Expenditure Restraint Act (S.C. 2009, c. 2, s. 393)

Non-represented and Excluded Employees

Marginal note:Definitions

• 35 (1) The following definitions apply in sections 36 to 54.

  employee

  employee means an employee who is not represented by a bargaining agent or who is excluded from a bargaining unit. (employé)

  terms and conditions of employment

  terms and conditions of employment means terms and conditions of employment that apply to employees. (condition d’emploi)

• Marginal note:When terms and conditions of employment are considered to be established

  (2) For the purposes of sections 36 to 54, terms and conditions of employment are considered to be established if they are established by an employer acting alone or agreed to by an employer and employees.

Marginal note:Increases to rates of pay — terms and conditions established after coming into force

• 36 (1) Terms and conditions of employment established after the day on which this Act comes into force may not provide for increases to rates of pay that are greater than those set out in section 16, but they may provide for increases that are lower.

• Marginal note:12-month periods

  (2) For greater certainty, terms and conditions of employment established after the day on which this Act comes into force that provide for increases to rates of pay for any period that begins during the restraint period must do so on the basis of a 12-month period.

Marginal note:Increases to rates of pay — terms and conditions of employment — December 8, 2008 until coming into force

37 The provisions of any terms and conditions of employment established during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force that provide, for any particular period, for an increase to rates of pay that are greater than those referred to in section 16 for that particular period are of no effect or are deemed never to have had effect, as the case may be, and are deemed to be provisions that provide for the increases referred to in section 16.

Marginal note:Increases to rates of pay — terms and conditions of employment — before December 8, 2008

38 With respect to any terms and conditions of employment established before December 8, 2008 that provide for increases to rates of pay

• (a) section 16 does not apply in respect of any period that began during the 2006–2007 or 2007–2008 fiscal year; and

• (b) for any 12-month period that begins during any of the 2008–2009, 2009–2010 and 2010–2011 fiscal years, section 16 applies only in respect of periods that begin on or after December 8, 2008 and any provisions of those terms and conditions of employment that provide, for any particular period, for increases to rates of pay that are greater than those referred to in section 16 for that particular period are of no effect or are deemed never to have had effect, as the case may be, and are deemed to be provisions that provide for the increases referred to in section 16.

Marginal note:Other than 12-month periods — section 37

39 If any terms and conditions of employment to which section 37 applies provide for an increase to rates of pay for a period of other than 12 months that begins during any particular fiscal year in the restraint period, that increase is of no effect or is deemed never to have had effect, as the case may be, and the increase is deemed to be an increase for that period of other than 12 months, determined on an annualized basis to the nearest 1/100%, that provides for the increase referred to in section 16 for a period that begins during that particular fiscal year.

Marginal note:Other than 12-month periods — section 38

40 If any terms and conditions of employment to which section 38 applies provide for an increase to rates of pay for a period of other than 12 months that begins during any particular fiscal year that begins during the period that begins on December 8, 2008 and ends on March 31, 2011, that increase is of no effect or is deemed never to have had effect, as the case may be, and is deemed to be an increase for that period of other than 12 months, determined on an annualized basis to the nearest 1/100%, that provides for the increases referred to in section 16 in respect of a period that begins during that particular fiscal year.

Marginal note:Lower percentages not affected

41 If any terms and conditions of employment to which section 37 or 38 apply provide for an increase to the rates of pay for any particular period that is lower than the increase referred to in section 16 for that period, section 16 does not apply in respect of that increase.

Marginal note:Section 16 does not create authority to increase

42 If any terms and conditions of employment established before, on or after the day on which this Act comes into force do not provide for an increase to the rates of pay for any particular period that begins during the restraint period, section 16 is not to be construed as authorizing any increase to those rates of pay.

Marginal note:Restructuring prohibited

43 Subject to sections 51 to 54,

• (a) no provision of terms and conditions of employment established after the day on which this Act comes into force may provide for the restructuring of rates of pay during any period that begins during the restraint period;

• (b) any provision of terms and conditions of employment established during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force that provides for the restructuring of rates of pay during any period that begins during the restraint period is of no effect or is deemed never to have had effect, as the case may be; and

• (c) any provision of terms and conditions of employment established before December 8, 2008 that provides for the restructuring of rates of pay during any period that begins during the period that begins on December 8, 2008 and ends on March 31, 2011 is of no effect or is deemed never to have had effect, as the case may be.

Marginal note:No increases to additional remuneration — after coming into force

44 No terms and conditions of employment established after the day on which this Act comes into force may provide, for any period that begins during the restraint period, for any increase to the amount or rate of any additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before those terms and conditions of employment become effective.

Marginal note:No increases to additional remuneration — December 8, 2008 until coming into force

45 If any terms and conditions of employment established at any time during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force contain provisions that provide, for any period that begins during the restraint period, for an increase to the amount or rate of any additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before those provisions became effective, those provisions are of no effect or are deemed never to have had effect, as the case may be.

