Unions and employers have to bargain in good faith but if negotiations have come to a standstill or the parties are deadlocked about something, they don’t have to keep trying to bargain. They have a number of options. They can:

  • ask the Employment Mediation Services for free assistance
  • agree that collective bargaining has ended and they will stop negotiating
  • strike and/or lock out employees to try to get things moving again
  • ask the ERA to facilitate bargaining
  • ask the ERA to fix the terms of the collective agreement (if there is a serious and sustained breach of good faith).

How the ERA can help

Facilitation of bargaining

If collective bargaining runs into problems, one or more of the bargaining employers and unions can ask the ERA to facilitate their bargaining. The ERA can only facilitate their bargaining if:

  • there has been a serious and sustained breach of good faith that has undermined the collective bargaining, or
  • the bargaining has been unduly protracted and extensive efforts including mediation haven’t been able to resolve the problems, or
  • there has been an extended or unfriendly strike or lockout action, or
  • a proposed strike or lockout is likely to substantially affect the public interest.

If the Authority agrees to help the parties, the Authority member who facilitates will decide what process will be used to help bargaining and the facilitation will be conducted in private.

The bargaining continues during facilitation, and employers and employees can still use strikes and lockouts.

ERA recommendations

  • At the end of the facilitation process, the Authority can make recommendations about:
    • the process the parties should use to reach agreement, and/or
    • the terms and conditions of the collective agreement.
  • The parties don’t have to follow these recommendations, but they must consider them in good faith first.
  • The Authority may choose to make their recommendations public in the interests of encouraging a settlement.

Fixing the terms of a collective agreement after serious and sustained breach of good faith

A party can apply to the ERA to fix the terms of a collective agreement. They can only do this if:

  • it is appropriate, and
  • there has been breach of good faith in the bargaining that was so serious and ongoing that it significantly undermined the bargaining, and
  • all other reasonable alternatives have been used up, and
  • setting the terms is the only effective remedy available.

The effect of fixing the terms of a collective

If the ERA fix the terms of a collective, this means that the ERA decides what all the terms of the agreement will be. It becomes a binding and enforceable collective employment agreement just as if it had been agreed, ratified and signed by the parties.

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