or reporting illness,

(iii) stealing, giving away or appropriating to that person's own use or that of another person, any money, supplies, materials or other property of value belonging to the Employer, whether property is of value or not is to be determined by the superintendent of the facility,

(iv) refusing to obey a legitimate order from management or, without undue provocation, is insubordinate to representatives of management,

(v) making the affairs of the facility or any occurrence therein or any matter relating to an inmate or the conduct of any employee the subject of conversation or gossip, or imparting to any person any information as to such matters except when required to do so in the discharge of that person's duty by the Employer or the superintendent of the facility,

(vi) bringing any intoxicating liquor or drug onto the facility premises or allowing the same to be brought in, except where the same is prescribed by a licensed medical practitioner for the use of the employee;

(d) manage and operate its facilities in all respects and, without restricting the generality of the foregoing, to select, control and direct the use of all materials required in the operation of the facility, to require suitable dress, to schedule the work and services to be provided and performed, to make, alter and enforce rules, regulations and standing orders governing the conduct of employees and the use of materials, equipment and services as may be deemed necessary in the interests of the safety and well-being of inmates of the facility and of the public.

Request for arbitration board

18 (1) Where the Employer and the Union have bargained collectively with a view to concluding a collective agreement but have failed to reach agreement, the Employer or the Union, or both, shall refer those terms and conditions of employment that are in dispute, and are arbitral terms and conditions of employment by Paragraph 17, to the Board and request that an arbitration board, composed of three persons, unless the parties agree to submit the collective agreement to an arbitration board of one person, be established to resolve those terms and conditions.

List with request

(2) A request by either or both of the parties under subparagraph (1) shall

(a) if it is made by the Employer, be accompanied by a list of the arbitral items it claims are in dispute and that the Employer wishes to be referred to arbitration at that time;

(b) if it is made by the Union, be accompanied by a list of the arbitral items it claims are in dispute and that the Union wishes to be referred to arbitration at that time; or

(c) if it is made jointly, be accompanied by a list of the arbitral items that each party claims are in dispute and that each wish to be referred to arbitration at that time.

Notice to party

(3) Upon receipt of a request by either party under subparagraph (1), the Board shall as soon as possible send a copy of the request and the list of arbitral items and claimed to be in dispute, to the other party.

Duty of party

(4) The party receiving the copy of the request for the appointment of an arbitration board shall within ten days of receipt of the copy send those items to the Board and send a copy of them to the other party to the dispute.

Request by either party

19 Where a request for the establishment of an arbitration board is made by either the Employer or the Union, the Board shall establish an arbitration board.

Appointment of arbitration board

20 (1) Where the Board agrees to establish an arbitration board, the Board shall notify the parties to the dispute in writing accordingly and require each party, within ten days, to

(a) where the arbitration board is to be composed of one person, attempt to agree upon a person satisfactory to both parties to be the arbitration board and, where agreement is reached, give the Board the name of the person and that person is appointed as the arbitration board and is the chair of the arbitration board; or

(b) where the arbitration board is to be composed of three persons, give the Board and the other party the name of a person to act as its nominee on the arbitration board.

Chairman

(2) The two persons appointed pursuant to clause 20(1)(b) to act as members of an arbitration board shall appoint a third person to act as a member and chair of the arbitration board within ten days of the date the second person is appointed.

Failure to appoint member

21 (1) Where the parties are unable to agree upon a person to be the arbitration board, pursuant to clause 20(1)(b), either or both parties may apply to the Board to appoint a person to be the arbitration board and the Board shall appoint such a person and that person is the chair of the arbitration board.

(1A) If the Employer or the Union fails to appoint a person as a member of an arbitration board pursuant to clause 20(1)(b), the Board shall appoint a person to act as a member on its or their behalf.

Failure to appoint chair

(2) Where the two persons appointed as members of an arbitration board, pursuant to clause 20(1)(b), fail to appoint a person to act as a member and chair of the arbitration board, the Board shall appoint a person to act as a member and chair of the arbitration board on their behalf.

Establishment of arbitration board

22 (1) Where a person or persons have been appointed to act as a member or members of an arbitration board, the Board, by notice in writing to the chair of the arbitration board, shall

(a) establish the member or members as an arbitration board; and

(b) list the arbitral items in dispute to be resolved by the arbitration board.

Dissolution

(2) An arbitration board remains constituted until it is dissolved by the Board by notice in writing to the chair of the arbitration board.

Disqualification of member

(3) No person shall be appointed a member of a board who has any direct pecuniary interest in the matters coming before it or who is acting or has, within a period of six months immediately preceding the date of appointment, acted as a solicitor, counsel or agent of either of the parties.

