Stewart McKelvey

7 Doing Business in AtlAntic cAnADA Fall 2014 Labour Relations Act, there are certain specifi c legisla- tive provisions that make the NL offshore workplace a unique labour relations regime. Because installations are remote and there are inherent dangers in shutting down an operation over 300 kms offshore, the Labour Relations Act has mechanisms designed to limit the number of opportunities for strikes or work stoppages. The key point for employers to recognize is that an offshore installation bargaining unit is set by statute, unlike the usual certifi cation process where "commun- ity of interest" of the employees is considered by the labour board. This is not hard to understand, as an offshore platform is arguably a community unto itself. The bargaining unit on an offshore installation is mandated by the NL statute to be as follows: The unit appropriate for collective bargaining is the unit comprising all the employees employed on the platform except those employees the board deter- mines are employed in construction and startup on the platform. (section 38.1(1) of the Labour Rela- tions Act) [emphasis added] During the Hibernia platform certifi cation process, the NL labour board clarifi ed the meaning of "em- ployed on the platform", saying these employees had to have a "signifi cant attachment to the platform" (i.e., "should return to work for more than one tour of duty, and should perform work similar to the steady state workforce"). The labour board's test was based on the notion that more than one 21-day "hitch" on the platform in a three-month period indicates a "signifi - cant attachment". The result was that employees of 14 contractors who employed employees on the Hibernia platform were unionized. Two issues have arisen under this arrangement, with the fi rst being the interaction between collective agree- ment rights of employees on an offshore installation and those rights arising under individual contracts of employment, or other collective agreements, that may govern onshore. For example, of the 14 employers on the Hibernia platform governed by the certifi cation order, at least one is governed by a different collect- ive agreement while their employees are onshore. The other employers have seperate terms and conditions of employment which apply onshore. Further, on oc- casion, employees will travel to different offshore in- stallations that may or may not be unionized. While it is generally understood that the offshore collective agreement operates while the employee is on a specifi c ages offshore activities. In June 2014, the federal gov- ernment amended the Accord Acts and other Acts to provide for certain measures applicable to the off- shore. This amendment set forth a part dealing with occupational health and safety that establishes a new occupational health and safety regime in the offshore and to the transportation of persons in transit to, from or between offshore workplaces. The new legislation does not remove the authority of provincial occupa- tional health and safety legislation, but clarifi es roles and responsibilities of workplace parties. It also pro- vides clear and specifi c enforcement powers for occu- pational health and safety offi cers, including powers of inspection and investigation and the ability to order actions in case of dangerous situations. The NL and NS governments are working together with the federal government to determine a date for when the enact- ment will come into effect. Offshore employers need to ensure they are ad- dressing safety, workers' compensation and labour relations issues within the context of all applicable legislation. LocAL Benefits Operators considering offshore work should be aware of the requirement in the Accord Acts to have local benefi t plans approved by the CNLOPB or the CNSOPB. In NL, under the Hibernia benefi ts plan, Hibernia does not commit to a quota or specifi c levels of local employment, but rather to a series of basic principles, namely the principles of "fair oppor- tunity" and "fi rst consideration". Operators are also obliged to ensure that their contractors comply with committed principles. In NS, similar basic principles come into play including "full and fair opportunity" and "fi rst consideration". nL sPeciAL Projects In NL, construction work com- pleted in the province phase has typically been done through a "special project" designation. A "spe- cial project" is a provincial government designation through regulation that deems the project to be union- ized solely for the purposes of construction, and re- quires a collective agreement between a council of trade unions, and an employers' association to last for the duration of construction. The goal of a "special project" is to prevent strikes and lockouts throughout the construction stage. Currently, the construction of the Hebron project is being carried out as a "special project". nL LABour reLAtions during steAdy stAte oPer- Ations While labour relations are governed by the NL 1 canada-newfoundland Atlantic Accord implementation Act, sc 1987 c3 and its companion newfoundland legislation, canada-newfoundland Atlantic Accord implementation newfoundland Act, Rsnl 1990, c c-2 and nova scotia legislation, canada-nova scotia offshore Petroleum Resources Accord implementation (nova scotia) Act. 1987, c. 3.

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