An Act to amend the Federal Public Sector Labour Relations Act and other Acts (S.C. 2018, c. 24)
Full Document:
Assented to 2018-11-26
An Act to amend the Federal Public Sector Labour Relations Act and other Acts
S.C. 2018, c. 24
Assented to 2018-11-26
An Act to amend the Federal Public Sector Labour Relations Act and other Acts
SUMMARY
This enactment amends the Federal Public Sector Labour Relations Act to restore the procedures for the choice of process of dispute resolution including those involving essential services, arbitration, conciliation and alternative dispute resolution that existed before December 13, 2013.
It also amends the Public Sector Equitable Compensation Act to restore the procedures applicable to arbitration and conciliation that existed before December 13, 2013.
It repeals provisions of the Economic Action Plan 2013 Act, No. 2 that are not in force that amend the Federal Public Sector Labour Relations Act, the Canadian Human Rights Act, and the Public Service Employment Act and it repeals not in force provisions of the Economic Action Plan 2014 Act, No. 1 that amend those provisions.
It repeals Division 20 of Part 3 of the Economic Action Plan 2015 Act, No. 1, which authorizes the Treasury Board to establish and modify, despite the Federal Public Sector Labour Relations Act, terms and conditions of employment related to the sick leave of employees who are employed in the core public administration.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
2003, c. 22, s. 2; 2017, c. 9, s. 2Federal Public Sector Labour Relations Act
Amendments to the Act
Marginal note:2013, c. 40, s. 294(2)
1 (1) The definition essential service in subsection 4(1) of the Federal Public Sector Labour Relations Act is replaced by the following:
- essential service
essential service means a service, facility or activity of the Government of Canada that is or will be, at any time, necessary for the safety or security of the public or a segment of the public. (services essentiels)
(2) Subsection 4(1) of the Act is amended by adding the following in alphabetical order:
- essential services agreement
essential services agreement means an agreement between the employer and the bargaining agent for a bargaining unit that identifies
(a) the types of positions in the bargaining unit that are necessary for the employer to provide essential services;
(b) the number of those positions that are necessary for that purpose; and
(c) the specific positions that are necessary for that purpose. (entente sur les services essentiels)
(3) Section 4 of the Act is amended by adding the following after subsection (1):
Marginal note:When position is necessary
(2) A position that is necessary for the employer to provide essential services for the purposes of paragraph (a) of the definition essential services agreement in subsection (1) includes a position the occupant of which is required, at any time,
(a) to perform the duties of the position that relate to the provision of essential services; or
(b) to be available during his or her off-duty hours to report to work without delay to perform those duties if required to do so by the employer.
2 Section 39 of the Act is amended by adding the following after paragraph (g):
(h) the manner of giving notices referred to in subsection 103(1), and the form of those notices, and the manner of making applications referred to in subsection 104(1), and the form of those applications;
3 Section 67 of the Act is amended by striking out “and” at the end of paragraph (c), by adding “and” at the end of paragraph (d) and by adding the following after paragraph (d):
(e) the employee organization is substituted as a party to any essential services agreement that is in force, in the place of the bargaining agent named in the agreement or its successor.
Marginal note:2013, c. 40, s. 300; 2017, c. 9, s. 12
4 Subsections 79(1) and (2) of the Act are replaced by the following:
Marginal note:Mergers, amalgamations and transfers of jurisdiction
79 (1) If, by reason of a merger or an amalgamation of employee organizations or a transfer of jurisdiction among employee organizations, other than as a result of a revocation of certification, an employee organization succeeds another one that, at the time of the merger, amalgamation or transfer of jurisdiction, is a bargaining agent, the successor is deemed to have acquired the rights, privileges and duties of its predecessor, whether under a collective agreement, an arbitral award, an essential services agreement or otherwise.
Marginal note:Board to determine questions
(2) If any question arises in respect of a merger, amalgamation or transfer of jurisdiction referred to in subsection (1) concerning the rights, privileges and duties of an employee organization under this Part or Division 1 of Part 2.1 or under a collective agreement, an arbitral award or an essential services agreement in respect of a bargaining unit or an employee in a bargaining unit, the Board, on application by the employer or any person or employee organization concerned, must determine what rights, privileges and duties have been acquired or are retained.
5 Subsection 101(1) of the Act is amended by striking out “and” at the end of paragraph (a), by adding “and” at the end of paragraph (b) and by adding the following after paragraph (b):
(c) subject to paragraph 67(e), any essential services agreement that is in force in respect of positions in the bargaining unit ceases to be in force.
Marginal note:2013, c. 40, s. 302
6 Division 6 of Part 1 of the Act is replaced by the following:
DIVISION 6Choice of Process for Dispute Resolution
Marginal note:Choice of process
103 (1) A bargaining agent for a bargaining unit must notify the Board, in accordance with the regulations, of the process it has chosen — either arbitration or conciliation — to be the process for the resolution of disputes to which it may be a party.