Casual vacancy

(4) Where a member appointed to a three-person arbitration board under Paragraph 20 or 21 ceases to act by reason of resignation, death or otherwise before the board has completed its work, the party whose point of view the member represented shall, within ten days of the member so ceasing to act, appoint a replacement and notify in writing the other party and the Board of the name and address of the replacement, and where the party fails to so appoint a replacement or to notify the Board, the Board shall appoint as a replacement such person as the Board considers suitable and the board of arbitration shall continue to function as if the replacement member were a member of the board from the beginning.

Disability of chair

(5) Where the chair of an arbitration board fails or is unable to enter on or to carry on duties so as to enable the board to render a decision within a reasonable time after its establishment, the other members of the board may appoint a new chairman or, if they fail to appoint a chair, the Board shall appoint a chair, and the arbitration shall begin de novo.

Award

23 (1) As soon as possible after making an inquiry into the arbitral items in dispute referred to it, the arbitration board shall make an award and in its award deal with each arbitral item in dispute.

Retroactive

(2) An arbitral award may be retroactive in whole or in part.

Notification of award

24 (1) Upon making an arbitral award the arbitration board shall

(a) file a copy of it with the Board; and

(b) serve a copy of it on the Employer and the Union in person or by registered mail.

Publication

(2) The Board may in any manner publish an arbitral award.

Award binding

25 (1) An arbitral award of an arbitration board is binding upon

(a) the Union and every employee in the unit on whose behalf it was bargaining collectively; and

(b) the Employer,

and the Employer and the Union shall give effect to it.

Effect of certain terms

(2) Subject to subparagraphs 27(5) and (6), the terms of an arbitral award relating to entering into, renewing or revising a collective agreement shall be included in a collective agreement.

Arbitration procedure

26 (1) Arbitration shall be conducted by an arbitration board appointed pursuant to this Act which board shall determine its own procedure but shall give full opportunity to the Union and the Employer to present evidence and make submissions to it.

[Powers of arbitration board and parties]

(2) An arbitration board established pursuant to this Act has, in relation to any proceedings before the arbitrator, the powers conferred on the Board, in relation to any proceedings before the Board, by the Labour Board Act, and the parties to the proceedings may

(a) appear and be heard and be represented by counsel; and

(b) call witnesses and examine or cross-examine all witnesses.

Jurisdiction of board

27 (1) The arbitration board has the jurisdiction to determine and render a decision only in respect of those matters referred to it by the Board.

Factors to be considered

(2) In the conduct of proceedings before it and in rendering a decision, the arbitration board may consider any factor that to it appears to be relevant to the matter in dispute including

(a) the needs of the Province and its agencies for qualified employees;

(b) where the employment is comparable or similar employment to that found in both the public and private sectors in the Province, the conditions of employment in the public and private sectors in the Province;

(c) the desirability to maintain appropriate relationships in the conditions of employment as between classifications in the public service; and

(d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, work performed, the responsibility assumed and nature of services rendered.

Decision

(3) Where a one-person arbitration board has been appointed pursuant to this Act, the decision of the chair of the arbitration board is the decision of the arbitration board and, where a three-person arbitration board has been appointed pursuant to this Act, the decision of the majority of the members of the arbitration board is the decision of the board but, where there is no majority, the decision of the chair of the arbitration board is the decision of the board.

Award to be signed

(4) Every arbitral award of the arbitration board shall be signed by the chair of the arbitration board.

Amendment of award

(5) The Board may upon application by either party to an arbitral award, within ten days after the release of the arbitral award, give the parties an opportunity to make representations thereon to the Board, and amend the arbitral award where it is shown to the satisfaction of the Board that the arbitration board has failed to deal with any matter in dispute referred to the arbitration board or that an error is apparent on the face of the arbitral award.

When award ineffective

(6) Notwithstanding that an arbitration board has rendered an arbitral award, such arbitral award is of no force and effect if the Employer and the Union enter into a collective agreement concerning the subject-matter of the arbitral award within seven days from the time the arbitral award was rendered.

Remuneration [Fees] and expenses

(7) The Union shall pay the fees and expenses of the member appointed to the arbitration board by or on behalf of the Union, the Employer shall pay the fees and expenses of the member appointed to the arbitration board by or on behalf of the Employer, and the Union and the Employer shall each pay one half of the fees of, and expenses incurred by, the chair of the arbitration board.

Restriction on collective agreement and award

28 No collective agreement or arbitral award of an arbitration board shall contain any provision which would require either directly or indirectly for its implementation the enactment or amendment of legislation.

Final settlement provision

29 (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by adjudication or otherwise, of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, concerning its meaning or violation.