Marginal note:No increases to additional remuneration — before December 8, 2008

46 If any terms and conditions of employment established before December 8, 2008 contain provisions that, for any period that begins in the period that begins on December 8, 2008 and ends on March 31, 2011, provide for an increase to the amount or rate of any additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before the first period that began on or after December, 8, 2008, those provisions are of no effect or are deemed never to have had effect, as the case may be.

Marginal note:No new additional remuneration — after coming into force

47 No terms and conditions of employment established after the day on which this Act comes into force may provide, for any period that begins during the restraint period, for any additional remuneration that is new in relation to the additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before the terms and conditions of employment become effective.

Marginal note:No new additional remuneration — December 8, 2008 until coming into force

48 If any terms and conditions of employment established at any time during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force contain, in relation to any employees, a provision that provides, for any period that begins during the restraint period, for any additional remuneration that is new in relation to the additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before the effective date of the provisions, that provision is of no effect or is deemed never to have had effect, as the case may be.

Marginal note:No new additional remuneration — before December 8, 2008

49 If any terms and conditions of employment established before December 8, 2008 contain, in relation to any employees, a provision that provides, for any period that begins in the period that begins on December 8, 2008 and ends on March 31, 2011, for any additional remuneration that is new in relation to the additional remuneration that applied to the employees governed by those terms and conditions of employment immediately before the first period that began on or after December 8, 2008, that provision is of no effect or is deemed never to have had effect, as the case may be.

Marginal note:Canada Border Services Agency

50 Sections 44 to 46 do not apply in respect of pay notes applicable only to employees in the Canada Border Services Agency who were transferred to the Agency on its creation, but the rates of those pay notes may not be increased during any period that begins in any of the fiscal years referred to in section 16 by a percentage that is higher than the percentage set out in that section for that fiscal year.

Marginal note:Border Services Group

51 The following rules apply in respect of terms and conditions of employment governing employees in the Border Services Group whose employer is Her Majesty as represented by the Treasury Board:

• (a) if the restructuring permitted by paragraph 31(a) occurs, paragraph 43(a) does not prevent terms and conditions of employment established after the day on which this Act comes into force from restructuring, as a result of a classification conversion, the rates of pay during the 2007–2008 or 2009–2010 fiscal year, and the increases set out in section 16 apply in respect of the restructured rates of pay;

• (b) if any terms and conditions of employment were established during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force and, as a result of a classification conversion, they contain provisions for the restructuring of rates of pay during the 2007–2008 or 2009–2010 fiscal year and the restructuring permitted by paragraph 31(b) occurs, paragraph 43(b) does not apply in respect of those provisions, and the increases set out in section 16 apply in respect of the restructured rates of pay; and

• (c) if any terms and conditions of employment were established before December 8, 2008 and, as a result of a classification conversion, they contain provisions for the restructuring of rates of pay during the 2009–2010 fiscal year and the restructuring permitted by paragraph 31(c) occurs, paragraph 43(c) does not apply in respect of those provisions, and the increase set out in section 16 applies in respect of the restructured rates of pay.

Marginal note:Groups subject to national rates of pay

52 The following rules apply in respect of terms and conditions of employment governing employees in the Operational Services Group whose employer is Her Majesty as represented by the Treasury Board and employees in the General Labour and Trades Group and the General Services Group whose employer is Her Majesty as represented by the Parks Canada Agency or Her Majesty as represented by the Canadian Food Inspection Agency:

• (a) if the restructuring permitted by paragraph 32(a) occurs, paragraph 43(a) does not prevent terms and conditions of employment established after the day on which this Act comes into force from restructuring rates of pay during the 2009–2010 fiscal year in order to create national rates of pay, and the increase set out in section 16 applies in respect of the restructured rates of pay;

• (b) if any terms and conditions of employment were established during the period that begins on December 8, 2008 and ends on the day on which this Act comes into force and, in order to create national rates of pay, they contain provisions for the restructuring of rates of pay during the 2009–2010 fiscal year and the restructuring permitted by paragraph 32(b) occurs, paragraph 43(b) does not apply in respect of those provisions, and the increase set out in section 16 applies in respect of the restructured rates of pay; and

• (c) if any terms and conditions of employment were established before December 8, 2008 and, in order to create national rates of pay, they contains provisions for the restructuring of rates of pay during the 2009–2010 fiscal year and the restructuring permitted by paragraph 32(c) occurs, paragraph 43(c) does not apply in respect of those provisions, and the increase set out in section 16 applies in respect of the restructured rates of pay.