Marginal note:Recording of process
(2) The Board must record the process chosen by the bargaining agent for the resolution of disputes.
Marginal note:Period during which process to apply
(3) The process recorded by the Board applies to the bargaining unit for the resolution of all disputes from the day on which a notice to bargain collectively in respect of the bargaining unit is given after the process is chosen, and it applies until the process is changed in accordance with section 104.
Marginal note:Change of process
104 (1) A bargaining agent for a bargaining unit that wishes to change the process for the resolution of a dispute that is applicable to the bargaining unit may apply to the Board, in accordance with the regulations, to record the change.
Marginal note:Recording of change
(2) On receiving the application, the Board must record the change of process.
Marginal note:Effective date and duration
(3) A change in the process for the resolution of a dispute becomes effective on the day that a notice to bargain collectively is given after the change is recorded and remains in force until the process is changed in accordance with this section.
Marginal note:2013, c. 40, s. 303
7 (1) Subsection 105(1) of the Act is replaced by the following:
Marginal note:Notice to bargain collectively
105 (1) After the Board has certified an employee organization as the bargaining agent for a bargaining unit and the process for the resolution of a dispute applicable to that bargaining unit has been recorded by the Board, the bargaining agent or the employer may, by notice in writing, require the other to commence bargaining collectively with a view to entering into, renewing or revising a collective agreement.
Marginal note:2013, c. 40, s. 303
(2) The portion of paragraph 105(2) of the Act before paragraph (a) is replaced by the following:
Marginal note:When notice may be given
(2) The notice to bargain collectively may be given
Marginal note:2013, c. 40, s. 303
(3) Paragraph 105(2)(b) of the Act is replaced by the following:
(b) if a collective agreement or arbitral award is in force, within the four months before it ceases to be in force.
Marginal note:2013, c. 40, s. 303
(4) Subsection 105(2.1) of the Act is repealed.
Marginal note:2013, c. 40, s. 304(1)
8 The portion of section 107 of the Act before paragraph (a) is replaced by the following:
Marginal note:Duty to observe terms and conditions
107 Unless the parties otherwise agree, and subject to section 132, after the notice to bargain collectively is given, each term and condition of employment applicable to the employees in the bargaining unit to which the notice relates that may be included in a collective agreement, and that is in force on the day the notice is given, is continued in force and must be observed by the employer, the bargaining agent for the bargaining unit and the employees in the bargaining unit until a collective agreement is entered into in respect of that term or condition or
Marginal note:2013, c. 40, s. 305
9 Sections 119 to 125 of the Act are replaced by the following:
Marginal note:Application of Division
119 This Division applies to the employer and the bargaining agent for a bargaining unit when the process for the resolution of a dispute applicable to the bargaining unit is conciliation.
Marginal note:Employer determines levels of service
120 The employer has the exclusive right to determine the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided. Nothing in this Division is to be construed as limiting that right.
Marginal note:Proportion of duties may vary during strike
121 (1) For the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, the employer and the bargaining agent may agree that some employees in the bargaining unit will be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.
Marginal note:Determination of number of necessary employees
(2) For the purposes of subsection (1), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined
(a) without regard to the availability of other persons to provide the essential service during a strike; and
(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.
Marginal note:Obligation to negotiate
122 (1) If the employer has given to the bargaining agent a notice in writing that the employer considers that employees in the bargaining unit occupy positions that are necessary for the employer to provide essential services, the employer and the bargaining agent must make every reasonable effort to enter into an essential services agreement as soon as feasible.
Marginal note:Timing
(2) The notice may be given at any time but not later than 20 days after the day a notice to bargain collectively is given.
Marginal note:Application to the Board
123 (1) If the employer and the bargaining agent are unable to enter into an essential services agreement, either of them may apply to the Board to determine any unresolved matter that may be included in an essential services agreement. The application may be made at any time but not later than
(a) 15 days after the day a request for conciliation is made by either party; or
(b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.
Marginal note:Delay
(2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to enter into an essential services agreement.
Marginal note:Powers of Board
(3) After considering the application, the Board may determine any matter that the employer and the bargaining agent have not agreed on that may be included in an essential services agreement and make an order
(a) deeming the matter determined by it to be part of an essential services agreement between the employer and the bargaining agent; and
(b) deeming that the employer and the bargaining agent have entered into an essential services agreement.
Marginal note:Restriction
(4) The order must not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.
Marginal note:Proportion of duties may vary during strike
(5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform those of their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.
Marginal note:Determination of number of necessary employees
(6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined
(a) without regard to the availability of other persons to provide the essential service during a strike; and
(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.
Marginal note:Application relating to specific position
(7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.
