When the union and employer (the parties) are negotiating a collective agreement, they may need a neutral person to help. A mediator can help the parties reach an agreement on all or some of the terms of a collective agreement.
The Labour Relations Board can appoint a mediator:
- by either party applying to the Associate Chair of Mediation
- at the request of the Minister of Labour
Either party can apply to have a mediator appointed under the Labour Relations Code, Section 74 - Mediation officer and services for help negotiating a collective agreement, whether they are negotiating a first contract or whether they have a longstanding relationship.
Parties who are negotiating a first collective agreement also have the option of applying under the Labour Relations Code, Section 55 - First collective agreement.
When can a party apply for a mediator?
Once notice to bargain has been given, either party can apply for a mediator under Section 74. However, it is up to the Associate Chair of Mediation to decide whether to appoint a mediator. The Associate Chair will consider several factors such as:
- the nature of the issues in dispute
- whether the parties have made an effort to negotiate amongst themselves
- the number of negotiation meetings held
- the number of issues outstanding
If strike or lockout notice has been served, a mediator will only be appointed if both parties agree.
The Minister of Labour has the authority to appoint a mediator under Section 74 at any time during collective bargaining.
If either party applies for first collective agreement mediation under Section 55 of the Code, the Associate Chair must appoint a mediator within five days.
Can the parties apply for mediation after strike or lockout notice is given?
Either party can apply for mediation at any time after notice to bargain is given.
If the employees are already on strike or are already locked out when an application is filed under Section 74, then job action can continue while the mediator works with the parties to resolve the collective bargaining dispute.
If the parties aren't already on strike or locked out when an application is filed under Section 74, then they can't go on strike or lock out until 48 hours after the mediator has reported out of the dispute. This is why the Associate Chair will only appoint a mediator under Section 74 if both parties agree. The Board won't permit one party to delay the other from going on strike or locking out their employees by filing for mediation under Section 74.
If the application is for first collective agreement mediation under Section 55, however, then any strike or lockout must immediately stop until the process under Section 55 is complete, the Associate Chair has directed that the collective agreement should be resolved by strike/lockout, and the applicable timelines have been met.
What happens after a mediator is appointed?
The Associate Chair will notify the parties in writing when a mediator is appointed. The mediator will contact the parties to arrange meetings. Those meetings may take place either in-person or by videoconference. The mediator will work with the parties to try to resolve the differences and conclude a collective agreement.
If the application is for first collective agreement mediation under Section 55, then the mediator will be appointed within five days. If a collective agreement isn't concluded within 20 days after the mediator is appointed, the mediator must report to the Associate Chair. That report can include recommendations about:
- what the terms and conditions of the first contract should be, and/or
- a process for resolving the ongoing collective bargaining dispute
What happens if mediation isn't successful?
Collective bargaining mediation under the Code, Section 74
If the mediator is appointed under the Code, Section 74, then either party can bring the formal process to an end by asking the mediator to report out. A party who wants the mediator to report out can do this by speaking to the mediator or telling the mediator in writing. The mediator will then advise the Associate Chair. The Associate Chair will formally confirm, in writing to the parties, that the mediator is reporting out.
The Associate Chair's letter to the parties will also confirm the start of the 48-hour period before which job action can start. The 48-hour period can run at the same time as the 72-hour strike or lockout notice period. This means that if either party gave strike or lockout notice that would have expired before the 48-hour period is up, then they can exercise their right to engage in job action at the end of the 48-hour period. However, if neither party gave strike or lockout notice (or if that notice would expire after the 48-hour period is up), they then have to wait until the 72-hour notice period expires to exercise their right to strike or lockout. Learn more about strikes and lockouts.
After reporting out of the dispute, a mediator appointed under Section 74 will remain available to help the parties to reach a collective agreement.
If the parties are bargaining a first collective agreement, they can still apply under Section 55 if Section 74 mediation isn't successful. Parties to a first contract don't have to apply under Section 74 before applying under Section 55, but nothing in the Code prevents them from doing so.
First collective agreement negotiations under the Code, Section 55
If the mediator is appointed under the Code, Section 55 and the parties aren't able to conclude a first collective agreement within 20 days of the mediator's appointment, then the mediator must report to the Associate Chair and recommend:
- the terms and conditions of a first collective agreement, and/or
- what process the parties should be able to access to resolve the dispute
If the mediator recommends terms and conditions, and the parties agree to those terms and conditions, then they become the first collective agreement between the parties.
If the mediator doesn't recommend terms and conditions or the parties disagree with the mediator's recommendations, then the parties must tell the Associate Chair how they think the collective bargaining dispute should be resolved. After hearing from the parties, the Associate Chair will direct the parties to resolve their dispute by one of three processes outlined in Section 55(6):
- further mediation by someone with the authority to impose a first collective agreement if further mediation isn't successful, or
- binding arbitration, or
- by allowing the parties to exercise their right to strike or lockout
The parties aren't allowed to exercise their right to strike or lockout after Section 55 mediation unless and until the Associate Chair directs them that they can.
How to apply for a mediator
To apply for a mediator:
- Complete the Application for a Mediator Form
- Indicate whether the application is for collective bargaining mediation or first collective agreement mediation.
- Include all of the relevant information the Board requires:
- If the application is made under Section 74 (collective bargaining mediation), include a statement of issues the parties have and have not agreed to in bargaining
- If the application is made under Section 55 (first contract mediation), include a list of the disputed issues and the applying party's position with respect to them.
- Submit the application by email, mail, or courier to the attention of the Associate Chair of Mediation
- Serve the other party as required by the Rules
- Arrange to pay the $100 filing fee
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.