Deemed provision

(2) Where a collective agreement does not contain a provision as required by this Paragraph, it shall be deemed to contain the following provision:

Where a difference arises between the parties relating to the interpretation or application of this agreement, including any question as to whether or not a matter is adjudicable within the meaning of subparagraph 29(4) of the Schedule to Part I of the Corrections Act or where an allegation is made that this agreement has been violated, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to adjudication.

Compliance

(3) Every party to and every person bound by the agreement, and every person on whose behalf the agreement was entered into, shall comply with the provision for final settlement contained in the agreement.

Grievance referred to adjudication

(4) Where a collective agreement provides for a grievance procedure and the Employer, the Union or an employee entitled under the collective agreement to present a grievance has presented a grievance up to and including the final level in the grievance process with respect to

(a) the interpretation or application in respect of the Employer, the Union or an employee of a provision of a collective agreement; or

(b) disciplinary action resulting in discharge, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the Employer, the Union or an employee, then the Employer, the Union or an employee affected may, subject to subparagraph (5), refer the grievance to adjudication.

Reference by employee

(5) Where a grievance within the meaning of subsection (4) is presented, the employee is not entitled to refer the grievance to adjudication unless the Union signifies in prescribed manner

(a) its approval of the reference of the grievance to adjudication; and

(b) its willingness to represent the employee in the adjudication proceedings.

Method of adjudication

30 (1) Where a grievance is referred to adjudication, it shall be dealt with by either a single adjudicator or a board of adjudication.

Single adjudicator

(2) Where the Employer and the Union are agreed that a matter should be referred to a single adjudicator and they are able to agree upon the adjudicator, then such adjudicator shall be appointed by the Minister.

Failure to agree

(3) Where the Employer and the Union are agreed that a matter should be referred to a single adjudicator but are unable to agree to the adjudicator within five days after a grievance is referred to adjudication, then the single adjudicator shall be appointed by the Minister.

Board of adjudication

(4) Where the Employer and the Union are unable to agree that a matter should be dealt with by a single adjudicator within five days after a grievance is referred to adjudication, then it shall be dealt with by a board of adjudication.

Composition

31 (1) When an adjudication board is required the Minister shall appoint a board which shall be composed of

(a) one member nominated by the Union;

(b) one member nominated by the Employer; and

(c) a chair appointed pursuant to subparagraph (2) or (3), all of whom shall hold office until the matter referred to the adjudication board is decided by it.

Chairman

(2) The two members appointed pursuant to subparagraph (1) shall, within five days after the day on which they are appointed, nominate a third person who is willing and ready to act to be a member and chair of the adjudication board and the Minister shall forthwith appoint that person to be a member and chair of the adjudication board.

Failure to nominate

(3) If the two members appointed under subparagraph (1) fail or neglect to make a nomination within five days after their appointment the Minister shall forthwith appoint the third member.

Parties notified of appointments

(4) When the adjudication board has been appointed, the Minister shall forthwith notify the parties of the names of the members of the board.

Decision

(5) Where there is an adjudication board, the decision of the majority of the adjudication board is the decision of the board but if there is no majority, the decision of the chair of the adjudication board is the decision of the board.

Signing and transmittal of decision

(6) Every decision of an adjudicator shall be signed by the adjudicator and in the case of an adjudication board, signed by the chair of the adjudication board and shall be transmitted to the Employer and the Union within thirty days of the last day of the hearing or such longer period as is agreed to by the parties.

Remuneration [Fees] and expenses [of single adjudicator]

(7) The Union and the Employer shall each pay one half of the fees of, and the expenses incurred by, a single adjudicator.

[Fees and expenses of adjudication board]

(8) The Union shall pay the fees and expenses of the member appointed to the adjudication board by the Union, the Employer shall pay the fees and expenses of the member appointed to the adjudication board by the Employer, and the Union and the Employer shall each pay one half of the fees of, and expenses incurred by, the chair of the adjudication board.

[Filing of decision]

(9) A copy of the decision shall be filed with the Minister of Labour and Workforce Development by the single adjudicator or by the chair of the adjudication board, as the case may be.

Exhaustion of grievance procedure

32 (1) No grievance shall be referred to adjudication and no adjudicator or adjudication board shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with.

Decision affecting collective agreement

(2) No adjudicator or adjudication board shall, in respect of any grievance, render any decision thereof the effect of which would be to require the amendment of a collective agreement.

Right to be heard

33 (1) Where a grievance is referred to adjudication, the adjudicator or adjudication board shall give both parties to the grievance an opportunity to be heard.

Compliance with decision

(2) Where a decision on any grievance referred to adjudication requires any action by or on the part of the Employer, the Employer shall take such action.

Further compliance

(3) Where a decision on any grievance requires any action by or on the part of the employee or the Union or both of them, the employee or the Union, or both, as the case may be, shall take such action.