Marginal note:Coming into force of agreement
124 The essential services agreement comes into force on the day it is signed by the parties or, in the case of an essential services agreement that the employer and the bargaining agent are deemed to have entered into by an order made under paragraph 123(3)(b), the day the order was made.
Marginal note:Duration
125 An essential services agreement continues in force until the parties jointly determine that there are no employees in the bargaining unit who occupy positions that are necessary for the employer to provide essential services.
Marginal note:Notice to negotiate amendment
126 (1) If a party to an essential services agreement gives a notice in writing to the other party that the party giving the notice seeks to amend the essential services agreement, the parties must make every reasonable effort to amend it as soon as feasible.
Marginal note:Timing
(2) If a collective agreement or arbitral award is in force, the notice may be given at any time except that, if a notice to bargain collectively has been given with a view to renewing or revising the collective agreement, the notice may only be given during the 60 days following the day the notice to bargain collectively was given.
Marginal note:Application to Board
127 (1) If the employer and the bargaining agent are unable to amend the essential services agreement, either of them may apply to the Board to amend the essential services agreement. The application may be made at any time but not later than
(a) 15 days after the day a request for conciliation is made by either party; or
(b) 15 days after the day the parties are notified by the Chairperson under subsection 163(2) of his or her intention to recommend the establishment of a public interest commission.
Marginal note:Delay
(2) The Board may delay dealing with the application until it is satisfied that the employer and the bargaining agent have made every reasonable effort to amend the essential services agreement.
Marginal note:Amendment by Board
(3) The Board may, by order, amend the essential services agreement if it considers that the amendment is necessary for the employer to provide essential services.
Marginal note:Restriction
(4) The order must not require the employer to change the level at which an essential service is to be provided to the public, or a segment of the public, at any time, including the extent to which and the frequency with which the service is to be provided.
Marginal note:Proportion of duties may vary during strike
(5) The Board may, for the purpose of identifying the number of positions that are necessary for the employer to provide an essential service, take into account that some employees in the bargaining unit may be required by the employer to perform their duties that relate to the provision of the essential service in a greater proportion during a strike than they do normally.
Marginal note:Determination of number of necessary employees
(6) For the purposes of subsection (5), the number of employees in the bargaining unit that are necessary to provide the essential service is to be determined
(a) without regard to the availability of other persons to provide the essential service during a strike; and
(b) on the basis that the employer is not required to change, in order to provide the essential service during a strike, the manner in which the employer operates normally, including the normal hours of work, the extent of the employer’s use of overtime and the equipment used in the employer’s operations.
Marginal note:Application relating to specific position
(7) If the application relates to a specific position to be identified in the essential services agreement, the employer’s proposal in respect of the position is to prevail, unless the position is determined by the Board not to be of the type necessary for the employer to provide essential services.
Marginal note:Coming into force of amendment
128 An amendment to an essential services agreement comes into force on the day the agreement containing the amendment is signed by the parties or, in the case of an amendment made by order of the Board under subsection 127(3), the day the order was made.
Marginal note:Replacement positions
129 (1) If, at any time while an essential services agreement is in force, a position identified in it becomes vacant, the employer may identify a position of the same type as a replacement position. If the employer does so, the employer must file a notice of replacement with the Board and provide a copy to the bargaining agent.
Marginal note:Effect of notice
(2) On the filing of the notice, the replacement position is deemed to be a position identified in the essential services agreement and the position it replaced is deemed to be no longer identified.
Marginal note:Notification of employees
130 (1) The employer must provide every employee who occupies a position that has been identified in an essential services agreement as being a position that is necessary for the employer to provide essential services with a notice informing the employee that the employee occupies such a position.
Marginal note:Notification of change
(2) A notice given under this section remains valid so long as the employee continues to occupy the position unless the employer notifies the employee that the position occupied by the employee is no longer necessary for the employer to provide essential services.
Marginal note:Emergency application
131 Despite any provision in this Division, if either the employer or the bargaining agent is of the opinion that a temporary amendment to an essential services agreement, or its suspension, is necessary because of an emergency but the parties are unable to agree to do so, either of them may, at any time, apply to the Board for an order temporarily amending, or suspending, the agreement.
Marginal note:Duty to observe terms and conditions
132 Unless the parties otherwise agree, every term and condition of employment applicable to employees in a bargaining unit in respect of which a notice to bargain collectively is given that may be included in a collective agreement and that is in force on the day the notice is given remains in force in respect of any employee who occupies a position that is identified in an essential services agreement and must be observed by the employer, the bargaining agent for the bargaining unit and the employee until a collective agreement is entered into.
Marginal note:Extension of time
133 The Board may, on the application of either party, extend any period referred to in this Division.
Marginal note:Filing of essential services agreement
134 Either party to an essential services agreement may file a copy of it with the Board. When filed, it has the same effect as an order of the Board.
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