Marginal note:Ships’ Officers Group

53 The following rules apply in respect of terms and conditions of employment established before December 8, 2008 that govern employees in the Ships’ Officers Group whose employer is Her Majesty as represented by the Treasury Board:

• (a) paragraph 43(c) does not apply in respect of the provisions of those terms and conditions of employment that provide for the restructuring of rates of pay during the 2010–2011 fiscal year, and the increase set out in section 16 applies in respect of the restructured rates of pay; and

• (b) section 49 does not apply in respect of the provisions of those terms and conditions of employment that provide for the payment, during the 2010–2011 fiscal year, of a sum in lieu of vacation leave factors.

Marginal note:Law Group

• 54 (1) The following rules apply in respect of terms and conditions of employment governing employees in the Law Group whose employer is Her Majesty as represented by the Treasury Board, and in respect of any period that begins during the restraint period:

  • (a) in the case where the terms and conditions of employment are established after the day on which this Act comes into force,

    • (i) the provisions of those terms and conditions of employment that provide for increases to rates of pay may not have retroactive effect in respect of a day that is earlier than May 10, 2006,

    • (ii) any increase to rates of pay that the terms and conditions of employment provide for in respect of any period that begins during the 2006–2007 fiscal year must be based on the rates of pay set out in Schedule 2,

    • (iii) the provisions of those terms and conditions of employment must provide, for all employees of the Law Group, for the same performance pay plans that were in effect on May 9, 2006 for any employees in the Law Group and, in relation to any particular position level, those plans must be at the same amounts or rates that were in effect for that position level on that date but those plans may not have retroactive effect, and

    • (iv) the provisions of those terms and conditions of employment may provide for any additional remuneration — other than a performance bonus — that applied to any position level in the Law Group on May 9, 2006, but the amount or rate of that additional remuneration for a particular position level may not be greater than the highest amount or rate that applied to employees of that position level on that date, and

    • (v) those terms and conditions of employment may not provide for additional remuneration if that additional remuneration applied to no employee in the Law Group on May 9, 2006; and

  • (b) in the case where the terms and conditions of employment were established on or before the day on which this Act comes into force,

    • (i) if any of their provisions have retroactive effect in respect of a day that is earlier than May 10, 2006, that retroactive effect is deemed never to have had effect, the provision is deemed to have had retroactive effect as of May 10, 2006 and the first day of every other period referred to in that provision is deemed to be moved forward by the number of days that is equal to the number of days between the first day the provision was expressed to have retroactive effect and May 10, 2006,

    • (ii) if the increase provided to rates of pay for any period that begins during the 2006–2007 fiscal year is based on rates of pay that are greater than those set out in Schedule 2, those greater rates of pay are of no effect or are deemed never to have had effect, as the case may be, and the increase is deemed to be based on the rates of pay set out in Schedule 2,

    • (iii) if subparagraph (ii) applies, the provisions of the terms and conditions of employment that provide for rates of pay for every other period that begins on or before March 31, 2011 are of no effect or are deemed never to have had effect, as the case may be, and the rates of pay in those provisions are deemed to be the rates of pay that applied immediately before the beginning of that period as a result of this Act,

    • (iv) if those terms and conditions of employment provide for performance pay plans and those plans are not the same as those that were in effect on May 9, 2006 for any employees in the Law Group or the amounts or rates provided for in those plans in relation to any particular position level are not the same as those of the performance pay plans that were in effect on that date — or the plans were expressed to be retroactive — the provisions that provide for those plans are of no effect or are deemed never to have had effect, as the case may be, and are deemed to be provisions that provide, for all employees in the Law Group, as of the day that the terms and conditions of employment were established, for the same performance pay plans that were in effect on May 9, 2006 for any employees in the Law Group at the same amounts or rates, in relation to any particular position level, that were in effect on that date,

    • (v) if those terms and conditions of employment do not provide for performance pay plans, they are deemed to provide, for all employees in the Law Group, as of the day that they were established, for the same performance pay plans that were in effect on May 9, 2006 for any employees in the Law Group at the same amounts or rates, in relation to any particular position level, that were in effect on that date,

    • (vi) if those terms and conditions of employment provide for any additional remuneration — other than a performance bonus — that applied to any position level in the Law Group on May 9, 2006, and the amount or rate of that additional remuneration for a particular position level is greater than the highest amount or rate that applied to any employees of that position level on that date, the provisions that provide for that payment are deemed to be of no effect or are deemed never to have had effect, as the case may be, and are deemed to provide for the highest amount or rate, as the case may be, that applied in respect of any of those employees on that date, and

    • (vii) if those terms and conditions of employment provide for any additional remuneration, and that additional remuneration applied to no employee in the Law Group on May 9, 2006, the provision that provides for that payment is of no effect or is deemed never to have had effect, as the case may be.

• Marginal note:Other provisions apply

  (2) For greater certainty, the provisions of this Act that are not inconsistent with subsection (1) apply to terms and conditions of employment governing employees in the Law Group.