Substitution of penalty

(4) Where an adjudicator or an adjudication board determines that an employee has been discharged or disciplined by the Employer for cause and the collective agreement does not contain a specific penalty for the infraction that is the subject of the adjudication, the adjudicator or the adjudication board has power to substitute for the discharge or discipline any other penalty that to the adjudicator or the adjudication board seems just and reasonable in the circumstances.

[Option of mediator-adjudicator]

33A (1) Notwithstanding any grievance or adjudication provision contained in a collective agreement or deemed to be contained in a collective agreement under subparagraph 29(2), the parties to a collective agreement may, at any time, agree to refer one or more grievances to a mediator-adjudicator for the purpose of resolving the grievances in an expeditious and informal manner.

[Appointment by Board]

(2) Where the parties to a collective agreement wish to make use of a mediator-adjudicator but are unable to agree upon one, the Minister shall appoint a mediator-adjudicator upon the request of the parties.

[Settlement by mediation]

(3) A mediator-adjudicator appointed under this Paragraph shall attempt to assist the parties to the collective agreement to settle the grievance by mediation.

[Adjudication]

(4) Where the parties to the collective agreement are not able to settle a grievance by mediation, the mediator-adjudicator shall attempt to assist the parties to agree upon the material facts in the dispute and shall then determine the grievance by adjudication.

[Authority of mediator-adjudicator]

(5) When determining a grievance by adjudication, a mediator-adjudicator may limit the nature and extent of evidence and submissions and may impose such conditions as the mediator-adjudicator considers appropriate.

[Decision within 30 days]

(6) A mediator-adjudicator shall deliver a decision within thirty days after completing an adjudication of a grievance.

[Application of paragraph 33]

(7) Paragraph 33 applies mutatis mutandis to a mediator-adjudicator and a settlement or decision under this Paragraph.

Lockout and strike

34 (1) The Employer shall not cause a lockout and an employee shall not strike.

Legal cessation of operation

(2) Nothing in this Act shall be interpreted to prohibit the suspension or discontinuance of operations in the Employer's establishment, in whole or in part, not constituting a lockout or strike.

No sanction of strike

35 The Union shall not sanction, encourage or support, financially or otherwise, a strike by its members or any of them who are governed by the provisions of this Schedule.

Unfair labour practice by Employer

36 The Employer or a person acting on behalf of the Employer shall not

(a) refuse to employ or terminate the employment of any person or discriminate against any person in regard to employment or any term or condition of employment because the person

(i) is a member of the Union or is an applicant for membership in the Union,

(ii) has testified or otherwise participated or may testify or otherwise participate in a proceeding under this Schedule,

(iii) has made or is about to make a disclosure that the person may be required to make in a proceeding under this Schedule, or

(iv) has made an application or filed a complaint under this Schedule;

(b) impose any condition in a contract of employment that restrains, or has the effect of restraining, an employee from exercising any right conferred upon the employee by this Schedule;

(c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or other penalty or by any other means, to compel a person to refrain from becoming or to cease to be a member, officer or representative of the Union.

Unfair labour practice by Union

37 The Union or a person acting on behalf of the Union shall not

(a) except with the consent of the Employer, attempt, at an employee's place of employment during the working hours of the employee, to persuade the employee to become, to refrain from becoming or to cease to be a member of the Union;

(b) use coercion or intimidation of any kind with respect to any employee with a view to encouraging or discouraging membership or activity in the Union;

(c) discriminate against a person in regard to employment or membership in the Union, or intimidate or coerce a person or impose a pecuniary or other penalty on a person, because the person

(i) has testified or otherwise participated or may testify or otherwise participate in a proceeding authorized or permitted under a collective agreement or a proceeding under this Schedule,

(ii) has made or is about to make a disclosure that the person may be required to make in a proceeding authorized or permitted under a collective agreement or a proceeding under this Schedule, or

(iii) has made an application or filed a complaint under this Schedule.

Question of law

38 (1) The question as to whether or not a matter is an arbitral term and condition is a question of law.

Stated case

(2) An arbitration board, adjudicator or an adjudication board may of its own motion or upon application of the employer or the Union state a case in writing for the opinion of the Nova Scotia Court of Appeal upon any question which is a question of law.

Stated case by Board

(3) A like reference to that contained in subparagraph (2) may also be made by the Board.

Duty of Court

(4) The Nova Scotia Court of Appeal shall hear and determine questions of law arising as a result of a stated case taken pursuant to subparagraph (2) or (3) and remit the matter to the arbitration board, the adjudicator, the adjudication board or the Board, whichever is appropriate under the circumstances with the opinion of the Court thereon.